JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
18 September 2015 (*)
(Common foreign and security policy — Restrictive measures against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Right to be heard — Obligation to state reasons — Rights of the defence — Manifest error of assessment — Proportionality — Right to property — Equal treatment and non-discrimination)
In Case T‑428/13,
Iranian Oil Company UK Ltd (IOC-UK), established in London (United Kingdom), represented by J. Grayston, Solicitor, P. Gjørtler, G. Pandey, D. Rovetta, M. Gambardella, D. Sellers and N. Pilkington, lawyers,
applicant,
v
Council of the European Union, represented by V. Piessevaux and M. Bishop, acting as Agents,
defendant,
supported by
United Kingdom of Great Britain and Northern Ireland, represented initially by S. Behzadi-Spencer and V. Kaye, and subsequently by V. Kaye, acting as Agents, and by M. Gray, Barrister,
intervener,
APPLICATION for annulment, first, of Council Decision 2013/270/CFSP of 6 June 2013 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2013 L 156, p. 10), and, secondly, of Council Implementing Regulation (EU) No 522/2013 of 6 June 2013 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2013 L 156, p. 3),
THE GENERAL COURT (Seventh Chamber),
composed of M. van der Woude (Rapporteur), President, I. Wiszniewska-Białecka and I. Ulloa Rubio, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written procedure and further to the hearing on 5 February 2015,
gives the following
Judgment
Background to the dispute
1 The applicant, Iranian Oil Company UK Ltd (IOC-UK), is a company established in the United Kingdom, wholly owned by Naftiran Intertrade Co. (‘NICO’), itself wholly owned by National Iranian Oil Co. (‘NIOC’). The applicant operates under a licence granted by the United Kingdom Government in 1972 to explore and exploit hydrocarbon reserves in the North Sea, including the Rhum gas field, the exploitation rights to which are held jointly by the applicant and BP Exploration Operating Company Ltd. (‘BP’).
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 9 June 2010, the United Nations Security Council (‘the Security Council’) adopted resolution 1929 (2010) (‘Resolution 1929’) with the intention of widening the scope of the restrictive measures introduced by Security Council resolutions 1737 (2006), 1747 (2007) and 1803 (2008) and introducing additional restrictive measures against the Islamic Republic of Iran.
4 On 17 June 2010, the European Council underlined its deepening concern about Iran’s nuclear programme and welcomed the adoption of Resolution 1929. Recalling its declaration of 11 December 2009, it invited the Council of the European Union to adopt measures implementing those contained in Resolution 1929 as well as accompanying measures, with a view to supporting the resolution of all outstanding concerns regarding the Islamic Republic of Iran’s development of sensitive technologies in support of its nuclear and missile programmes, through negotiation. The measures in question were to focus on the areas of trade, the financial sector, the Iranian transport sector, key sectors of the gas and oil industry and additional designations, in particular for the Islamic Revolutionary Guard Corps.
5 On 26 July 2010, the Council 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 which lists the names of the persons and entities — other than those designated by the Security Council or by the Sanctions Committee created by resolution 1737 (2006), referred to in Annex I — whose assets were to be frozen. Recital 22 in the preamble to that decision refers to Resolution 1929 and states that that resolution notes the potential connection between the revenues derived by the Islamic Republic of Iran from its energy sector and the funding of its proliferation-sensitive nuclear activities.
6 Consequently, in the context of the FEU Treaty, the Council adopted, on 25 October 2010, Regulation (EU) No 961/2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1).
