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 – Restrictions on admission – Action for annulment – Period allowed for commencing proceedings – Admissibility – Obligation to state reasons – Error of assessment – Adjustment of the temporal effects of annulment)
In Case T‑155/13,
Babak Zanjani, residing in Dubai (United Arab Emirates), represented by L. Defalque and C. Malherbe, lawyers,
applicant,
v
Council of the European Union, represented by A. Vitro and M. Bishop, acting as Agents,
defendant,
APPLICATION for, first, 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 that the applicant was listed 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 that the applicant was listed 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) and, secondly, a declaration of the inapplicability of Decision 2012/829 and Implementing Regulation No 1264/2012 in so far as Article 19(1)(b) and (c) of Decision 2010/413 is applied to him,
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 16 January 2014,
gives the following
Judgment
Background to the dispute
1 The applicant is an Iranian businessman.
2 The present 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.
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). Annex II to that decision contains the list of persons, entities and bodies – other than those designated by the Security Council of the United Nations or the Sanctions Committee created by Resolution 1737 (2006) – whose assets are to be frozen pursuant to Article 20(1)(b) of that decision and who, if natural persons, are to be subject to restrictions on admission pursuant to Article 19(1)(b) of that decision.
4 Article 19(1)(b) and Article 20(1)(b) of Decision 2010/413 respectively provide for the adoption of restrictions on admission, of natural persons, and of measures to freeze funds, of persons and entities, who have assisted designated persons and entities in evading the provisions of Resolutions 1737 (2006), 1747 (2007), 1803 (2008) and 1929 (2010) of the Security Council of the United Nations or of Decision 2010/413.
5 On 23 January 2012 the Council adopted Decision 2012/35/CFSP amending Decision 2010/413 (OJ 2012 L 19, p. 22). Pursuant to Decision 2012/35, Article 19(1)(c) and Article 20(1)(c) of Decision 2010/413 respectively provide for the adoption of restrictions on admission, of natural persons, and of measures to freeze funds, of persons and entities, who provide support to the Government of Iran.
6 Consequently, on 23 March 2012 the Council adopted Regulation (EU) No 267/2012 on restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1).
7 On 15 October 2012 the Council adopted Decision 2012/635/CFSP amending Decision 2010/413 (OJ 2012 L 282 p. 58). Article 1(8)(a) of Decision 2012/635 amended Article 20(1)(c) of Decision 2010/413, which consequently provides that restrictive measures are to be imposed on:
‘other persons and entities not covered by Annex I that provide support to the Government of Iran and entities owned or controlled by them or persons and entities associated with them, as listed in Annex II’.
8 On 21 December 2012 the Council adopted Decision 2012/829/CFSP amending Decision 2010/413 (OJ 2012 L 356, p. 71). Article 20(1)(b) of Decision 2010/413, as amended by Decision 2012/829, thereby provides for the freezing of funds of ‘persons and entities who have assisted designated persons or entities in evading or violating the provisions of UNSCR 1737 (2006), 1747 (2007), 1829 (2008) and 1929 (2010) or of [Decision 2010/413]’.
9 On 21 December 2012 the Council also adopted Regulation (EU) No 1263/2012 amending Regulation No 267/2012 (OJ 2010 L 356, p. 34). Article 23(2) of Regulation No 267/2012, as amended by Regulation No 1263/2012, 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:
…
(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);
…
(d) being other persons, entities or bodies that provide support, such as material, logistical or financial support, to the Government of Iran and entities owned or controlled by them, or persons and entities associated with them.
…’
10 By Decision 2012/829 the applicant was listed for the first time as one of the persons and entities subject to restrictive measures listed in Annex II to Decision 2010/413.
11 In accordance with Decision 2012/829, Council Implementing Regulation (EU) No 1264/2012 of 21 December 2012 implementing Regulation No 267/2012 (OJ 2012 L 356, p. 55) amended Annex IX to Regulation No 267/2012, by, inter alia, inserting therein the name of the applicant.
12 In Decision 2012/829 and Implementing Regulation No 1264/2012 (together, ‘the contested acts’) the Council stated the following reasons for the freezing of the applicant’s funds and economic resources:
‘Babak Zanjani is assisting designated entities to violate the provisions of the EU regulation on Iran and is providing financial support to the government of Iran. Zanjani is a key facilitator for Iranian oil deals and transferring oil-related money. Zanjani owns and operates the UAE‑based Sorinet Group, and some of its companies are used by Zanjani to channel oil-related payments.’
