JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
3 July 2014 (*)
(Common foreign and security policy — Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Action for annulment — Period allowed for commencing proceedings — Admissibility — Obligation to state reasons — Error of assessment)
In Case T‑181/13,
Sharif University of Technology, established in Tehran (Iran), represented by M. Happold, Barrister,
applicant,
v
Council of the European Union, represented by V. Piessevaux and M. Bishop, acting as Agents,
defendant,
APPLICATION for annulment of (i) Council Decision 2012/829/CFSP of 21 December 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 356, p. 71), in so far as it listed the applicant in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39) and (ii) Council Implementing Regulation (EU) No 1264/2012 of 21 December 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 356, p. 55), in so far as it listed the applicant in Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1),
THE GENERAL COURT (Seventh Chamber),
composed of M. van der Woude (Rapporteur), President, I. Wiszniewska-Białecka and I. Ulloa Rubio, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 30 January 2014,
gives the following
Judgment
Background to the dispute
1 This case has been brought in connection with the restrictive measures introduced in order to apply pressure on the Islamic Republic of Iran to end proliferation sensitive nuclear activities and the development of nuclear weapon delivery systems.
2 The applicant, Sharif University of Technology, is an institution of higher education and research located in Tehran, Iran. Founded in 1966, it specialises in technology, engineering and the physical sciences.
3 On 26 July 2010 the Council of the European Union adopted Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39). Table IB of Annex II to that decision contains the list of names of entities who are either involved in nuclear or ballistic missiles activities or who support the Government of the Islamic Republic of Iran and whose assets are to be frozen pursuant to Article 20 of that decision.
4 Article 20(1)(b) of Decision 2010/413 provides for the freezing of funds of, inter alia, entities ‘that are engaged in, directly associated with or providing support for Iran’s proliferation-sensitive nuclear activities or for the development of nuclear weapon delivery systems, including through the involvement in procurement of the prohibited items, goods, equipment, materials and technology … or … entities that have assisted designated persons or entities in evading or violating the provisions of UNSCR 1737 (2006), 1747 (2007), 1803 (2008) and 1929 (2010) or of [Decision 2010/413]’.
5 On 25 October 2010 the Council gave effect to Decision 2010/413 by adopting Regulation (EU) No 961/2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1).
6 On 23 March 2012, in order to incorporate additional restrictive measures, the Council adopted Regulation (EU) No 267/2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1).
7 Article 23(2) of Regulation No 267/2012 reads as follows:
‘All funds and economic resources belonging to, owned, held or controlled by the persons, entities and bodies listed in Annex IX shall be frozen. Annex IX shall include the natural and legal persons, entities and bodies who, in accordance with Article 20(1)(b) and (c) of Council Decision 2010/413/CFSP, have been identified as:
(a) being engaged in, directly associated with, or providing support for Iran’s proliferation-sensitive nuclear activities or the development of nuclear weapon delivery systems by Iran, including through involvement in the procurement of prohibited goods and technology, or being owned or controlled by such a person, entity or body, including through illicit means, or acting on their behalf or at their direction;
(b) being a natural or legal person, entity or body that has assisted a listed person, entity or body to evade or violate the provisions of this Regulation, Council Decision 2010/413/CFSP or UNSCR 1737 (2006), UNSCR 1747 (2007), UNSCR 1803 (2008) and UNSCR 1929 (2010);
…’
8 On 21 December 2012 the Council adopted, first, Decision 2012/829/CFSP amending Decision 2010/413 (OJ 2012 L 356, p. 71) and, second, Regulation (EU) No 1264/2012 implementing Regulation No 267/2012 (OJ 2012 L 356, p. 55).
9 By those two acts, the applicant’s name was added in Annex II to Decision 2010/413 and in Annex IX to Regulation No 267/2012 respectively.
10 Both in Decision 2012/829 and in Regulation No 1264/2012 (‘the contested acts’), the Council justifies the freezing of the applicant’s funds and economic resources by means of the following reasons:
‘Sharif University of Technology (SUT) is assisting designated entities to violate the provisions of UN and EU sanctions on Iran and is providing support to Iran’s proliferation sensitive nuclear activities. As of late 2011 SUT had provided laboratories for use by UN-designated Iranian nuclear entity Kalaye Electric Company (KEC) and EU-designated Iran Centrifuge Technology Company (TESA).’