7 Articles 8 and 9 of Regulation No 961/2010, which implement Article 4 of Decision 2010/413, prohibited, in particular, the sale, supply or transfer of key equipment or technology for the key sectors of the oil and natural gas industry in Iran and also the provision of technical assistance, brokering services or financial assistance related to that equipment or technology to any Iranian person, entity or body or for use in Iran. However, Article 10 of that regulation provides that:
‘The prohibitions in Articles 8 and 9 shall not apply to transactions required by a trade contract concluded before the date of entry into force of this Regulation, or by a contract or agreement concluded before 26 July 2010 and relating to an investment in Iran made before 26 July 2010, nor shall they prevent the execution of an obligation arising therefrom, provided that the natural or legal person, entity or body seeking to engage in the transaction or to provide assistance has notified, at least 20 working days in advance, the transaction or assistance to the competent authorities of the Member State in which it is established, as identified on the websites listed in Annex V.’
8 Following the adoption of Regulation No 961/2010, BP wrote, first, on 27 October 2010, to the United Kingdom Department of Energy and Climate Change (‘DECC’) informing it that in BP’s view the applicant was an Iranian entity within the meaning of that regulation and that BP therefore saw no alternative but to shut down production until clarification had been obtained, and, secondly, on 28 October 2010, to Her Majesty’s Treasury and the United Kingdom Department for Business, Innovation & Skills (‘BIS’) in order to obtain information about the regulation concerned.
9 On 4 November 2010, BP informed the applicant that, pending clarification regarding Regulation No 961/2010, preparations to suspend production were under way. The applicant disputed that position, taking the view that Article 10 of the regulation allowed production to continue.
10 On 10 November 2010, BP informed the other contractual partners under the various transportation and processing agreements that production was being suspended.
11 On 31 March 2011, in reply to BP’s letters of 28 October 2010, Her Majesty’s Treasury and BIS stated that production could continue. However, as BP claimed not to have found any service providers for both technical and financial services, the suspension of production was maintained.
12 On 23 January 2012, the Council adopted Decision 2012/35/CFSP amending Decision 2010/413 (OJ 2012 L 19, p. 22). Recital 13 in the preamble to that decision states that the restrictions on admission and the freezing of funds and economic resources should be applied to additional persons and entities providing support to the Government of Iran allowing it to pursue proliferation-sensitive nuclear activities or the development of nuclear weapon delivery systems, in particular persons and entities providing financial, logistical or material support to the Government of Iran.
13 Article 1(7)(a)(ii) of Decision 2012/35 added the following point to Article 20(1) of Decision 2010/413, which provides for the freezing of funds belonging to persons and entities:
‘(c) other persons and entities not covered by Annex I that provide support to the Government of Iran, and persons and entities associated with them, as listed in Annex II.’
14 Consequently, on 23 March 2012, the Council adopted Regulation (EU) No 267/2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1). In order to implement Article 1(7)(a)(ii) of Decision 2012/35, Article 23(2) of Regulation No 267/2012 provides for the freezing of funds of the persons, entities and bodies listed in Annex IX, who have been identified as:
‘(d) being other persons, entities or bodies that provide support, such as material, logistical or financial support, to the Government of Iran, and persons and entities associated with them.’
15 On 15 October 2012, the Council adopted Decision 2012/635/CFSP amending Decision 2010/413 (OJ 2012 L 282, p. 58). According to recital 16 in the preamble to that decision, additional persons and entities should be included in the list of persons and entities subject to restrictive measures as set out in Annex II to Decision 2010/413, in particular Iranian State-owned entities engaged in the oil and gas sector, since they provide a substantial source of revenue for the Iranian Government.
16 Article 1(8)(a) of Decision 2012/635 amended Article 20(1) of Decision 2010/413 by inserting into that paragraph the following provisions, covering the imposition of restrictive measures on certain persons and entities:
‘(c) 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.’
17 Furthermore, Article 1(8)(e) of Decision 2012/635 added paragraph 13 to Article 20 of Decision 2010/413 which reads as follows:
‘13. Paragraphs 1 and 2 shall not apply to acts and transactions carried out with regard to entities listed in Annex II which hold rights derived from an original award before 27 October 2010, by a sovereign Government other than Iran, of a gas production sharing agreement, in so far as such acts and transactions relate to those entities’ participation in that agreement.’
