JUDGMENT OF THE GENERAL COURT (Second Chamber)
23 October 2015 (*)
(Action for annulment — Common foreign and security policy — Restrictive measures taken against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Time-limit for bringing proceedings — Out of time — Inadmissibility — Claim for damages — Inadmissibility)
In Case T‑552/13,
Oil Turbo Compressor Co. (Private Joint Stock), established in Tehran (Iran), represented by K. Kleinschmidt, lawyer,
applicant,
v
Council of the European Union, represented by M. Bishop and J.-P. Hix, acting as Agents,
defendant,
APPLICATION for (i) annulment of Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 319, p. 11) and of Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010 (OJ 2012 L 88, p. 1), in so far as those regulations affect the applicant and (ii) compensation for damage,
THE GENERAL COURT (Second Chamber),
composed of M.E. Martins Ribeiro, President, S. Gervasoni and L. Madise (Rapporteur), Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written procedure and further to the hearing on 11 March 2015,
gives the following
Judgment
Background to the dispute
1 This case falls within the ambit of the body of restrictive measures introduced in order to apply pressure on the Islamic Republic of Iran to end proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems.
2 The applicant, Oil Turbo Compressor Co. (Private Joint Stock), is a company established in Iran, which carries out production, research and service activities in the gas, petrochemical and energy sectors. In particular, it produces and markets turbines and turbocompressors used in the gas and petrochemical sectors.
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). Article 20(1) of Decision 2010/413 provides for the freezing of the funds and economic resources of the persons and entities mentioned on the list in Annexes I and II thereto.
4 On 25 October 2010, following the adoption of Decision 2010/413, the Council adopted Regulation (EU) No 961/2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1). Article 16(2)(a) of Regulation No 961/2010 provides that all funds and economic resources of the persons, entities and bodies listed in Annex VIII to that regulation are to be frozen.
5 On 1 December 2011, the Council adopted Decision 2011/783/CFSP amending Decision 2010/413 (OJ 2011 L 319, p. 71), whereby, inter alia, it added the applicant to the list of persons and entities set out in Annex II to Decision 2010/413.
6 On the same day, the Council adopted Implementing Regulation (EU) No 1245/2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11), whereby, inter alia, it added the applicant’s name to the list in Annex VIII to Regulation No 961/2010.
7 In Decision 2011/783 and in Implementing Regulation No 1245/2011, the Council gave the following reasons for the freezing of the applicant’s funds and economic resources:
‘Affiliated to EU-designated Sakhte Turbopomp va Kompressor (SATAK) (a.k.a. Turbo Compressor Manufacturer, TCMFG).’
8 On 2 December 2011, the Council published in the Official Journal of the European Union a notice for the attention of the persons and entities to which Articles 19(1)(b) and 20(1)(b) of Decision 2010/413 (Annex II) and Article 16(2) of Regulation No 961/2010 (Annex VIII) apply (OJ 2011 C 351, p. 15, ‘the notice of 2 December 2011’), in the versions resulting, respectively, from Decision 2011/783 and from Implementing Regulation No 1245/2011. In that notice, the Council, referring to the acts relevant to the grounds for each entry, stated that it had decided to add further persons and entities to the lists appearing in Annex II to Decision 2010/413 and Annex VIII of Regulation No 961/2010. In addition, the Council drew the attention of the persons and entities concerned to the possibility of challenging those acts before the General Court, in accordance with the conditions laid down in the second paragraph of Article 275 TFEU and the fourth and sixth paragraphs of Article 263 TFEU.
9 By letter of 5 December 2011 (‘the letter of 5 December 2011’), sent by registered post with acknowledgement of receipt on 6 December 2011, the Council informed the applicant that it had been added to the list of persons and entities in Annex II to Decision 2010/413, as amended by Decision 2011/783, and in Annex VIII to Regulation No 961/2010, as amended by Implementing Regulation No 1245/2011. That letter was returned to the Council with ‘not at this address’ stamped on it by the Iranian postal services.
10 On 13 February 2012, the applicant brought an action before the Court for the annulment of Decision 2011/783, to the extent that the decision concerned the applicant, on the ground, inter alia, that the Council had made a manifest error of appraisal of the facts on which the decision was based in relation to the applicant. That action was registered under case reference T‑63/12.
11 Regulation No 961/2010 was repealed by Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran (OJ 2012 L 88, p. 1), Article 23(2) of which provides for the freezing of funds and economic resources of the persons, entities and bodies listed in Annex IX to the regulation. The applicant’s name was included by the Council in that annex on the same grounds as those appearing in Decision 2011/783 and in Implementing Regulation No 1245/2011 (see paragraph 7 above).