13 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).
14 By letter of 22 January 2013 the applicant challenged the restrictive measures imposed on him.
15 By letter of 27 February 2013 the applicant requested, inter alia, that he be sent copies of all the documents relied on by the Council, either in the Council’s possession or under its control, as justification for his being listed. In that letter the applicant also requested the right to be heard.
16 By letter dated 28 February 2013 the Council acknowledged receipt of the abovementioned letter dated 27 February 2013 and stated that that letter was then under examination.
17 By letter of 7 March 2013 the applicant reminded the Council of his letter of 27 February 2013.
18 By letter of 10 June 2013 the Council replied to the applicant’s letter of 27 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 1, paragraph 5);
– extract from the report of the meetings of the COMEM (Middle East/Gulf) Working Party of 29 November and 3 December 2012 (document 10246/13);
– 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).
19 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
20 The applicant brought this action by application lodged at the Registry of the General Court on 15 March 2013. The defence and reply were lodged within the period prescribed. By document added to the file on 22 July 2013, the Council produced its letter to the applicant dated 10 June 2013. The Council did not submit a rejoinder within the period prescribed.
21 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.
22 As a measure of organisation of procedure, the Council was requested by the Court to answer questions in writing. The Council complied with that request within the prescribed period.
23 The applicant claims that the Court should:
– annul the contested acts in so far as they listed his name in Annex II to Decision 2010/413 and in Annex IX to Regulation No 267/2012;
– declare inapplicable Decision 2012/829 and Implementing Regulation No 1264/2012 in so far as Article 19(1)(b) and (c) of Decision 2010/413 is applied to him, and declare that he is not concerned by the restrictive measures provided for therein;
– order the Council to pay the costs.
24 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.
Law
Admissibility of the action
25 The Council claims that the applicant brought his action out of time.
26 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 or, if such notification is not possible, from the date of publication of a notice in the Official Journal of the European Union.
27 In this case, the Council states that a notice concerning the listing of the applicant was published in the Official Journal of the European Union of 22 December 2012.
28 The Council submits that Article 102(1) of the Rules of Procedure of the General Court, which states that the period for bringing proceedings is to be calculated from the end of the 14th day after publication of the measure, does not apply to measures which are of individual application, like the contested acts.
29 The Council claims that the period for bringing proceedings against individual acts runs not from the date of their publication but from the date of their communication to the person concerned. Consequently, Article 102(1) of the Rules of Procedure does not apply as regards the restrictive measures, even if those measures were indirectly communicated to the applicant by means of the publication of a notice in the Official Journal of the European Union.
30 Accordingly, in this case, the period of two months for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU, extended on account of distance by a single period of 10 days as provided in Article 102(2) of the Rules of Procedure, expired, according to the Council, on 4 March 2013. The Council therefore claims that this action, brought on 15 March 2013, is inadmissible.
31 The applicant contends in his reply that the action was brought within the period prescribed.
32 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.
33 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).
34 In the present case, that principle is given specific 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.
35 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).
36 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 is 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.
37 In this case, it is apparent from the contested acts that, as the applicant does not dispute, his address was not known to the Council when those acts were adopted. The Council had therefore no other choice than to communicate the applicant’s listing by means of the publication of a notice in the Official Journal of the European Union.
38 Secondly, as regards the calculation of the period for bringing proceedings, it must be recalled that, under Article 102(1) of the Rules of Procedure, where the period allowed for commencing proceedings against a measure adopted by an institution runs from the publication of that measure, that period runs from the end of the 14th day after publication of the measure in the Official Journal of the European Union. In accordance with Article 102(2) of those rules, that period must also be extended on account of distance by a single period of 10 days.
39 In that context, the Council’s argument that Article 102(1) of the Rules of Procedure is not applicable to acts of individual scope, even where such acts are communicated to the applicant by means of the publication of a notice in the Official Journal of the European Union and not by notification, must be rejected for three reasons.
40 First, it is clear from the wording of Article 102(1) of the Rules of Procedure that the extension of the period of 14 days is applicable to measures in respect of which the period allowed for commencing proceedings begins to run from the date of their publication, which means that only measures which are notified are excluded from its scope.
