Case T‑10/13
Bank of Industry and Mine
v
Council of the European Union
(Common foreign and security policy — Restrictive measures against Iran to prevent nuclear proliferation — Freezing of funds — Action for annulment — Time-limit for bringing an action — Admissibility — Plea of illegality — Error of law — Proportionality — Right to property — Powers of the Council — Obligation to state reasons — Rights of the defence — Reconsideration of restrictive measures adopted — Right to effective judicial protection — Error of assessment)
Summary — Judgment of the General Court (First Chamber), 29 April 2015
1. Common foreign and security policy — Restrictive measures against Iran — Decision to freeze funds — Judicial review of the legality — Scope — Article 20(1)(c) of Decision 2010/413, and Article 1(8) of Decision 2012/635 — Not included
(Art. 29 TEU; Arts 263, fourth para., TFEU and 275, second para., TFEU; Council Decisions 2010/413/CFSP, Art. 20(1)(c), and 2012/635/CFSP, Art. 1(8))
2. Actions for annulment — Admissibility criteria — Interest in bringing proceedings — Natural or legal persons — Measures of direct and individual concern to them — Action against an act imposing restrictive measures on the applicant — Public body invoking the protections and guarantees linked to fundamental rights — Question concerning not the admissibility of the plea but its merits
(Arts 263, fourth para., TFEU and 275, second para., TFEU; Council Decision 2012/635/CFSP; Council Regulation No 945/2012)
3. EU law — Fundamental rights — Scope ratione personae — Legal persons constituting emanations of non-member States — Included — Responsibility of the non-member State for compliance with fundamental rights in its own territory — Irrelevant
(Charter of Fundamental Rights of the European Union, Arts 17, 41 and 47)
4. European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures against Iran — Measures in the context of the fight against nuclear proliferation — Ambit of the review — Restricted review for general rules — Review extending to assessment of the facts and verification of the evidence for measures applying to specific entities
(Art. 29 TEU; Arts 215(2) TFEU and 275, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2010/413/CFSP, Art. 20(1)(c); Council Regulation No 267/2012, Art. 23(2)(d))
5. European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures against Iran — Measures in the context of the fight against nuclear proliferation — Ambit of the review — Restricted review for general rules — Criteria for adopting restrictive measures — Support for the Iranian Government — Scope — Compliance with the principle of legal certainty requiring that legal rules be clear, precise, and predictable in their effects
(Council Decisions 2010/413/CFSP, Art. 20(1)(c), and 2012/35/CFSP, thirteenth recital; Council Regulation No 267/2012, Art. 23(2)(d))
6. Common foreign and security policy — Restrictive measures against Iran — Freezing of funds of persons, entities or bodies engaged in or supporting nuclear proliferation — Restriction of the right to property and the free exercise of an economic activity — No breach of principle of proportionality
(Council Decisions 2010/413/CFSP, Art. 20(1)(c), 2012/35/CFSP, thirteenth recital, and 2012/635/CFSP, Art 1(8); Council Regulation No 267/2012, Art. 23(2)(d))
7. Common foreign and security policy — Decision adopted in the context of the EU Treaty — Procedural requirements laid down by Article 215(2) TFEU — Not applicable
(Art. 29 TEU; Art. 215(2) TFEU; Council Decision 2012/635/CFSP)
8. Common foreign and security policy — Restrictive measures against Iran — Freezing of funds of persons, entities or bodies engaged in or supporting nuclear proliferation — Power of the Council, in matters concerning restrictive measures based on Article 215 TFEU, to have recourse to the procedure laid down in Article 291(2) TFEU)
(Arts 215 TFEU and 291(2) TFEU; Council Regulation No 267/2012, Art. 23(2))
9. Common foreign and security policy — Restrictive measures against Iran — Measures in the context of the fight against nuclear proliferation — Procedure for listing persons and entities subject to the freezing of funds and economic resources — Choice of legal basis — Regulation No 267/2012 — Compliance with conditions laid down by Article 291 TFEU
(Arts 24(1), second para., TEU, 29 TEU and 31(1) TEU; Arts 215 TFEU and 291(2) TFEU; Council Decision 2010/413/CFSP, Annex II; Council Regulation No 267/2012, Arts 23(2), and 46(2))
10. Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures against Iran — Freezing of funds of persons, entities or bodies engaged in or supporting nuclear proliferation — Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him — Whether a summary statement of reasons is sufficient