11 The Council published a notice, for the attention of the persons and entities to which the restrictive measures adopted in the contested acts applied, in the Official Journal of the European Union of 22 December 2012 (OJ 2012 C 398, p. 8).
12 By letter of 3 January 2013 the Council informed the applicant of the adoption of the restrictive measures against it and sent to it a copy of the contested acts.
13 By letter of 17 February 2013 the applicant challenged the restrictive measures imposed on it and requested that it be sent copies of all the documents which justified its listing. In that letter, the applicant also asked that the Council reconsider the contested acts.
14 By letter of 10 June 2013 the Council replied to the applicant’s letter of 17 February 2013. The Council stated that the applicant could have access to the following documents, annexed to that letter:
– extract from a proposal by a Member State for the applicant’s designation (document 9869/13 EXT 4, paragraph 3);
– extract from reports of the meetings of the COMEM (Middle East/Gulf) Working Party (documents 10245/13 and 10246/13 EXT 1);
– meeting document MD 229/12 ADD 1 REV 1 RELEX;
– notes of 18 December 2012 from the Council Secretariat General to the Committee of Permanent Representatives (Coreper) and to Coreper and the Council (documents 17795/12 and 17523/12 ADD 1 REV 1).
15 The Council also stated in its letter of 10 June 2013 that the deleted parts in the report of the COMEM meetings were confidential elements of the discussion within the Council which could not be disclosed.
Procedure and forms of order sought by the parties
16 By application lodged at the Court Registry on 29 March 2013, the applicant brought the present action. The defence, reply and rejoinder were respectively lodged on 24 June, 21 August and 7 October 2013.
17 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the present case was accordingly allocated.
18 In its application, the applicant claims that the Court should:
– annul the Annex to Decision 2012/829, Annex II to Decision 2010/413, the Annex to Implementing Regulation No 1264/2012 and Annex IX to Council Regulation No 267/2012, in so far as they concern the applicant;
– order the Council to pay the costs.
19 The Council contends that the Court should:
– dismiss the action as being inadmissible or, in the alternative, as being unfounded;
– order the applicant to pay the costs.
Admissibility of the action
20 Without formally submitting an objection of inadmissibility by separate document on the basis of Article 114 of the Rules of Procedure of the General Court, the Council challenges the admissibility of this action in that the applicant brought the action out of time.
21 As regards the starting point of the period for bringing proceedings, the Council states that the period of two months laid down in the sixth paragraph of Article 263 TFEU runs from the date of notification of the restrictive measures to the person concerned and that the publication in the Official Journal of a notice for the attention of persons and entities subject to those measures is the equivalent of notification. Given that such a notice made it possible to identify the legal remedies and the date of expiry of the period for bringing proceedings, the persons concerned could not defer the starting point of the period for bringing proceedings by relying on the fact that there was no direct communication or that they actually became aware of the contested measures at a later date.
22 In this case, the Council states that a notice concerning the listing of the applicant was published in the Official Journal on 22 December 2012.
23 The Council maintains that Article 102(1) of the Rules of Procedure, according to which the period for bringing proceedings runs from the end of the 14th day following the publication of the act, does not apply to acts which are of individual scope, such as the contested acts.
24 Consequently, in this case, according to the Council, the period of two months for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU, increased on account of distance by a single period of 10 days provided for in Article 12(2) of the Rules of Procedure, began running on 22 December 2012 and expired on 4 March 2013.
25 The Council also submits that, in any event, where there are two notifications, one by means of a publication in the Official Journal and the other by means of individual communication, the period for bringing proceedings runs from the notification which is the earlier in date. In this case, that is the notification by means of publication in the Official Journal.
26 In the application, in the reply and at the hearing the applicant argues that the action was brought within the time prescribed.