18 Article 2 of Decision 2012/635 placed in Annex II to Decision 2010/413, first, the name of NIOC, on the grounds that that entity, owned and operated by the Iranian State, provided financial resources to the Iranian Government and, secondly, the name of NICO, on the grounds that that entity was wholly owned by NIOC.
19 Consequently, on the same date, the Council adopted Implementing Regulation (EU) No 945/2012 implementing Regulation No 267/2012 (OJ 2012 L 282, p. 16). Article 1 of that implementing regulation placed NIOC’s and NICO’s names in Annex IX to Regulation No 267/2012 for the same reasons as those stated in Decision 2012/635.
20 Following the adoption of Decision 2012/635, which introduced, in Article 20(13) of Decision 2010/413, an exemption under the restrictive measures in order to protect the energy security of the European Union, the Council adopted, on 14 November 2012, Regulation (EU) No 1067/2012 amending Regulation No 267/2012 (OJ 2012 L 318, p. 1). Article 1 of that regulation introduced Article 28a into Regulation No 267/2012, which provides:
‘The prohibitions in Article 23(2) and (3) shall not apply to acts and transactions carried out with regard to entities listed in Annex IX:
(a) which hold rights derived from an original award before 27 October 2010, by a sovereign Government other than Iran, of a production sharing agreement as referred to in Article 39, in so far as such acts and transactions relate to those entities’ participation in that agreement;
(b) in so far as necessary for the execution, until 31 December 2014, of the obligations arising from contracts referred to in point (b) of Article 12(1) provided that those acts and transactions have been authorised in advance, on a case-by-case basis, by the competent authority concerned and that the Member State concerned has informed the other Member States and the Commission of its intention to grant an authorisation.’
21 On 21 December 2012, the Council adopted Regulation (EU) No 1263/2012 amending Regulation No 267/2012 (OJ 2012 L 356, p. 34). Article 1(11) of that regulation amended Article 23(2)(d) of Regulation No 267/2012, which thus provides for the freezing of the funds of the persons, entities and bodies listed in Annex IX thereto that have been identified as ‘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’.
22 According to recital 10 in the preamble to Regulation No 1263/2012, where a Member State had granted a licence to engage in the activities of exploitation of hydrocarbons to a designated person, entity or body before that person, entity or body was designated, the competent authority of that Member State may authorise derogation from certain prohibitions provided for in Regulation No 267/2012 where such derogation is needed to avoid or remediate environmental damage or permanent destruction of the licence’s value.
23 Article 1(22) of Regulation No 1263/2012 thus inserted Article 43a into Regulation No 267/2012, which provides:
‘1. By way of derogation from Articles 8, 9, Article 17(1) as regards an Iranian person, entity or body referred to in Article 17(2)(b), Articles 23(2) and (3) in so far as they refer to persons, entities and bodies listed in Annex IX, Article 30 and 35, the competent authorities of a Member State may authorise, under such conditions as they deem appropriate, activities related to the exploration for, or exploitation of, hydrocarbons within the Union undertaken pursuant to a licence for such exploration or exploitation issued by a Member State to a person, entity or body listed in Annex IX, if the following conditions are met:
(a) the licence for the exploration for, or exploitation of, hydrocarbons within the Union was issued prior to the date on which the person, entity or body listed in Annex IX was designated; and
(b) the authorisation is necessary to avoid or remediate environmental damage in the Union or to prevent permanent destruction of the licence’s value, including by securing the pipeline and infrastructure used in connection with the licensed activity, on a temporary basis. Such authorisation may include measures taken under national legislation.
2. The derogation provided for in paragraph 1 shall only be granted for such period as necessary and its validity shall not exceed the validity of the licence issued to the person, entity or body listed in Annex IX. In case the competent authority considers that subrogation to contracts or the provision of indemnities is necessary, the period of validity of the derogation shall not exceed five years.