12 By judgment of 26 October 2012 in Oil Turbo Compressor v Council (T–63/12, ECR, EU:T:2012:579), the Court granted the applicant’s action for annulment of Decision 2011/783, in so far as it concerned the applicant.
13 On 11 December 2012, the Council published in the Official Journal a notice for the attention of the persons and entities to which restrictive measures provided for in Decision 2010/413 and in Regulation No 267/2012 apply (OJ 2012 C 380, p. 7, ‘the notice of 11 December 2012’). That notice drew to the attention of persons and entities listed in Annex II to Decision 2010/413 and Annex IX to Regulation No 267/2012 the possibility of submitting a request to the Council, together with supporting documentation, that the decision to include them in the abovementioned annexes should be reconsidered.
14 By letter of 21 January 2013, the applicant, referring to the judgment in Oil Turbo Compressor v Council, cited in paragraph 12 above (EU:T:2012:579), and noting that its name had yet to be removed from both Annex II to Decision 2010/413 and Annex IX to Regulation No 267/2012, asked the Council to explain the reasons why that judgment had not been executed.
15 By letters of 6 February and 29 April 2013 the applicant, in essence, requested the Council to execute the judgment in Oil Turbo Compressor v Council, cited in paragraph 12 above (EU:T:2012:579).
16 By Council Implementing Regulation (EU) No 1203/2013 of 26 November 2013, implementing Regulation No 267/2012 (OJ 2013 L 316, p. 1), the applicant was removed from the list in Annex IX to Regulation No 267/2012.
Procedure and forms of order sought
17 By application lodged at the Court Registry on 15 October 2013, the applicant brought the present action.
18 By separate document, lodged at the Court Registry on the same day, the applicant applied, pursuant to Article 76a of the Rules of Procedure of the General Court of 2 May 1991, for the case to be decided under an expedited procedure.
19 By way of a measure of organisation of procedure as provided for in Article 64 of the Rules of Procedure of 2 May 1991, notified to the parties on 28 November 2013, the Court asked the parties whether, and on what date, the Council had informed the applicant, either directly or by means of publication in the Official Journal, of its decision to include the applicant’s name, first, on the list appearing in the single Annex to Implementing Regulation No 1245/2011 and, secondly, on the list appearing in Annex IX to Regulation No 267/2012. The parties complied with that request within the time allowed.
20 On 29 November 2013, the Council lodged at the Court Registry a defence containing, in the alternative, a request for a declaration of no need to adjudicate due to the removal of the applicant’s name from the list appearing in Annex IX to Regulation No 267/2012 by Implementing Regulation No 1203/2013 (see paragraph 16 above).
21 By decision of 12 December 2013, the General Court (Second Chamber) dismissed the application for the case to be decided under the expedited procedure.
22 On 25 March 2014, the applicant lodged at the Court Registry a reply containing an extension of the forms of order sought. The Court registered that document while reserving its position on the admissibility thereof.
23 Upon hearing the report of the Judge-Rapporteur, the General Court (Second Chamber) decided to open the oral procedure.
24 By way of a measure of organisation of procedure as provided for in Article 64 of the Rules of Procedure of 2 May 1991, notified to the parties on 30 January 2015, the Court asked the parties a question in writing, inviting them to respond to it at the hearing. That question related to the order of 20 February 2014 in Jannatian v Council (T‑187/13, EU:T:2014:134), and its relevance to the present case.
25 The hearing, which was initially scheduled for 4 February 2015, was postponed until 11 March 2015 at the applicant’s request.
26 At the hearing on 11 March 2015, the parties presented oral argument and replied to the Court’s questions.
27 At the hearing, in response to the question referred to in paragraph 24 above, the Council relied on the notice of 11 December 2012 and produced a copy thereof at the request of the Court. That document was placed on the case file without any objection from the applicant. The applicant submitted observations on that document, a formal note of which was recorded in the minutes of the hearing.
28 In its application, the applicant claims that the Court should:
– annul Implementing Regulation No 1245/2011 and Regulation No 267/2012 (together, ‘the contested legal acts’) in so far as those acts concern the applicant;
– order the Council to pay the costs.
29 In its reply, the applicant additionally claims that the Court should order the Council to pay the applicant the sum of EUR 90 528 392.56 by way of damages.
30 In its defence, the Council contends that the Court should:
– primarily, dismiss the action and order the applicant to pay the costs;
– in the alternative, declare that there is no need to adjudicate.
31 In response to the claim for damages made by the applicant in its reply, the Council contends in addition, in its rejoinder, that the Court should:
– dismiss the claim for damages as manifestly inadmissible or, in the alternative, unfounded;
– order the applicant to pay the costs.
Law
Claims for annulment
32 In support of its application for annulment, the applicant raises three pleas in law. The first of these alleges a manifest error of appraisal of the facts on which the contested legal acts are based, the second alleges an infringement of the principle of proportionality, and the third alleges infringement of the right to a hearing, of the obligation to provide a statement of reasons, of the rights of the defence and of the right to an effective remedy.