41 It is evident that Article 102(1) of the Rules of Procedure draws no distinction according to the type of measure published in the Official Journal of the European Union. As stated by the applicant, it may therefore be concluded that, provided that a measure is published and that the date of publication of that measure constitutes the starting point of the period allowed for commencing proceedings laid down in the sixth paragraph of Article 263 TFEU, Article 102(1) of the Rules of Procedure is applicable.
42 Further, it follows from the purpose of Article 102(1) of the Rules of Procedure, which is intended to ensure that parties concerned have sufficient time to bring proceedings against the published measures and, thereby, to safeguard the right to effective judicial protection (Case C‑625/11 P Polyelectrolyte Producers Group and SNF v ECHA [2013] ECR, paragraphs 35 and 36), that Article 102(1) also applies where there is indirect communication of an act of individual scope by means of the publication of a notice in the Official Journal of the European Union.
43 The publication of a notice concerning the listing of persons and entities which are subject to restrictive measures in the Official Journal of the European Union cannot be treated as equivalent to notification of those measures to the persons and entities concerned. Where there is notification of an act, it may be presumed that it is available to the person to whom it is addressed on the date of notification. There can be no such presumption where measures of individual scope, such as restrictive measures, are communicated indirectly to the persons and entities concerned by means of the publication of a notice in the Official Journal of the European Union. Article 102(1) of the Rules of Procedure provides for a period of 14 days on the expiry of which it may reasonably be presumed that the Official Journal of the European Union is in fact available in all Member States and in non-Member States. Consequently, the extension of the period of 14 days laid down in Article 102(1) of the Rules of Procedure must apply to all measures communicated by means of publication in the Official Journal of the European Union, including measures of individual scope communicated to the persons concerned by means of the publication of a notice in the Official Journal of the European Union.
44 Last, the application of Article 102(2) of the Rules of Procedure serves the objective of safeguarding the right of the persons concerned to have communicated to them restrictive measures imposed on them, where appropriate by means of the publication of a notice in the Official Journal of the European Union, the purpose of that communication being precisely to ensure that persons to whom the measures are addressed are able to defend their rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in their applying to the Courts of the European Union (Gbagbo and Others v Council, paragraph 58).
45 Where the addresses of the persons or entities subject to restrictive measures are not known, or where it is impossible to undertake direct communication of the measures, if indirect communication of such measures, by means of the publication of a notice in the Official Journal of the European Union, were subject to the rules relating to the calculation of time-limits applicable to individual notification, that would deprive the persons concerned of the extension of the 14‑day period for commencing proceedings running from the date of publication of the measure, laid down in Article 102(1) of the Rules of Procedure, although they would not be in a position to benefit from the safeguards deriving from direct communication. In such circumstances, the obligation to undertake indirect communication of the restrictive measures, by means of the publication of a notice, the purpose of which is in principle to confer additional safeguards on the persons concerned, would have the paradoxical effect of placing them in a less favourable situation than that which would arise from the mere publication of the contested acts in the Official Journal of the European Union.
46 In this case, the Council published a notice concerning the applicant’s inclusion in the list of persons and entities subject to restrictive measures in the Official Journal of the European Union of 22 December 2012. The period of two months, increased by the period of 14 days laid down in Article 102(1) of the Rules of Procedure and by the single period of 10 days on account of distance laid down in Article 102(2) of those rules, therefore expired on 18 March 2013.
47 Since this action was brought on 15 March 2013, it was brought prior to the expiry of the legal time-limit, and accordingly the plea of inadmissibility raised by the Council must be rejected.
Admissibility of the application for a declaration of inapplicability
48 As a preliminary observation, it should be recalled that, under Article 113 of the Rules of Procedure, the General Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceedings as a matter of public policy, which, according to the case-law, might concern the jurisdiction of the Courts of the European Union to hear an action (Joined Cases 154/78, 205/78, 206/78, 226/78 to 228/78, 263/78, 264/78, 31/79, 39/79, 83/79 and 85/79 Ferriera Valsabbia and Others v Commission [1980] ECR 907, paragraph 7, and Case T‑174/95 Svenska Journalistförbundet v Council [1998] ECR II‑2289, paragraph 80) and questions concerning the admissibility of the action (Case 6/60 Humblet v État belge [1960] ECR 559, 570). Review by the General Court is thus not limited solely to pleas of inadmissibility raised by the parties (order in Case T‑387/00 Comitato organizzatore del convegno internazionale v Commission [2002] ECR II‑3031, paragraph 36). However, the Courts of the European Union cannot, in principle, base their decision on a plea in law or plea of inadmissibility, even as a matter of public policy, without having first invited the parties to submit their observations (see, to that effect, Case C‑89/08 P Commission v Ireland and Others [2009] ECR I‑11245, paragraphs 50 to 59, and Case C‑197/09 RX-II Review M v EMEA [2009] ECR I‑12033, paragraph 57).