27 First, as regards the starting point of the period for bringing proceedings, it must be borne in mind that, under the sixth paragraph of Article 263 TFEU, an action for annulment must be brought within two months of the publication of the contested measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.
28 Furthermore, according to the case-law, the principle of effective judicial protection means that the European Union authority which adopts restrictive measures against a person or entity, as in the present case, is bound to communicate the grounds on which those measures are based, either when those measures are adopted or, at the very least, as swiftly as possible after they have been adopted, in order to enable those persons or entities to exercise their right to bring an action (see, to that effect, Case C‑548/09 P Bank Melli Iran v Council [2011] ECR I‑11381, paragraph 47 and case-law cited).
29 In the present case, that principle is given effect by Article 24(3) of Decision 2010/413 and Article 46(3) of Regulation No 267/2012, which provide that the Council is to communicate its decision, including the grounds for the inclusion of their name in the list of persons and entities covered by the restrictive measures, to the person or entity concerned, either directly, if the address is known, or through the publication of a notice, providing such person or entity with an opportunity to present observations.
30 It follows that the period for bringing an action for annulment of an act imposing restrictive measures on a person or entity only begins to run either from the date of the individual communication of that act to the party concerned, if his address is known, or from the date of publication of a notice in the Official Journal of the European Union, where it was impossible directly to communicate that act to the party concerned (see, to that effect, Joined Cases C‑478/11 P to C‑482/11 P Gbagbo and Others v Council [2013] ECR, paragraphs 59 to 62).
31 In that regard, it must be observed that the Council is not free to choose arbitrarily the means of communication of its decisions to the persons concerned. It is clear from paragraph 61 of Gbagbo and Others v Council that the Court of Justice intended that indirect communication of contested acts by means of the publication of a notice in the Official Journal of the European Union should be permissible solely in cases where it was impossible for the Council to undertake individual communication. Any other conclusion would allow the Council a convenient means of evading its obligation to effect individual communication.
32 In this case, it is apparent from the contested acts that the applicant’s address was known to the Council when the contested acts were adopted. The Council therefore had no other choice than to inform the applicant directly, by means of an individual communication, of the measures imposed on it.
33 The applicant states that it received on 26 January 2013 the Council’s letter of 3 January 2013 informing it of the inclusion of its name, by means of the adoption of the contested acts, in the list of persons who were subject to the measures for the freezing of assets laid down in Decision 2010/413 and Regulation No 267/2012. At the hearing, the Council intimated that it no longer contested the fact that the applicant had received its letter of 3 January 2013 on 26 January 2013.
34 In those circumstances, the period of two months for the bringing of proceedings began to run on 26 January 2013 and expired on 5 April 2013.
35 Since this action was brought on 29 March 2013, it is clear that it was brought prior to the expiry of the legal time-limit and must be declared to be admissible.
Substance
36 In support of its application for annulment, the applicant relies on three pleas in law. The first plea has three parts, with claims of infringement of, respectively, the obligation to state reasons, the rights of the defence and the right to effective judicial protection. The second plea is a claim of a manifest error of assessment. The third plea is divided into two parts: claims of infringement of, respectively, the right to property and the principle of proportionality.
37 The Court will begin by examining the first part of the first plea, claiming a breach of the obligation to state reasons, and then examine the second plea, claiming a manifest error of assessment.
The first part of the first plea in law: breach of the obligation to state reasons
38 The applicant claims that only the material which was communicated to it by the Council’s letter of 3 January 2013 may be taken into consideration in order to assess whether the Council fulfilled the obligations imposed on it by Article 296 TFEU.
39 The applicant submits that that was a standard letter, the annexes to which contain copies of Decision 2012/829 and Regulation No 1264/2012. In that letter, the applicant is mistakenly described as a ‘company’. Further, the reasons which that letter communicates to it are generic in that they do no more than summarise the legal criteria laid down in Decision 2010/413 and Regulation No 267/2012.