33 Without formally raising a plea of inadmissibility under Article 114 of the Rules of Procedure of 2 May 1991, the Council submits, primarily, that the claims for annulment are out of time and, therefore, inadmissible. In the alternative, the Council considers that, given that the applicant’s name was removed from the list appearing in Annex IX to Regulation No 267/2012 by Implementing Regulation No 1203/2013, there is, in any event, no longer any need to adjudicate.
34 The admissibility of the claims for annulment must be examined at the outset, in the light of the time-limit for bringing proceedings.
35 First, the Council submits that it attempted to communicate Implementing Regulation No 1245/2011 to the applicant by the letter of 5 December 2011, which was returned to it by the Iranian postal services. Therefore, as individual communication was impossible, the time-limit for bringing proceedings started to run on the date of publication of the notice of 2 December 2011. Secondly, in relation to Regulation No 267/2012, the Council observed at the hearing that the time-limit for bringing proceedings had started to run on the date of publication of the notice of 11 December 2012 or, at least and as it confirmed in its written pleadings, on the date when the applicant became aware of the adoption of that regulation and of its contents, that is to say, no later than 21 January 2013.
36 The applicant challenges those arguments of the Council, on the grounds that, in essence, in the absence of individual communication of the contested legal acts, the time-limit for bringing proceedings had not started to run. In particular, first, in relation to Implementing Regulation No 1245/2011, the applicant maintains that the Council cannot rely on the fact that the letter of 5 December 2011 was returned by the Iranian postal services, since it was the Council’s responsibility to ensure that its letters were actually received. Secondly, in relation to Regulation No 267/2012, the applicant submits, in essence, that the Council should have attempted to communicate directly with it, or, at least, to communicate with its lawyer, and, in any event, the notice of 11 December 2012 should not have started the time-limit running for bringing proceedings. In addition, to the extent that it had a legitimate expectation that, following the judgment in Oil Turbo Compressor v Council, cited in paragraph 12 above (EU:T:2012:579), the Council would remove its name from the lists appearing in Annex VIII to Regulation No 961/2010 and Annex IX to Regulation No 267/2012, since inclusion on the list had been based on the same grounds as those in Decision 2011/783, which that judgment annulled with regard to the applicant, the applicant regards time-barring of the present action as contrary to the principle of lawful administration. The applicant also adds that the Council, which failed to respond to its letters of 21 January, 6 February and 29 April 2013, should have paid attention to the applicant’s views and indicated, as appropriate, the legal remedy available to it.
37 The first point to bear in mind is that, according to the sixth paragraph of Article 263 TFEU, ‘proceedings provided for in this article shall be instituted within two months of the publication of the 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’.
38 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 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 their adoption, in order to enable those persons or entities to exercise their right to bring an action (judgment of 6 September 2013 in Bank Melli Iran v Council, T‑35/10 and T‑7/11, ECR, EU:T:2013:397, paragraph 56; see also, to that effect, judgment of 16 November 2011 in Bank Melli Iran v Council, C‑548/09 P, ECR EU:C:2011:735, paragraph 47 and the case-law cited).
39 That situation is a consequence of the particular nature of the acts imposing restrictive measures on a person or entity, which at the same time resemble both measures of general application in that they impose on a category of addressees determined in a general and abstract manner a prohibition on, inter alia, making available funds and economic resources to persons and entities named in the lists contained in their annexes and also a series of individual decisions affecting those persons and entities (see judgment of 23 April 2013 in Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, ECR, EU:C:2013:258, paragraph 56 and the case-law cited).
40 In the present case, that principle is given specific effect by Article 36(3) of Regulation No 961/2010 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.
41 It follows that while, admittedly, the entry into force of measures such as the contested legal acts is effected by their publication, the period for the bringing of an action for the annulment of those acts under the fourth paragraph of Article 263 TFEU runs, for each of those persons and entities, from the date of the communication which they must receive (judgment in Gbagbo and Others v Council, cited in paragraph 39 above, EU:C:2013:258, paragraph 59).
42 That period therefore starts to run either on the date of individual communication of that act to the party in question, where that party’s address is known, or on the date of publication of a notice in the Official Journal, where the party’s address is not (judgment of 16 July 2014 in Hassan v Council, T‑572/11, ECR, EU:T:2014:682, paragraph 33; see also, to that effect, judgment in Gbagbo and Others v Council, cited in paragraph 39 above, EU:C:2013:258, paragraphs 59 to 62).