(Art. 296, second para., TFEU; Council Decision 2012/635/CFSP; Council Regulation No 945/2012)
11. EU law — Principles — Rights of defence — Restrictive measures against Iran — Freezing of funds of persons, entities or bodies engaged in or supporting nuclear proliferation — Right of access to documents — Right subject to request for access being made to the Council
(Council Decision 2012/635/CFSP; Council Regulation No 945/2012)
12. EU law — Principles — Rights of defence — Right to effective judicial protection — Restrictive measures against Iran — Freezing of funds or persons, entities or bodies supporting the Iranian Government — Obligation to disclose incriminating evidence — Scope
(Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2012/635/CFSP; Council Regulation No 945/2012)
13. Common foreign and security policy — Restrictive measures against Iran — Freezing of funds of persons, entities or bodies engaged in or supporting nuclear proliferation — Obligation of the Council to re-examine those measures at regular intervals — Infringement — No impact on the validity of those measures — Conditions — Compliance with the aim of the obligation to re-examine and no adverse effects on the situation of the entity concerned
(Council Decision 2010/413/CFSP, Art. 26(3); Council Regulation No 267/2012, Art. 46(6))
1. See the text of the decision.
(see paras 27-30)
2. See the text of the decision.
(see paras 48, 49)
3. See the text of the decision.
(see paras 53, 55, 57, 58)
4. See the text of the decision.
(see paras 74, 75, 170-173)
5. The Council enjoys a broad discretion as regards the general and abstract definition of the legal criteria and procedures for adopting restrictive measures. By its very broad formulation, the criterion of support for the Iranian Government confers a discretion on the Council. However, that discretion is neither excessive nor arbitrary. First, the principle of legal certainty, which is one of the general principles of EU law and requires, particularly, that rules of law be clear, precise and predictable in their effects, in particular where they may have negative consequences on individuals and undertakings, applies as regards restrictive measures which have a considerable impact on the rights and freedoms of the persons and entities concerned. Second, the criterion of support for the Iranian Government forms part of a legal framework which is clearly delimited by the objectives pursued by the rules governing restrictive measures against Iran, particularly recital 13 in the preamble to Decision 2012/35, which inserted that criterion into Article 20(1) of Decision 2010/413, concerning restrictive measures against Iran. As is apparent from that recital 13, the said criterion is directed, in a targeted and selective way, at the activities specific to the person or entity concerned which, even if they do not, as such, have any direct or indirect link with nuclear proliferation, are nevertheless capable of encouraging it, by providing the Iranian Government with resources or facilities of a material, financial or logistical nature allowing it to pursue such proliferation.
The criterion at issue is not therefore aimed at any form of support to the Iranian Government, but covers forms of support which, by their quantitative or qualitative significance, contribute to the pursuit of Iran’s nuclear activities. It thus objectively defines a limited category of persons and entities that may be subject to fund-freezing measures. It may therefore be applied to any entity that provides support, particularly financial support, to the Iranian Government. By contrast, it does not cover all entities owned by the Iranian Government or linked to it, or Iranian taxpayers as a whole.
(see paras 75-80, 83, 84, 88)
6. Having regard to the primary importance of the preservation of peace and international security, the Council may take the view, without exceeding the bounds of its discretion, that the interference with the right to property resulting from the application of the criterion of support for the Iranian Government, laid down by recital 13 of Decision 2012/35, amending Decision 2010/413, and by Article 20(1) of Decision 2010/413, concerning restrictive measures against Iran, with a view to freezing the funds of certain persons and public entities providing such support, is appropriate and necessary in order to apply pressure on the Iranian Government to oblige it to end its nuclear proliferation activities. Consequently, that criterion is compatible with the principle of proportionality and does not confer an excessive power on the Council.