40 As regards the specific reasons provided in the annexes to the contested acts, quoted in paragraph 10 above, the applicant observes that the relationship between the two sentences which constitute those reasons is opaque. The applicant asserts that it does not understand whether the first sentence is supposed to offer an independent reason for listing or whether it is an introduction to the reasons set out in the second sentence. If the former, the first sentence is too brief, vague and imprecise to justify a listing. If the latter, the first sentence is purely introductory and without any independent value as justification.
41 As regards the second sentence of the reasons mentioned in paragraph 40 above, the applicant claims that that sentence does not explain how the provision of laboratories to the entities Kalaye Electric Company (‘KEC’) and Iran Centrifuge Technology Company (‘TESA’) is supposed to have contributed to nuclear proliferation activities, having regard in particular to the fact that it was a university maintaining academic contacts with a large number of private and public bodies. Given that the statement of reasons is equivocal in content and in structure it was impossible for the applicant to understand the legal classification of its conduct in the light of the criteria laid down in Article 20 of Decision 2010/413 and Article 23 of Regulation No 267/2012.
42 The Council contends that the second sentence of the reasons stated explains the first sentence and that, because of the large number of criteria for listing laid down in Article 20 of Decision 2010/413 and Article 23 of Regulation No 1264/2012, it was necessary to specify the particular reason for the applicant’s listing. The applicant was therefore listed in the annexes to the contested acts because of the assistance which it provided to KEC and TESA by making available laboratories to them. Taking account of the involvement of those two entities in the Iranian nuclear programme, which justified their being subject to United Nations and European Union sanctions, the laboratories were obviously not used, according to the Council, for innocent purposes, but were used in connection with nuclear activities.
43 According to settled case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, secondly, to enable those Courts to review the legality of that act (see Case C‑417/11 P Council v Bamba [2012] ECR, paragraph 49 and case-law cited).
44 Further, as regards restrictive measures adopted under the Common Foreign and Security Policy (CFSP), it must be recalled that, since the person concerned is not afforded the opportunity to be heard before the adoption of an initial listing decision, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling the person concerned, at least after the adoption of that decision, to make effective use of the legal remedies available to him in order to challenge the lawfulness of that decision (Council v Bamba, paragraph 51, and Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II‑4665 (‘OMPI I’), paragraph 140).
45 Consequently, the statement of reasons for a Council act imposing a restrictive measure must identify not only the legal basis for that measure, but also the actual and specific reasons why the Council considers, in the exercise of its discretion, that such a measure must be adopted in respect of the person concerned (see, to that effect, Council v Bamba, paragraph 52; OMPI I, paragraph 146; and Case T‑390/08 Bank Melli Iran v Council [2009] ECR II‑3967, paragraph 83).
46 However, the statement of reasons must be appropriate to the nature of the measure at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the statement of reasons to specify all the relevant matters of fact and law, since the question whether the statement of reasons is adequate must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In particular, the reasons given for a measure adversely affecting a person are sufficient if it was adopted in circumstances known to that person which enable him to understand the scope of the measure concerning him (Council v Bamba, paragraphs 53 and 54; OMPI I, paragraph 141; and Bank Melli Iran v Council, paragraph 82).
47 In this case, the Court must examine, in the light of that case-law, the statement of reasons for the restrictive measures at issue, in relation to their legal basis and the actual and specific reasons for their adoption.
48 The Council justifies the imposition of restrictive measures on the applicant by means of the following three reasons:
– the applicant assists designated entities to violate European Union sanctions against the Islamic Republic of Iran (first part of the first sentence);
– the applicant directly supports Iranian nuclear activities (second part of the first sentence);
– since late 2011 the applicant has made laboratories available to the nuclear entities KEC and TESA (second sentence).
49 It is apparent from the wording used in the first two reasons that those reasons refer to the legal bases on which the Council justified the applicant’s listing in the annexes to the contested acts. The wording ‘assists designated entities’ in the first part of the first sentence refers to the corresponding wording used in Article 20(1)(b) of Decision 2010/413 and Article 23(2)(b) of Regulation No 267/2012, while the use of the verb ‘support’ and the adverb ‘directly’ in the second part of the first sentence refers to the comparable wording used in Article 20(1)(b) of Decision 2010/413 and Article 23(2)(a) of Regulation No 267/2012.