43 In that respect, it should be added that the Council is not free to choose arbitrarily the means of communication of its decisions to the persons concerned. According to the case-law, the provisions cited in paragraph 40 above must be interpreted as meaning that, when the Council has the address of a person subject to restrictive measures, where the acts incorporating those measures are not communicated directly, the period with which that person must comply in order to challenge those acts before the Court does not begin to run. Thus, it is only where it is impossible to communicate individually to the person concerned the act by which restrictive measures against him are adopted or maintained that the publication of a notice in the Official Journal causes the period for bringing an action to begin to run (see, by analogy, judgment of 5 November 2014 in Mayaleh v Council, T‑307/12 and T‑408/13, ECR, EU:T:2014:926, paragraph 60 and the case-law cited; see also, to that effect and by analogy, judgment in Gbagbo and Others v Council, cited in paragraph 39 above, EU:C:2013:258, paragraphs 61 and 62).
44 The second point to bear in mind is that, according to the case-law, the Council may be considered to be unable to communicate individually to a natural or legal person or to an entity an act incorporating restrictive measures relating to that person or entity either when the latter’s address is not published and has not been supplied to the Council or when the communication sent to the address which the Council has fails, in spite of the steps which it has taken, with all necessary diligence, in order to effect such communication (judgment in Mayaleh v Council, cited in paragraph 43 above, EU:T:2014:926, paragraph 61).
45 The admissibility of the present claims for annulment must, primarily, be examined in the light of those considerations.
46 In the first place, in relation to the admissibility of the claim for annulment of Implementing Regulation No 1245/2011, in so far as it affects the applicant, it is undisputed that on 2 December 2011, that regulation was the subject of a notice published in the Official Journal for the attention of the persons and entities covered by the restrictive measures.
47 It should also be noted that on 6 December 2011 the Council sent to the applicant the letter of 5 December 2011 with a form for acknowledgement of receipt, informing the applicant of its inclusion in the single Annex to Implementing Regulation No 1245/2011. It is undisputed that that letter was returned to the Council with ‘not at this address’ stamped on it by the Iranian postal services.
48 It therefore appears that, for the purposes of the case-law cited in paragraph 44 above, the Council was unable to communicate individually, just as it would have been had it not known the applicant’s address. Despite the arguments to the contrary put forward by the applicant at the hearing, that statement is true even if the address was correct.
49 In sending the letter of 5 December 2011 to the applicant, the Council took care to send it by registered post and to include a form for acknowledgement of receipt. It should be pointed out that this standard of delivery is known to the authorities responsible for the postal service in Iran (see, to that effect, order of 20 November 2012 in Shahid Beheshti University v Council, T‑120/12, EU:T:2012:610, paragraph 49). In addition, it constitutes a suitable means of individual communication for the purposes of the case-law cited in paragraphs 42 and 43 above, since, according to the case-law, notification by registered letter with a signed acknowledgment of receipt is a method which enables the date from which time begins to run to be determined with certainty (see, to that effect, judgment of 30 May 1984 in Ferriera Vittoria v Commission, 224/83, ECR, EU:C:1984:208, paragraph 9 and the case-law cited).
50 Thus, the Council, which has only limited resources in Iran to research the private addresses of all those individuals and entities affected by the restrictive measures regime (see, by analogy, the judgment in Hassan v Council, cited in paragraph 42 above, EU:T:2014:682, paragraph 58), must be regarded as having shown the requisite diligence in respect of its obligation to communicate to the applicant the restrictive measures taken against it.
51 Consequently, taking into account the case law cited in paragraph 44 above, and contrary to the applicant’s arguments, it was legitimate for the Council to rely on the indication given by the Iranian postal services that the applicant had changed address, without there being any need to repeat the communication in a fresh attempt either by post or by other means.
52 In particular, contrary to the arguments raised by the applicant at the hearing, it should be pointed out that, following the return of the letter of 5 December 2011, the Council was not obliged to communicate Implementing Regulation No 1245/2011 to the applicant by fax or email. Indeed, the applicant has not established that the Council was in possession of its fax number or its email address. On the contrary, the applicant merely alleged that those contact details could have been found on the internet, although it did not supply any evidence of that.
53 Under those circumstances, the time-limit for bringing proceedings in respect of Implementing Regulation No 1245/2011 began to run on the date of publication of the notice of 2 December 2011.
54 That conclusion is reinforced by the fact that, in the case leading to the judgment in Oil Turbo Compressor v Council, cited in paragraph 12 above (EU:T:2012:579), the applicant brought an action for annulment of Decision 2011/783 within the time-limit. That decision, which was adopted on the same day as Implementing Regulation No 1245/2011, was based on the same grounds for listing the applicant as was the regulation and was also the subject of the notice of 2 December 2011.
55 Therefore, the claim for partial annulment of Implementing Regulation No 1245/2011, lodged on 15 October 2013, is inadmissible for being out of time.