49 In this case, the applicant seeks, by means of his third head of claim, a declaration that Decision 2012/829 and Implementing Regulation No 1264/2012 are inapplicable in so far as Article 19(1)(b) and (c) of Decision 2010/413, relating to restrictions on admission, is applied to him. That application is expressly based on Article 277 TFEU. The applicant claims that, since Article 19(1)(b) and (c) of Decision 2010/413 was not implemented by Regulation No 267/2012, that article was thus not enacted.
50 First, since the aim of that application, which refers specifically to restrictions on admission, is to obtain a declaration of the inapplicability of Implementing Regulation No 1264/2012, suffice it to state that the application is devoid of purpose. That regulation does not provide for and moreover could not provide for such measures, unlike Decision 2012/829, which does indeed impose on the applicant not only freezing of funds but restrictions on admission.
51 Secondly, in so far as that application relates to Decision 2012/829, it must be observed that the scope of that application has remained unclear, although the Court invited the applicant to provide clarification at the hearing.
52 In the first place, on the view that the applicant is pleading, by that application, an objection of illegality, based on Article 277 TFEU, it must be observed that Article 277 TFEU enables a party to challenge the applicability of an act of general application, on which the contested individual act is based, but does not confer jurisdiction on the Courts of the European Union to declare an individual act to be inapplicable. Yet in this case the applicant seeks a declaration of the inapplicability of individual restrictions on admission imposed on him.
53 Further, if the abovementioned application is capable of being interpreted as an application for a declaration, it must be recalled that, under Article 274 TFEU, the Courts of the European Union have only conferred jurisdiction. It is not the function of those Courts to issue directions to the institutions of the European Union or to substitute themselves for those institutions when exercising their powers of review (Joined Cases T‑133/95 and T‑204/95 IECC v Commission [1998] ECR II‑3645, paragraph 52). Likewise, the review of the legality of acts of the institutions covered by Article 263 TFEU, such as the contested restrictions on admission, does not confer on the Courts of the European Union jurisdiction to rule on a declaratory basis (see, to that effect, order in Case C‑500/07 P TEA v Commission [2008] ECR I‑161, paragraph 33).
54 Accordingly, that head of claim brought by the applicant must be rejected as being in part devoid of purpose and in part as being brought before a court which has no jurisdiction to hear it.
Substance
55 In support of its claim for annulment, the applicant puts forward four pleas in law. The first plea claims infringement of the obligation to state reasons. The second plea is a claim of infringement of the rights of the defence, the right to a fair hearing and the right to effective judicial protection. The third plea claims an error of assessment. The fourth plea is a claim that the assessment carried out by the Council was defective.
56 The Court will first examine the third plea in law.
The third plea: error of assessment
57 By its third plea, the applicant claims that the Council produced no evidence from which it can be established that he is assisting ‘designated entities to violate the provisions of the EU regulation on Iran’ or that he is providing support to the Government of Iran. Further, the applicant denies the existence of the Sorinet group which, according to the applicant, does not exist as either a company or as a holding company. Moreover, to his knowledge, none of the three companies in this alleged group are involved in the conduct of which they are accused.
58 The applicant adds that he has never been a shareholder in the First Islamic Investment Bank, and that he resigned from his duties as a director of that company with effect from 26 December 2012. That company’s Board of Directors consisted of four directors. Further, that company could not have been used to make prohibited payments linked to Iranian oil, since it was not yet operational when he was listed.
59 As regards International Safe Oil, the applicant claims that he sold, on 28 June 2012, the single share he held to Mr D., who became the sole shareholder of that company from 28 June to 29 November 2012. The applicant asserts that he has never been a director of that company.