50 The first two reasons produced in the first sentence of the reasons for listing quoted in paragraph 10 above thereby embody an ambiguity in respect of the use of a twofold legal base. However, in so far as those first two reasons do not contain any reasons specific to this case, they must be examined in the light of the third reason stated in paragraph 48 above and the reasons for the listing of the entities referred to in the second sentence, namely KEC and TESA. It is apparent from that overall reading, with reference to the context, first, that the Council’s intention was that the applicant should be listed because of the direct assistance which it provided to those two bodies, which are directly and closely involved in the Iranian nuclear programme and, secondly, that that assistance or support consists in making available laboratories since late 2011. Having regard to the nuclear activities of KEC and TESA as described in the reasons for their own listing, the applicant ought reasonably to have appreciated that the laboratories in question would enable those entities to carry out research relevant to their nuclear activities.
51 In those circumstances, the contested acts satisfy the requirement that actual and specific reasons should be stated. The first part of the first plea, claiming a breach of the obligation to state reasons, must therefore be rejected.
The second plea: error of assessment
52 By its second plea in law, the applicant claims that the Council has produced no evidence from which it can be established that the applicant assisted designated entities to violate measures adopted by the United Nations and European Union sanctions against the Islamic Republic of Iran or that it supported proliferation-sensitive nuclear activities of the Islamic Republic of Iran.
53 The applicant considers that the Council has done no more than offer general and unsubstantiated assertions which it categorically denies. The applicant adds that the burden of proof rests on the Council.
54 The Council contends that it did not commit any error of assessment by designating the applicant by means of the contested measures. The Council observes that the applicant did in fact make available laboratories to KEC and TESA in connection with their nuclear activities. The Council adds that overriding considerations of confidentiality and security to do with the security of the European Union and its Member States and the conduct of their international relations render it unable to disclose the evidence of those facts.
55 According to the Council, such considerations can justify the non-disclosure of evidence or information.
56 At the hearing, the Council also contended that the fact that the Statutes of the applicant, which date from 1977, provide for the appointment by the Shah of 15 members of the applicant’s Board of Trustees and that the Ministers for Culture and the Arts, for Sciences and Technology, and for the Economy are respectively mentioned as three of its members, permits the conclusion that the activities of the University are closely controlled by the Iranian State. Consequently, there is a strong probability, according to the Council, that the reasons relied on to justify the application of restrictive measures on the applicant are well founded.
57 It must be borne in mind that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to list or to maintain the listing of a given person, the Courts of the European Union are to ensure that that decision is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P Commission v Kadi (‘Kadi II’) [2013] ECR, paragraph 119).
58 It is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded. It is necessary that the information or evidence produced should support the reasons relied on against the person concerned. If that material is insufficient to allow a finding that a reason is well founded, the Courts of the European Union shall disregard that reason as a possible basis for the contested decision to list or maintain a listing (Kadi II, paragraphs 121 to 123).
59 First, it is necessary to determine the material which may validly be relied on by the Council before the Court, having regard, first, to the content of the Council’s file and, second, to the requirements linked to the rights of the defence.
60 In that regard, it must be borne in mind that the legality of the contested measures may be assessed only on the basis of the elements of fact and of law on which they were adopted and not on the basis of information which was brought to the Council’s knowledge after the adoption of those measures, even if the Council takes the view that that information could legitimately complement the grounds stated in those measures and also provide a basis for their adoption. The Court cannot accede to what is, in short, an invitation by the Council to replace the grounds on which those measures are based (Case T‑63/12 Oil Turbo Compressor v Council [2012] ECR, paragraph 29).
61 Further, the Council cannot validly rely, before the Court, on evidence which was not disclosed to an applicant, when requested by him, without infringing the rights of defence of the person concerned (Joined Cases T‑42/12 and T‑181/12 Bateni v Council [2013] ECR, paragraph 57). The right of the person concerned to be notified of the incriminating evidence implies not only his right to initial disclosure of information which is sufficiently detailed to enable him to understand why he has been listed, but also the right of access to the file. It is only on the request of the party concerned that the Council is required to provide access to all non-confidential official documents concerning the measure at issue (Case C‑548/09 P Bank Melli Iran v Council, paragraph 92, confirming the judgment in Case T‑390/08 Bank Melli Iran v Council, paragraph 97).