3. The Member State concerned shall notify the other Member States and the Commission of its intention to grant an authorisation at least ten working days prior to the authorisation. In case of threat to the environment in the Union requiring urgent action to prevent damage to the environment, the Member State concerned may grant an authorisation without prior notification and shall notify the other Member States and the Commission within three working days after having granted the authorisation.’
24 Pursuant to Article 43a of Regulation No 267/2012, the United Kingdom Government adopted regulations on hydrocarbons on 4 June 2013, which enabled DECC to apply a temporary scheme to the hydrocarbons interests of a person subject to restrictive measures and thus to manage that person’s activities, the proceeds being paid into a blocked account and beneficially owned by that person.
25 On 6 June 2013, the Council adopted Decision 2013/270/CFSP amending Decision 2010/413 (OJ 2013 L 156, p. 10). In accordance with Article 1 of that decision, the applicant’s name was placed in Annex II to Decision 2010/413, which contains the list of ‘Persons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of Iran’.
26 Consequently, on the same date, the Council adopted Implementing Regulation (EU) No 522/2013 implementing Regulation No 267/2012 (OJ 2013 L 156, p. 3; together with Decision 2013/270, ‘the contested measures’). Article 1 of that regulation included the applicant’s name in Annex IX to Regulation No 267/2012, which contains the list of ‘Persons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of Iran’.
27 The applicant’s name was included in the lists of ‘Persons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of Iran’ by the contested measures for the following reasons:
‘IOC is wholly owned by Naftiran Intertrade Company (NICO). NICO is itself designated under EU sanctions because it is wholly owned by the National Iranian Oil Company (NIOC), which is also an EU designated entity because it provides financial resources to the Government of Iran. All three Board Directors of IOC as at 18 December 2012 have previously worked for NIOC in a directorship role, further demonstrating the strong link between IOC and NIOC.’
28 The contested measures were communicated to the applicant by letter of 10 June 2013.
29 On 8 July 2013, DECC sent the applicant a preliminary notice informing it of DECC’s intention to apply a temporary management scheme with respect to the applicant’s hydrocarbons interests and inviting it to make representations in that regard. By letter of 23 July 2013, the applicant submitted its arguments to DECC.
30 By letter of 12 August 2013, the applicant asked the Council to communicate to it, first, a summary of the reasons for its designation in the lists at issue and, secondly, the relevant evidence to justify that designation and any written exchange between the Council and the other EU institutions, Member States and their authorities and also with third countries and their authorities concerning the grounds for that designation and any written exchange, including at the preparatory stage, between the Council’s officials and services on that matter.
31 On the same date, the Council acknowledged receipt of the applicant’s letter and informed it that the letter was under examination.
Procedure and forms of order sought
32 By application lodged at the Court Registry on 19 August 2013, the applicant brought the present action.
33 By document lodged at the Registry on 16 December 2013, the United Kingdom of Great Britain and Northern Ireland sought leave to intervene in these proceedings in support of the form of order sought by the Council. By order of 20 February 2014, the President of the Seventh Chamber of the Court granted leave to intervene.
34 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.
35 The applicant claims that the Court should:
– order the Council to produce a copy of the administrative file concerning the applicant;
– annul the contested measures in so far as they concern the applicant;
– order the Council to pay the costs.
36 The Council contends that the Court should:
– refuse the applicant’s application in respect of measures of organisation of procedure or of inquiry;
– declare the action unfounded;
– order the applicant to pay the costs.
Law
37 In support of its action, the applicant puts forward seven pleas in law. The first plea alleges infringement of the right to a hearing. The second plea alleges infringement of the obligation to state reasons. The third plea alleges infringement of the rights of the defence. The fourth plea alleges a manifest error of assessment. The fifth plea alleges breach of the principle of proportionality. The sixth plea alleges infringement of the right to property. The seventh plea alleges breach of the principle of equality and non-discrimination.
38 The Court considers that the first three pleas, which relate, in essence, to infringement of the rights of the defence, should be examined together.