56 In the second place, in relation to the admissibility of the claim for annulment of Regulation No 267/2012, in so far as that measure affects the applicant, it is undisputed that, as the Council stated in response to a question raised by the Court by way of measures of organisation of procedure, that regulation, which was published in the L series of the Official Journal, was neither communicated to the applicant nor was it, at the time of its adoption on 23 March 2012, the subject of a notice published in the Official Journal for the attention of the persons and entities covered by the restrictive measures that it established.
57 However, it is also undisputed that on 11 December 2012, the Council published a notice in the Official Journal for the attention of the persons and entities affected by the restrictive measures under, inter alia, Regulation No 267/2012. The publication of that notice, which informs the said persons and entities of the possibility of submitting a request to the Council to reconsider the decision to include them in, inter alia, the list appearing in Annex IX to the said regulation, caused the time-limit for bringing proceedings to begin to run in relation to the applicant (see, to that effect, order in Jannatian v Council (cited in paragraph 24 above, EU:T:2014:134, paragraph 22).
58 That consideration is not called into question either by the absence, as was submitted by the applicant, of any attempt on the part of the Council to notify the applicant or its lawyer of Regulation No 267/2012, or by the fact, as was also submitted by the applicant, that the notice of 11 December 2012 does not mention the legal remedies available or the time-limits for challenging the lawfulness of its inclusion in Annex IX to that regulation.
59 In the first place, dealing with the lack of notification of Regulation No 267/2012, it must be recalled that paragraphs 47 to 52 above have found that, following the return of the letter of 5 December 2011, it was reasonable for the Council to rely on the indication given by the Iranian postal services that the applicant had changed address, without any need to repeat the communication, whether by post to the same address, by fax or by email.
60 Nor, four months later, at the time of the adoption on 23 March 2012 of Regulation No 267/2012, was the Council under any obligation to send notification of that regulation to an address that it had reason to believe was incorrect. The fact that the address appearing on the envelope enclosing the letter of 5 December 2011 corresponds to that appearing in the pleadings lodged by the applicant in the case leading to the judgment in Oil Turbo Compressor v Council, cited in paragraph 12 above (EU:T:2012:579), does not affect that finding, and indeed the applicant does not suggest that it should.
61 Secondly, it must be pointed out that, despite the arguments to the contrary raised by the applicant at the hearing, the Council was also under no obligation to notify the applicant’s lawyer of Regulation No 267/2012.
62 In view of the wording of the sixth paragraph of Article 263 TFEU, it should be made clear that, where an act must be notified in order for the time-limit for bringing proceedings to begin to run, it must in principle be sent to the addressee of the act, and not to the lawyers representing him. According to the case-law, notification to an applicant’s representative amounts to notification to the addressee only where such a form of notification is expressly provided for in the legislation or by agreement between the parties (see judgment in Mayaleh v Council, cited in paragraph 43 above, EU:T:2014:926, paragraph 74 and the case-law cited), and not unilaterally by one of them (judgment of 11 July 2013 in BVGD v Commission, T‑104/07 and T‑339/08, EU:T:2013:366, paragraph 146).
63 In the present case, aside from the fact that Regulation No 267/2012 does not contain anything providing for the communication of the restrictive measures to the representative of a person or entity affected, it must also be borne in mind that the applicant has not proven the existence of any such agreement between itself and the Council on the basis of which the Council could have, or should have, communicated the regulation to its representative in order to start the time-limit running.
64 At the hearing, the applicant relied on the authority of 28 December 2011, by which it authorised its representative in connection with any procedure relating to restrictive measures taken against it. The applicant stated that that authority had been sent to the Council by letter of 9 February 2012, although that letter does not appear in the case file, and that it was also annexed to its application in the case leading to the judgment in Oil Turbo Compressor v Council, cited in paragraph 12 above (EU:T:2012:579). The applicant also relied on the letters sent by its representative to the Council on 21 January, 6 February and 29 April 2013.
65 However, neither the authority of 28 December 2011 nor the letters of 21 January, 6 February or 29 April 2013, annexed to the application, show that there was any agreement between the applicant and the Council that would permit the Council to communicate Regulation No 267/2012 to the applicant’s representative. On the contrary, those documents are the expression of a unilateral decision on the part of the applicant to authorise its representative to represent it in relation to the restrictive measures taken against it and, within that context, to receive any potential notifications from the Council. Such a unilateral decision is insufficient with regard to the case-law referred to in paragraph 62 above. In the absence of an agreement between the parties as required by the case-law cited in paragraph 62 above, the mere fact that the Council knew of the authority given to the applicant’s lawyer, and the latter’s address, is insufficient to impose on the Council an obligation to send a notification to the lawyer.