62 In this case, it must be observed that, although the applicant had requested of the Council, by letter of 27 February 2013, that the Council disclose to it the documents justifying the inclusion of its name in the lists at issue, the Council disclosed to it a certain number of documents only after the expiry of the period for bringing proceedings. Further, and in any event, it is clear that the documents thereby disclosed to the applicant, as annexes to the Council’s letter of 10 June 2013, contain no information or material which adds anything concerning the content of the contested acts. The extract from a proposal by a Member State for the listing of the applicant (document 9869/13 EXT1, paragraph 3), like the meeting document MD 229/12 ADD 1 REV RELEX and the notes from the Council Secretariat General to Coreper and to Coreper and the Council (documents 17795/12 and 17523/12 ADD 1 REV 1) do not mention anything other than what is produced in the reasons stated in the contested acts. The extract from the report of the COMEM meetings (documents 10245/13 and 10246/13), for its part, contains nothing which relates specifically to the applicant.
63 Moreover, it must be stated that some parts of the documents disclosed to the applicant were deleted for reasons of confidentiality.
64 In that regard, it must be recalled that overriding considerations to do with the security of the European Union or of its Member States or with the conduct of their international relations may preclude the disclosure of some information or some evidence to the person concerned (Kadi II, paragraph 125).
65 However, it is then for the Council to adduce evidence that the security of the European Union or of its Member States or the conduct of their international relations would in fact be jeopardised by disclosure to the person concerned of the full detailed grounds which constitute the basis for a decision on restrictive measures (see, by analogy, Case C‑300/11 ZZ [2013] ECR, paragraph 61).
66 Where the Council claims that some information is confidential, it is for the Courts of the European Union to determine whether the reasons relied on by the Council as grounds to preclude the disclosure of that information to the person or entity concerned are well founded (Kadi II, paragraph 126).
67 If it turns out that the reasons relied on by the Council do indeed preclude the disclosure to the person concerned of information or evidence produced before the Courts of the European Union, it is necessary to strike an appropriate balance between the requirements attached to the right to effective judicial protection, in particular respect for the principle of an adversarial process, and those flowing from the security of the European Union or its Member States or the conduct of their international relations (Kadi II, paragraph 128).
68 In this case, the Council stated, in its reply of 17 December 2013 to the written questions from the Court of 25 November 2013, that the redacted passages in the documents annexed to its letter of 10 June 2013 did not concern the applicant. The Council also replied that, during discussions on the applicant’s listing, it had also taken into consideration other information, contained in a separate confidential document, but that the Member State which had proposed the listing and provided the information opposed the disclosure of that information, either wholly or in part.
69 The Court must therefore hold that the Council finds itself unable to provide additional information beyond that already known to the applicant. Further, the Council has provided no explanation of its inability to disclose the information to be found in the separate document mentioned in paragraph 68 above, which it claims to be confidential. In those circumstances, the Court must base its decision solely on the material which has been disclosed to it, in other words, in this case, the indications contained in the summary of reasons and in the written pleadings of the parties (see, to that effect, Kadi II, paragraph 123).
70 Those reasons contain no evidence capable of supporting the Council’s claims. They prove neither that the applicant made available laboratories to KEC and TESA nor that those laboratories could be of any value to them for their nuclear activities.
71 As regards the Council’s argument, submitted for the first time at the hearing, relating to the structure of the applicant’s Board of Trustees, it must be recalled that, pursuant to Article 48(2) of the Rules of Procedure, no new pleas in law may be introduced in the course of proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. The Council does not specify to which plea in law or ground previously put forward that argument is related. Moreover, as stated in paragraph 57 above, judicial review is not restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons are substantiated.
