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 — Period allowed for adaptation of forms of order — Admissibility — Obligation to state reasons — Error of assessment — Adjustment of temporal effects of annulment)
In Case T‑157/13,
Sorinet Commercial Trust Bankers Ltd, established in Kish Island (Iran), represented by L. Defalque and C. Malherbe, lawyers,
applicant,
v
Council of the European Union, represented by A. De Elera, M. Bishop and A. Vitro, 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 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) and (ii) Council Decision 2013/270/CFSP of 6 June 2013 amending Decision 2010/413 (OJ 2013 L 156, p. 10), in so far as it maintained the applicant’s listing in Annex II to Decision 2010/413, and Council Implementing Regulation (EU) No 522/2013 of 6 June 2013 implementing Regulation No 267/2012 (OJ 2013 L 156, p. 3), in so far as it maintained the applicant’s listing in Annex IX to Regulation No 267/2012,
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, Sorinet Commercial Trust Bankers Ltd, is a company established in Iran. Mr Babak Zanjani, an Iranian citizen, is a director of the company.
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 lists the persons, entities and bodies — other than those designated by the Security Council or by the Sanctions Committee created by Resolution 1737 (2006), mentioned in Annex I — 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 the 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 the 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, the Council stated the following reasons for the freezing of the applicant’s funds and economic resources:
‘Sorinet Commercial Trust (SCT) is assisting designated entities to violate the provisions of the EU regulation on Iran and is providing financial support to the government of Iran. SCT is part of the Sorinet Group owned and operated by Babak Zanjani. It is being used to channel Iranian 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 11 March 2013 the applicant disputed that the restrictive measures were well founded and requested that it 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 its listing. In that letter the applicant also requested the right to be heard.
15 By letter dated 13 March 2013 the Council acknowledged receipt of the abovementioned letter dated 11 March 2013 and stated that that letter was then under examination.
16 On 6 June 2013 the Council adopted Decision 2013/270/CFSP amending Decision 2010/413 (OJ 2013 L 156, p. 10) and Implementing Regulation (EU) No 522/2013 implementing Regulation No 267/2012 (OJ 2013 L 156, p. 3). Decision 2013/270 and Implementing Regulation No 522/2013 respectively amended Annex II to Decision 2010/413 and Annex IX Regulation No 267/2012. As regards the applicant, only some details in relation to its name and identifying information were amended.
17 By letter of 10 June 2013 the Council informed the applicant that its inclusion in the list of persons and entities subject to restrictive measures, set out in Annex II to Decision 2010/413, as amended by Decision 2013/270, and in Annex IX to Regulation No 267/2012, as implemented by Implementing Regulation No 522/2013, was to be maintained.
18 By letter of 10 June 2013 the Council replied to the applicant’s letter of 11 March 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.
20 By letter of 5 July 2013 the applicant replied to the Council’s letter of 10 June 2013 informing it that its listing was maintained by Decision 2013/270 and Implementing Regulation No 522/2013, in order to challenge again the accusations made against it. In that letter the applicant requested that it be sent copies of all documents on which Decision 2013/270 and Implementing Regulation No 522/2013 were based, and the right to be heard. The applicant also asked the Council to reconsider the decision to include it in the abovementioned lists.
Procedure and forms of order sought by the parties
21 By application lodged at the Court Registry on 15 March 2013, the applicant brought the present action.
22 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.
23 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.
24 The applicant claims that the Court should:
– annul Decision 2012/829, Implementing Regulation No 1264/2012, Decision 2013/270 and Implementing Regulation No 522/2013 (‘the contested acts’), in so far as they listed its name in Annex II to Decision 2010/413 and in Annex IX to Regulation No 267/2012;
– order the Council to pay the costs.
25 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.
26 Following the adoption of Decision 2013/270 and Implementing Regulation No 522/2013, the applicant sought, by document lodged at the Registry of the Court on 14 August 2013, to adapt its forms of order, by extending them to the annulment of the Annex to Decision 2013/270 and of the Annex to Implementing Regulation No 522/2013, in so far as those acts concern it.
Law
Admissibility of the action
27 The Council claims that the applicant brought its action out of time.
28 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.
29 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.
30 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.
31 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.
32 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.
33 The applicant contends in its reply that the action was brought within the period prescribed.
34 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.
35 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).
36 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.
37 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).
38 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 de facto allow the Council a convenient means of evading its obligation to effect individual communication.
39 In this case, it is apparent from the contested acts that, as the applicant does not dispute, its 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.
40 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 the provisions of Article 102(2) of those rules, that period must also be extended on account of distance by a single period of 10 days.
41 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.
42 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.
43 It is evident that Article 102(1) of the Rules of Procedure makes 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 for 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.
44 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 individual act by means of the publication of a notice in the Official Journal of the European Union.
45 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.
46 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).
47 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.
48 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.
49 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 to adapt the forms of order
50 As stated in paragraph 16 above, since the date when this action was brought, the list in Annex II to Decision 2010/413 has been amended by Decision 2013/270. In accordance with the latter decision, Annex IX to Regulation No 267/2012 has also been amended by Implementing Regulation No 522/2013. The applicant’s listing was maintained and only some identifying information was amended. The applicant sought to adapt its initial forms of order in order that its application for annulment should cover not only Decision 2012/829 and Implementing Regulation No 1264/2012 but also Decision 2013/270 and Implementing Regulation No 522/2013, in so far as those acts concern it. The Council has raised no objection to that adaptation.