66 Under those circumstances, it must be held that the lack of individual communication of Regulation No 267/2012 to the applicant and its lawyer is not, in itself, capable of preventing the time-limit for bringing proceedings from being calculated from the date of publication of the notice of 11 December 2012.
67 In the second place, it must be noted that the fact that the notice of 11 December 2012 does not, as the applicant observed during the hearing, contain any indication as to the possibility for the persons and entities covered by the restrictive measures to bring proceedings before the Court under the second paragraph of Article 275 TFEU and the fourth and sixth paragraphs of Article 263 TFEU is not capable of affecting the finding that that publication enabled the applicant to be aware of the substance of the reasons for its inclusion in Annex IX to Regulation No 267/2012.
68 First, according to the case-law, in the absence of express provisions of EU law, the EU institutions cannot be placed under a general obligation to inform individuals of the remedies available or of the conditions under which they may be exercised (orders of 5 March 1999 in Guérin automobiles v Commission, C‑153/98 P, ECR, EU:C:1999:123, paragraph 15, and Guérin automobiles v Commission, C‑154/98 P, ECR, EU:C:1999:124, paragraph 15; 30 March 2000 Méndez Pinedo v ECB, T‑33/99, ECR-SC, EU:T:2000:94, paragraph 36; see also to that effect, order of 7 December 2004 in Internationaler Hilfsfonds v Commission, C‑521/03 P, EU:C:2004:778, paragraph 44).
69 Regulation No 267/2012 does not contain any provision obliging the Council to indicate, at the time of communication via the publication of a notice in the Official Journal, the legal remedies available or the conditions under which they may be exercised. In particular, Article 46(3) of the regulation, which deals with communication of the grounds for adopting restrictive measures to the persons and entities concerned (see paragraph 40 above) does not contain any obligation to that effect.
70 In addition and in any event, bearing in mind the factors in paragraph 54 above, it must be found that, in the present case, the applicant was aware of the available remedies and the time-limits and, in particular, of the possibility of challenging the restrictive measures introduced against it.
71 In the light of the foregoing, it must be held that the time-limit for bringing proceedings began to run, in respect of Regulation No 267/2012, on the date of publication of the notice of 11 December 2012. Therefore, the claim for partial annulment of that regulation, lodged on 15 October 2013, is inadmissible for being out of time.
72 In any event, even supposing that publication of the notice of 11 December 2012 could not be regarded as being the point at which the time-limit for bringing annulment proceedings began due to the lack of any mention of the remedies available to the applicant to challenge its inclusion in Annex IX to Regulation No 267/2012, it must still be noted that, in the letter sent to the Council on 21 January 2013, the applicant’s representative pointed out that, following the judgment in Oil Turbo Compressor v Council, cited in paragraph 12 above (EU:T:2012:579), the applicant’s name had still not been removed from Annex II to Decision 2010/413 nor from Annex IX to Regulation No 267/2012, reference being made, in that regard, to paragraph 103 of Part I B of Annex IX to that regulation, which is the precise point at which the applicant’s name appears.
73 It follows from the information on the case file referred to in paragraph 72 above that the applicant’s representative and, therefore, the applicant itself had exact and certain knowledge of the inclusion of the applicant in Annex IX to Regulation No 267/2012 and of the grounds for that inclusion no later than the date of the letter of 21 January 2013. In that regard, the argument raised by the applicant at the hearing, alleging that, on that date, only its representative and not the applicant itself knew of the latter’s inclusion in Annex IX to Regulation No 267/2012 and of the grounds for that inclusion, must be rejected. It is of note that the applicant also submitted at the hearing that, even if the Council was able to rely on the indication given by the Iranian postal services that the applicant had changed address, the Council nonetheless could have, and should have, communicated the regulation to its representative. The applicant cannot, without contradicting itself, confirm that a communication to its representative amounts to individual communication, whilst maintaining that a reference made by its representative to its inclusion in Annex IX to Regulation No 267/2012 does not prove that it had knowledge of this itself.
74 Therefore, in the circumstances of the present case, it is sufficient to find that, even if the date of publication of the notice of 11 December 2012 could not be accepted, as the applicant maintains, the present action would still be out of time since it is clear from the information on the case file that the applicant knew of its inclusion in Annex IX to Regulation No 267/2012 no later than 21 January 2013.