72 It follows from all the foregoing that the material available to the Court contains no evidence capable of supporting the Council’s claims that the applicant assisted the entities KEC and TESA to violate the provisions of the EU legislation concerning restrictive measures against the Islamic Republic of Iran, or provided direct support to Iranian nuclear activities.
73 It follows that the Council has not discharged the burden of proof which rested on it under Article 47 of the Charter of Fundamental Rights, as interpreted by the Court of Justice in Kadi II (see paragraph 57 above).
74 The second plea in law must therefore be upheld.
75 Consequently, the contested acts must be annulled in so far as they concern the applicant, without there being any need to examine the other pleas relied on by the applicant.
The temporal effects of the annulment of the contested acts
76 Neither the applicant nor the Council presented any claims as regards the temporal effects of the annulment of the contested acts.
77 However, under the second paragraph of Article 264 TFEU the General Court may, if it considers this necessary, state which of the effects of an act which it has declared void are to be considered as definitive. It follows from the case-law that the General Court may, on the basis of that provision, decide the date when its annulling judgments are to take effect (see, to that effect, judgment of 12 December 2013 in Case T‑58/12 Nabipour and Others v Council, not published in the ECR, paragraphs 250 and 251).
78 In the circumstances of this case, the Court considers, for the reasons set out below, that it is necessary to suspend the effects of this judgment for a period of two months from the date of its delivery.
79 The nuclear programme pursued by the Islamic Republic of Iran is a source of serious concerns at both the international and European levels. That is the background to the Council’s gradual extension of the number of restrictive measures adopted against that State, in order to hinder the development of activities which jeopardise peace and international security, in the context of implementation of United Nations Security Council resolutions.
80 Consequently, the applicant’s interest in ensuring that this annulling judgment should take effect immediately must be weighed against the objective of general interest pursued by the European Union’s policy in relation to restrictive measures against the Islamic Republic of Iran. The adjustment of the temporal effects of the annulment of a restrictive measure may thus be justified by the need to ensure that the restrictive measures are effective and, in short, by overriding considerations to do with security or the conduct of the international relations of the European Union and of its Member States (see, by analogy with there being no obligation to inform the person or entity concerned beforehand of the grounds for an initial listing, Case C‑27/09 P France v People’s Mojahedin Organization of Iran [2011] ECR I‑13427, paragraph 67).
81 In this case, the annulment with immediate effect of the contested acts would enable the applicant immediately to collect funds which are subject to the restrictive measures imposed by those acts.
82 As regards the application of Article 266 TFEU in this case, it must be observed that the annulment by this judgment of the applicant’s listing stems from the fact that the reasons stated for that listing are not supported by sufficient evidence (see paragraph 73 above). Although it is for the Council to decide on what measures to adopt to comply with this judgment, a further listing of the applicant cannot automatically be ruled out. In the course of further review, the Council has the possibility of again listing the applicant on the basis of reasons which are supported to the requisite legal standard.
83 In order to give the Council the opportunity to apply Article 266 TFEU with a view to correcting the irregularities identified in this judgment, inter alia by providing sufficient evidence to support the reasons for the applicant’s listing, the Court considers that it is necessary to maintain the temporal effects of the contested acts for a period of two months from the date of delivery of this judgment.
Costs
84 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party’s pleadings. Since the Council has essentially been unsuccessful, it must be ordered to pay the costs of the present proceedings, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Annuls Council Decision 2012/829/CFSP of 21 December 2012, amending Decision 2010/413/CFSP concerning restrictive measures against Iran, in so far as it listed Sharif University of Technology in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP;
2. Annuls Council Implementing Regulation (EU) No 1264/2012 of 21 December 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran, in so far as it listed Sharif University of Technology in Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010;
3. Orders the effects of Decision 2012/829 and Implementing Regulation No 1264/2012 to be maintained, as regards Sharif University of Technology, for a period of two months from the date of delivery of this judgment;
4. Orders the Council of the European Union to bear its own costs and to pay the costs of Sharif University of Technology.
Van der Woude | Wiszniewska-Białecka | Ulloa Rubio |
Delivered in open court in Luxembourg on 3 July 2014.
[Signatures]