51 In accordance with the case-law, when a decision or a regulation of direct and individual concern to an individual is replaced, during the proceedings, by another measure with the same subject-matter, this is to be considered a new factor allowing the applicant to adapt its claims and pleas in law. It would be contrary to the principle of due administration of justice and to the requirements of procedural economy to oblige the applicant to make a fresh application. Moreover, it would be inequitable if the institution in question were able, in order to counter criticisms of a measure, contained in an application to the Courts of the European Union, to amend the contested measure or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending his original pleadings to the later measure or of submitting supplementary pleadings directed against that measure (Case T‑256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II‑3019, paragraph 46, and Case T‑110/12 Iranian Offshore Engineering & Construction v Council [Extracts] [2013] ECR, paragraph 16).
52 However, in order to be admissible, a request to adapt the forms of order sought must be submitted within the time-limit for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU. According to settled case-law, that time-limit is mandatory and must be applied by the Courts of the European Union in such a way as to safeguard legal certainty and equality of persons before the law (see, to that effect, Case C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paragraph 101). It is accordingly for the Courts of the European Union to determine, of their own motion if necessary, whether that time-limit has been respected (Iranian Offshore Engineering & Construction v Council, paragraph 17).
53 As regards the calculation of the period for bringing proceedings, as stated in paragraph 37 above, 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, if the address is not known (Gbagbo and Others v Council, paragraphs 59 to 62). Similarly, the time-limit for the submission of an application seeking to extend the claims and pleas in law to an act which maintains those measures begins to run only from the date of the individual communication of that new act to the person or the entity concerned, if the address is known, or from the date of the publication of a notice in the Official Journal of the European Union, if individual communication is impossible (Iranian Offshore Engineering & Construction v Council, paragraph 21).
54 In this case, Decision 2010/413, as amended by Decision 2013/270, and Regulation No 267/2012, as implemented by Implementing Regulation No 522/2013, were communicated to the applicant by letter of 10 June 2013. In those circumstances, the two-month time-limit, provided for in the sixth paragraph of Article 263 TFEU, for bringing an action against the decision to maintain the applicant’s listing in Annex II to Decision 2010/413 and in Annex IX to Regulation No 267/2012 began running on 10 June 2013, and expired, in accordance with Article 102(2) of the Rules of Procedure, on 20 August 2013.
55 Accordingly, since the application to adapt the forms of order was submitted by document lodged at the Registry of the Court on 14 August 2013, the application is admissible.
Substance
56 The applicant puts forward four pleas in law in support of its action. 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 insufficient.
57 The Court will first examine the third plea.
The third plea: error of assessment
58 By its third plea, the applicant claims that the Council produced no evidence from which it can be established that it was assisting ‘designated entities to violate the provisions of the EU regulation on Iran’ or that it was 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. The applicant further states that the claims made in relation to other designated entities are without any detail and lack any credibility.
59 The applicant states that it carries on business in food, food packing and cosmetics, in accordance with the company’s objects clause.
60 The Council does not dispute those factual arguments of the applicant but contends that it did not commit any error of assessment in designating it by means of the contested acts.
61 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).
62 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 however 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).
63 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.
64 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).
65 Further, the Council cannot validly rely, before the Court, on evidence which was not disclosed to the 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).
66 In this case, it must be observed that the applicant requested the Council, by letter of 11 March 2013, in other words, only four days before the bringing of its action before the Court, to send copies to it of the documents justifying its listing. The Council replied to that request and provided the applicant with a number of documents by letter of 10 June 2013.
67 In that regard, although the Council sent its reply only three months later, it cannot be claimed that the Council replied out of time, in so far as it would have been difficult, or impossible, for the Council to reply prior to 15 March 2013, the date when the application was lodged before the General Court. However, in any event, it is clear that the documents sent to the applicant, as annexes to the Council’s letter of 10 June 2013, contain no information or material which adds anything to the content of the contested acts. The extract from a proposal by a Member State for the listing of the applicant (document 9869/13 EXT 1, paragraph 5), like the meeting document MD 229/12 ADD 1 REV 1 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 by the applicant, in its application, 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 which, like the applicant, the Council 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 EU 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 61 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 (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 of the European Union or, if an appeal has been brought within that period, until the dismissal of the appeal.
82 It must be recalled 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 its 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 Annex II to Decision No 2010/413, as amended by Decision No 2013/270, and of Annex IX to Regulation No 267/2012, as amended by Implementing Regulation No 522/2013, 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 Sorinet Commercial Trust Bankers Ltd 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 Sorinet Commercial Trust Bankers Ltd 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. Annuls Council Decision 2013/270/CFSP of 6 June 2013 amending Decision 2010/413, in so far as it maintained the listing of Sorinet Commercial Trust Bankers Ltd in Annex II to Decision 2010/413;
4. Annuls Council Implementing Regulation (EU) No 522/2013 of 6 June 2013 implementing Regulation No 267/2012, in so far as it maintained the listing of Sorinet Commercial Trust Bankers Ltd in Annex IX to Regulation No 267/2012;
5. Orders the effects of Annex II to Decision 2010/413, as amended by Decision 2013/270, and Annex IX to Regulation No 267/2012, as amended by Implementing Regulation No 522/2013, to be maintained as regards Sorinet Commercial Trust Bankers, 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;
6. Orders the Council of the European Union to bear its own costs and to pay the costs of Sorinet Commercial Trust Bankers.
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 to adapt the forms of order
Substance
The third plea: error of assessment
The temporal effects of the annulment of the contested acts
Costs