Action brought on 29 January 2014 – Post Bank Iran v Council
(Case T-68/14)
Language of the case: English
Parties
Applicant: Post Bank Iran (Tehran, Iran) (represented by: D. Luff, lawyer)
Defendant: Council of the European Union
Form of order sought
The applicant claims that the Court should:
Annul paragraph 1 of the Annex to Council Decision 2013/661/CFSP of 15 November 2013 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2013 L 306, p. 18);
Annul paragraph 1 of the Annex to Council Implementing Regulation (EU) No 1154/2013 of 15 November 2013 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2013 L 306, p. 3) ;
Declare Article 20(1)(c) of Council Decision 2010/413/CFSP1 , as amended by Article 1(7) of Council Decision 2012/35/CFSP2 of 23 January 2012, and Articles 23 (2) (d) and 46(2) of Regulation 267/20123 of 23 March 2012 inapplicable to the applicant;
Order the defendant to pay the applicant’s costs.
Pleas in law and main arguments
In support of the action, the applicant relies on six pleas in law.
First plea in law, alleging that the Court has jurisdiction to review both paragraph 1 of the Annex to Council Decision 2013/661/CFSP and paragraph 1 of the Annex to Council Implementing Regulation (EU) No 1154/2013 and their conformity with the general principles of European law.
Second plea in law, alleging that Council Decision 2010/413/CFSP, as amended by Article 1(7) of Council Decision 2012/35/CFSP of 23 January 2012 and Council Regulation 267/2012 of 23 March 2012, violates EU law and should be declared inapplicable to the Applicant, thus invalidating Council Decision 2013/661/CFSP of 15 November 2013 and Council Implementing Regulation (EU) No 1154/2013 of 15 November 2013 which are based on them, for the following reasons:
Article 46(2) of Council Regulation 267/2012 of 23 March 2012 violates Article 215 TFEU, since it enables the Council to decide sanctions against the Applicant without abiding by the procedure provided in Article 215 TFEU.
Article 20(1)(c) of Council Decision 2010/413/CFSP, as amended by Article 1(7) of Council Decision 2012/35/CFSP of 23 January 2012 and Article 23 (2)(d) of Regulation 267/2012 of 23 March 2012 violate the persons’ fundamental rights as protected in Articles 2, 21 and 23 of the TEU and the EU Charter of fundamental rights insofar as they provide the Council with the arbitrary powers to decide which person and entity the Council wants to sanction when the Council determines that such person or entity provides support to the Government of Iran.
Third plea in law, alleging that the Council erred in law and in fact when it adopted Council Decision 2013/661/CFSP of 15 November 2013 and Council Implementing Regulation (EU) No 1154/2013 of 15 November 2013 as far as the Applicant is concerned, for the following reasons:
The specific reason for the listing of Post Bank Iran is unsubstantiated. The Applicant clearly denied it provided financial support to the Government of Iran. Furthermore, the Applicant has not provided nuclear support to Iran. Hence the requirements of Article 20.1(c) of Council Decision 2010/413/CFSP (as subsequently amended by Article 1(7) of Council Decision 2012/35/CFSP of 23 January 2012, Article 1(8) of Council Decision 2012/635/CFSP of 15 October 2012 and Article 1(2) of Council Decision 2012/829/CFSP of 21 December 2012), and the requirements of Article 23(2)(d) of Council Regulation (EU) No 267/2012 (as subsequently amended by Article 1(11) of Council Regulation 1263/2012 of 21 December 2012) are not met.
By sanctioning Post Bank Iran on the sole grounds it is a Government-owned company, the Council discriminated against the Applicant as compared with other publicly-owned companies of Iran which are not sanctioned. While doing so, the Council violated the principles of equality, non-discrimination and sound administration.
The Council did not adequately state the reasons of its decision to maintain the Applicant in the list of sanctioned entities. While referring to the “impact of the measures in the context of the Union’s policy objectives”, it failed to specify the type of impact it refers to and how the measures would address such impact.
By maintaining the Applicant in the List of sanctioned companies, the Council has misused its powers. The Council refused in practice to comply with the Judgment of the General Court in case T-13/11. The Council undermined the institutional construct of the European Union and the Applicant’s right to obtain justice and see it applied. The Council also evaded its own responsibilities and obligations under Council Decision 2013/661/CFSP of 15 November 2013 and Council Implementing Regulation (EU) No 1154/2013 of 15 November 2013, as they were clearly specified to the Council by the Court in its above-mentioned Judgment.
The Council violated the principle of legitimate expectations by not complying with a judgment of the Court, in which the Council was a party against the 4 Applicant and which the Council lost, by failing to even comply with the rationale and motivations of the Judgment, by making a factual mistake regarding the Applicant’s business and its presumed role towards the Government of Iran , by failing to carry out the slightest investigation into the Applicant’s actual role and business in Iran whereas this was indicated by the Court as an important aspect of the EU’s sanctions’ regime against Iran, and by maintaining the sanctions beyond 20 January 2014, date at which the EU agreed on revenue generating activities for Iran, since Iran is no longer considered to engage in nuclear proliferation activities.
The Council violated the principle of proportionality. The sanctions target nuclear proliferation activities of Iran. The Council has not established and cannot establish that the Applicant has directly or indirectly provided support for nuclear proliferation in Iran. It even no longer alleges that it is contributing specifically to nuclear proliferation in Iran. Given the lack of impact of the sanctions on nuclear proliferation, the objective of the sanctions does not justify the annulment of the benefits accruing to the Applicant from the Court’s judgment and the stress they impose on the overall system of judicial protection in the EU, let alone the violation of the Applicant’s right of property and of commerce. This conclusion is reinforced by the adoption on 20 January 2014 of the Council’s regulation lifting certain sanctions based on the acknowledgment that Iran is actually not engaging in nuclear proliferation activities.
____________1 Council Decision of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39)
2 Council Decision 2012/35/CFSP of 23 January 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 19, p. 22)
3 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)