75 It must be noted in addition that, in relation to the freezing of funds, the taking into account of the date of the applicant’s awareness of the adoption of restrictive measures against it and the grounds for those measures is not contrary to the case-law, cited by the applicant, according to which the time-limit for bringing proceedings does not start to run where the Council omits to individually communicate an act imposing restrictive measures on a person or entity to that person or entity, even though the Council was aware of the person’s or entity’s address (see, to that effect, judgments in Bank Melli Iran v Council, cited in paragraph 38 above, EU:T:2013:397, paragraph 59; 16 September 2013 Bank Kargoshaei and Others v Council, T‑8/11, EU:T:2013:470, paragraph 44; Hassan v Council, cited in paragraph 42 above, EU:T:2014:682, paragraph 38; and Mayaleh v Council, cited in paragraph 43 above, EU:T:2014:926, paragraphs 60 and 66), or indeed in the absence of any communication, either individually or through the publication of a notice (see, to that effect, judgments of 4 February 2014 in Syrian Lebanese Commercial Bank v Council, T‑174/12 and T‑80/13, ECR, EU:T:2014:52, paragraph 54, and 23 September 2014 Mikhalchanka v Council, T‑196/11 and T‑542/12, EU:T:2014:801, paragraph 57).
76 In the judgments cited in paragraph 75 above, the Court did not rule either on the date on which the party concerned had knowledge of the acts in question or on the question as to whether, in the absence of communication of those acts, that date could be taken into account in determining the starting point of the period for bringing proceedings. In addition, even though, at paragraph 62 of the judgment in Gbagbo and Others v Council, cited in paragraph 39 above (EU:C:2013:258), the Court indicated that where it is impossible for the Council to directly communicate the acts in question to the persons in question but those acts have been the subject of notices published in the Official Journal, those persons cannot rely on the fact that they actually became aware of those acts at a later date, it should be noted that the Court did not, however, rule on the implications of becoming aware of the act where there was no communication of the act in question. In fact, the disputed acts in the case leading to that judgment had been communicated via the publication of a notice in the Official Journal.
77 In the light of the foregoing, and in particular of the conclusions drawn in paragraphs 71 and 74 above, it must be found that the claim for annulment of Regulation No 267/2012, in so far as it concerns the applicant, lodged on 15 October 2013, is inadmissible for being out of time.
78 The conclusions drawn in paragraph 55 and 77 above are not affected by the other arguments raised by the applicant. Those arguments allege that time-barring of the claims for annulment are contrary to the principle of lawful administration to the extent that it had a legitimate expectation that, following the judgment in Oil Turbo Compressor v Council, cited in paragraph 12 above (EU:T:2012:579), the Council would remove its name from the lists appearing in Annex VIII to Regulation No 961/2010 and Annex IX to Regulation No 267/2012, and that the Council, which had failed to reply to its letters of 21 January, 6 February and 29 April 2013, should have paid attention to its views and, as appropriate, indicated to it the legal remedy available.
79 In that regard, first, it must be recalled that rules concerning time-limits for bringing proceedings are mandatory and must be applied by the court in question in such a way as to safeguard legal certainty and equality of persons before the law (judgment of 18 January 2007 in PKK and KNK v Council, C‑229/05 P, ECR, EU:C:2007:32, paragraph 101) and that those time-limits, for reasons of legal certainty, form an inherent limit on the right of access to the courts (see, to that effect, order of 12 September 2013 in Ellinika Nafpigeia and 2. Hoern v Commission, C‑616/12 P, EU:C:2013:884, paragraph 31).
80 To accept the applicant’s arguments, based on the alleged failure by the Council to reply to its letters of 21 January, 6 February and 29 April 2013 and the allegedly unlawful refusal by the Council to remove the applicant’s name from the single Annex to Implementing Regulation No 1245/2011 and from Annex IX to Regulation No 267/2012, would be contrary to that purpose behind the time-limit for bringing proceedings.
81 Next, in relation to the applicant’s complaint about the Council’s allegedly unlawful refusal, following the judgment in Oil Turbo Compressor v Council, cited in paragraph 12 above (EU:T:2012:579), to remove the applicant’s name from the list of persons and entities covered by restrictive measures against Iran, it should be pointed out that an action for failure to act provided for by Article 265 TFEU is the appropriate means for obtaining a declaration that the failure by an institution to take the necessary measures to comply with a judgment is unlawful (judgment of 19 February 2004 in SIC v Commission, T‑297/01 and T‑298/01, ECR, EU:T:2004:48, paragraph 32) or for determining whether, in addition to replacing the measure annulled, the institution was also bound to take other measures relating to other acts which were not challenged in the initial action for annulment (judgments of 26 April 1988 in Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, ECR, EU:C:1988:199, paragraphs 22 to 24, and 18 September 1996 Asia Motor France and Others v Commission, T‑387/94, ECR, EU:T:1996:120, paragraph 40).
82 Finally, it should be noted that the seriousness of the alleged infringement by the institution concerned or the extent of its adverse impact on the observance of fundamental rights could not, in any event, give rise to non-application of the rules for admissibility expressly laid down by the Treaty (see, to that effect, order of 10 May 2001 in FNAB and Others v Council, C‑345/00 P, ECR, EU:C:2001:270, paragraph 40).