60 The applicant admits that he is one of the directors and shareholders of Sorinet Commercial Trust Bankers. That company is however involved in the business of food, food packing and cosmetics, in accordance with the company’s objects clause.
61 The Council does not dispute those factual arguments of the applicant but contends that it did not commit any error of assessment in designating him by means of the contested acts.
62 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).
63 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).
64 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.
65 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).
66 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 [2009] ECR II‑3967, paragraph 97).
67 In this case, it must be observed that, although the applicant had requested of the Council, by letter of 27 February 2013, that it disclose to him the documents justifying his being listed, the Council disclosed to him 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 to that contained in the contested acts. The extract from a proposal by a Member State for the listing of the applicant (document 9869/13 EXT1, paragraph 5), like the meeting document MD 229/12 ADD 1 REV RELEX and the 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) 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 (document 10246/13), for its part, contains nothing which relates specifically to the applicant.
68 Moreover, it must be stated that some parts of the documents disclosed to the applicant were deleted for reasons of confidentiality.
69 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).
70 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).
71 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 (see, to that effect, Kadi II, paragraph 126).
72 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).
73 In this case, the Council stated, in its reply to the written questions from the Court, 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 took into consideration other information, contained in a separate confidential document, provided to it by the Member State which had proposed the listing. That Member State is however opposed to the disclosure of that information, either wholly or in part.
74 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 abovementioned separate document, 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).
75 However, in its written pleadings the Council produced no additional information or evidence to support the reasons stated in the contested acts to justify the adoption of restrictive measures against the applicant. In the form of a response to the observations made in his application by the applicant on the existence of an error of assessment, the Council has done no more than offer general statements on the nature of restrictive measures and their raisons d’être and on its powers to adopt such measures against a person or entity who, like the applicant, it claims assists ‘designated entities to violate the provisions of the EU regulation on Iran’ and provides ‘financial support to the Government of Iran’.
76 Consequently, the material available to the Court contains no evidence capable of supporting the Council’s claims that the applicant assisted certain entities to violate the provisions of the European Union legislation concerning restrictive measures against the Islamic Republic of Iran, or provided financial support to the Government of Iran.
77 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 62 above).
78 The third plea in law must therefore be upheld.
79 It follows that the contested acts must be annulled, in so far as they concern the applicant, without there being any need to examine the first, second and fourth pleas in law.
The temporal effects of the annulment of the contested acts
80 Under the second paragraph of Article 264 TFEU the General Court may, if it considers this necessary, state which of the effects of a regulation which it has declared void are to be considered as definitive. It follows from the case-law that the General Court may decide, on the basis of that provision, 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).
81 In this case, the Court considers, for the reasons set out below, that it is necessary to maintain the temporal effects of the contested acts until the date of expiry of the period for bringing an appeal stated in the first paragraph of Article 56 of the Statute of the Court of Justice or, if an appeal has been brought within that period, until the dismissal of the appeal.
82 It must be borne in mind that 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.
83 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).
84 The annulment with immediate effect of the contested acts in so far as they concern the applicant would enable the applicant to transfer all or part of his assets outside the European Union, without the Council being able if appropriate to apply in good time Article 266 TFEU with a view to correcting the irregularities identified in this judgment, and consequently the effectiveness of any freezing of assets in relation to the applicant which might, in the future, be decided on by the Council might be seriously and irreversibly prejudiced.
85 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 77 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 a 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.
86 It follows that the effects of the contested acts must be maintained as regards the applicant, until the date of expiry of the period for bringing an appeal or, if an appeal is brought within that period, until the dismissal of the appeal.
Costs
87 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 Mr Babak Zanjani 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 Mr Babak Zanjani 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 Mr Babak Zanjani until the date of expiry of the period for bringing an appeal stated in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union or, if an appeal has been brought within that period, until the dismissal of the appeal;
4. Dismisses the action as to the remainder;
5. Orders the Council of the European Union to bear its own costs and to pay the costs of Mr Babak Zanjani.
Van der Woude | Wiszniewska-Białecka | Ulloa Rubio |
Delivered in open court in Luxembourg on 3 July 2014.
[Signatures]
Table of contents
Background to the dispute
Procedure and forms of order sought by the parties
Law
Admissibility of the action
Admissibility of the application for a declaration of inapplicability
Substance
The third plea: error of assessment
The temporal effects of the annulment of the contested acts
Costs