(see paras 78, 91, 92, 195-199)
7. Prior adoption of a decision in accordance with Chapter 2 of Title V of the EU Treaty is a prerequisite in order for the Council to be able to adopt restrictive measures under the powers conferred on it by Article 215(2) TFEU. However, that finding does not mean that the adoption of a decision in accordance with Chapter 2 of Title V of the EU Treaty is subject to the procedural requirements set out in Article 215(2) TFEU, rather than the requirements set out in Article 29 TEU itself. The latter entitles the Council to act alone when adopting the decisions envisaged therein.
(see paras 99, 101)
8. See the text of the decision.
(see paras 105-107)
9. The aim of regulations, such as Regulation No 267/2012, amending Decision 2010/413 concerning restrictive measures against Iran, which impose restrictive measures on the basis of Article 215 TFEU, is to implement — within the scope of the TFEU — decisions adopted under Article 29 TEU in the context of the Common Foreign and Security Policy (CFSP). In particular, on account of their purpose, nature and objectives, restrictive measures adopted under Article 23(2) of Regulation No 267/2012, which aim to put pressure on the Islamic Republic of Iran to end nuclear proliferation, are more closely related to the implementation of the CFSP than to the exercise of the powers conferred on the European Union by the TFEU.
In the context of the TEU, it is clear from a combined reading of the second subparagraph of Article 24(1) TEU, Article 29 TEU and Article 31(1) TEU that, as a general rule, the Council, acting unanimously, is called upon to take decisions in the sphere of the CFSP. In particular, it is the Council, acting alone, that decides on the inclusion of the name of a person or entity in Annex II to Decision 2010/413. It is precisely this inclusion that is implemented, within the scope of the TFEU, by the adoption of a fund-freezing measure under Article 23(2) of Regulation No 267/2012.
In those circumstances, having regard to the particularities of the measures adopted under Article 23(2) of Regulation No 267/2012 and the need to ensure consistency between the list set out in Annex II to Decision 2010/413 and that set out in Annex IX to Regulation No 267/2012, and in view of the fact that the Commission does not have access to the data held by the information services of the Member States which may prove necessary for the implementation of those measures, the Council may legitimately consider that the implementation of Article 23(2) of Regulation No 267/2012, relating to the freezing of funds, constitutes a specific case within the meaning of Article 291(2) TFEU, and it is therefore entitled to reserve the power to implement it to itself, in Article 46(2) of that regulation.
As regards the question whether the existence of a specific case has been duly substantiated, justification for reserving implementation to the Council, in Article 46(2) of Regulation No 267/2012, is clear from a combined reading of the recitals in the preamble to, and the provisions of, that regulation, in the context of the organisation of the relevant provisions of the TEU and TFEU on the freezing of funds.
Consequently, the requirements set out in Article 291(2) TFEU, in order for implementing powers to be granted to the Council, are satisfied as regards Article 46(2) of Regulation No 267/2012.
(see paras 109-114, 119)
10. See the text of the decision.
(see paras 122-127, 133-139)
11. See the text of the decision.
(see para. 144)
12. See the text of the decision.
(see paras 149, 151)
13. Under Article 26(3) of Decision 2010/413 and Article 46(6) of Regulation No 267/2012, the Council is required to review the restrictive measures concerning the applicant within 12 months from the adoption of Decision 2012/635 amending Decision 2010/413, and of Implementing Regulation No 945/2012, implementing Regulation No 267/2012.
However, infringement of the obligation to reconsider the restrictive measures adopted does not justify annulment of the measures which adopted them where the aim of the provisions requiring the periodic review of the restrictive measures was observed, although late, and the Council’s failure to comply with the time-limit for review does not, therefore, adversely affect the situation of the applicant. The aim is to ensure that the continued justification for the restrictive measures adopted is regularly reviewed.
(see paras 155-157, 160-162, 164, 165)