83 In the light of all the foregoing considerations, the claims for annulment of the contested legal acts, in so far as they concern the applicant, must be dismissed as inadmissible for being out of time, without there being any need to examine the Council’s claim in the alternative for a declaration of no need to adjudicate.
Claim for damages
84 In its reply, the applicant claims by way of ‘supplementary application’ compensation in the sum of EUR 90 528 392.56 for the loss that it allegedly suffered since, as a result of the adoption of unlawful restrictive measures, it was unable to honour contracts that it had entered into with its customers, to whom it had to pay contractual penalties and liquidated damages. As to the admissibility of this claim, the applicant first relies on the judgment of 26 June 1990 in Sofrimport v Commission (C‑152/88, ECR, EU:C:1990:259), which, it says, shows that a claim for compensation can be joined to a claim for annulment. Secondly, the applicant alleges that the introduction of such a claim in its reply is sensible for reasons of procedural economy, stating that the damages claimed relate to the subject-matter of the present proceedings.
85 The Council argues that the claim for damages contained in the reply is manifestly inadmissible, in that it modifies the subject-matter of the proceedings as defined in the application initiating proceedings. In addition, to the extent that the compensation claim is based on the unlawfulness of Decision 2011/783, the Court does not have jurisdiction to deal with it. In any case, the Council contends, the claim is unfounded.
86 Under Article 44(1)(c) of the Rules of Procedure of 2 May 1991, an applicant is required to state in the application the subject-matter of the proceedings and the form of order sought. Although Article 48(2) of those rules authorises, in certain circumstances, new pleas in law to be introduced in the course of proceedings, that provision cannot in any circumstances be interpreted as authorising the applicant to bring new claims before the Court and thereby to modify the subject-matter of the proceedings (judgments of 18 September 1992 in Asia Motor France and Others v Commission, T‑28/90, ECR, EU:T:1992:98, paragraph 43, and 20 May 2009 VIP Car Solutions v Parliament, T‑89/07, ECR, EU:T:2009:163, paragraph 110; see also, by analogy, judgment of 25 September 1979 in Commission v France, 232/78, ECR, EU:C:1979:215, paragraph 3).
87 In the present case, it is absolutely clear that the application sought only the annulment of Implementing Regulation No 1245/2011 and Regulation No 267/2012, in so far as those measures concerned the applicant. At the hearing, in response to a question raised by the Court, the applicant also expressly confirmed that interpretation of its application, a formal note of that being recorded in the minutes of the hearing.
88 In those circumstances, since the subject-matter of the proceedings was defined in the application as consisting of a claim for annulment of Implementing Regulation No 1245/2011 and of Regulation No 267/2012, the claim for compensation made in the reply is, in view of the case-law cited in paragraph 86 above, inadmissible.
89 That conclusion is not affected by the applicant’s arguments.
90 First, to the extent that the applicant relies on the judgment in Sofrimport v Commission, cited in paragraph 84 above (EU:C:1990:259), it should be noted that the circumstances of the present case are different from those in the case leading to that judgment, so that that judgment has no relevance when assessing the admissibility of the compensation claim. In that case, as can be seen in paragraph 1 of the judgment, both the claim for annulment and the compensation claim appeared in the application initiating proceedings.
91 Secondly, to the extent that the applicant relies on reasons of procedural economy, it should be recalled that the conditions for admissibility set out in Article 44(1)(c) of the Rules of Procedure of 2 May 1991 are mandatory (see, to that effect, order of 17 July 2014 in Melkveebedrijf Overenk and Others v Commission, C‑643/13 P, EU:C:2014:2118, paragraph 38, and judgment of 21 March 2002 in Joynson v Commission, T‑231/99, ECR, EU:T:2002:84, paragraph 154) and cannot, therefore, be left to the discretion of the parties. Allowing the applicant to lodge in its reply a new compensation claim, the subject-matter of which is different from the forms of order sought in the application, whereas it could have made that claim in the application itself, would amount to allowing the applicant to ignore those mandatory admissibility conditions.
92 In view of the foregoing considerations, it must be held that the compensation claim, which was raised for the first time in the reply, must be dismissed as inadmissible (see, to that effect, judgment of 11 June 2014 in Syria International Islamic Bank v Council, T‑293/12, EU:T:2014:439, paragraph 83).
93 In the light of all the foregoing considerations, the action must be dismissed in its entirety.
Costs
94 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Council.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Dismisses the action as inadmissible;
2. Orders Oil Turbo Compressor Co. (Private Joint Stock) to bear its own costs and to pay those incurred by the Council of the European Union.
Martins Ribeiro | Gervasoni | Madise |
Delivered in open court in Luxembourg on 23 October 2015.
[Signatures]