The first, second and third pleas in law, alleging infringement of the obligation to state reasons and of the rights of the defence
39 The applicant submits, first of all, that the statement of reasons for the contested measures stems from a stereotypical formulation that completely fails to state the reasons for its designation and is not supported by the slightest evidence. It states that the mere fact that it is owned, directly or indirectly, by an entity that is itself designated by virtue of the restrictive measures in question does not constitute a sufficient statement of reasons, and it maintains that a listing must be substantiated by reasons that relate to the person concerned.
40 In addition, it submits that, while a limited statement of reasons may be accepted in cases linked to terrorism, in the present case the statement of reasons ought to have been more detailed, since the applicant is an English company operating in compliance with all obligations under English law. Furthermore, it emphasises that the measures at issue are unilateral sanctions, in that they were not agreed within the Security Council, and therefore asks the Court to make clear that in these circumstances the Council is under a heightened obligation to provide a more detailed and comprehensive statement of reasons.
41 Next, the applicant maintains that there was no exceptional circumstance that enabled it to be deprived of its right to be given a hearing. It states that since 2010 it has no longer received any income and that, as an EU-registered undertaking, it was prevented from transferring income to a designated company; there was thus no need to freeze its assets without warning and without a prior hearing. In addition, the applicant claims that, since it is not alleged to have played an active part in any illicit activities, it was not proportionate to set aside its right to a hearing.
42 Lastly, it submits that, in notifying it of measures containing an insufficient statement of reasons, in infringing its right to a hearing and in failing to respond to its request for access to the documents in the file, the Council infringed its rights of defence.
43 In the reply, the applicant also states that it was only when the defence was lodged, on 14 November 2013, that the Council finally granted partial access to the requested documents.
44 It should be borne in mind, in the first place, that, according to a consistent body of case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, secondly, to enable those Courts to review the legality of that act (see judgment of 15 November 2012 in Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 49 and the case-law cited).
45 The statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review (judgment in Council v Bamba, cited in paragraph 44 above, EU:C:2012:718, paragraph 50).
46 As regards the restrictive measures adopted in the context of the common foreign and security policy, it must be pointed out that, where the person concerned is not afforded the opportunity to be heard before the adoption of an initial listing decision, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling the person concerned, at least after the adoption of that decision, to make effective use of the legal remedies available to him in order to challenge the lawfulness of that decision (judgment in Council v Bamba, cited in paragraph 44 above, EU:C:2012:718, paragraph 51, and judgment of 12 December 2006 in Organisation des Modjahedines du peuple d’Iran v Council, T‑228/02, ECR (‘OMPI I’), EU:T:2006:384, paragraph 140).
47 Therefore, the statement of reasons for an act of the Council which imposes a restrictive measure must not only identify the legal basis of that measure but also the actual and specific reasons why the Council considers, in the exercise of its discretion, that that measure must be adopted in respect of the person concerned (see, to that effect, judgments in Council v Bamba, cited in paragraph 44 above, EU:C:2012:718, paragraph 52; OMPI I, cited in paragraph 46 above, EU:T:2006:384, paragraph 146; and judgment of 14 October 2009 in Bank Melli Iran v Council, T‑390/08, ECR, EU:T:2009:401, paragraph 83).
48 The statement of reasons must, however, be appropriate to the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him (judgments in Council v Bamba, cited in paragraph 44 above, EU:C:2012:718, paragraphs 53 and 54; OMPI I, cited in paragraph 46 above, EU:T:2006:384, paragraph 141; and Bank Melli Iran v Council, cited in paragraph 47 above, EU:T:2009:401, paragraph 82).
49 In the second place, it may be recalled that, according to settled case-law, observance of the rights of the defence, especially the right to be heard, in all proceedings initiated against an entity which may lead to a measure adversely affecting that entity, is a fundamental principle of EU law which must be guaranteed, even when there are no rules governing the procedure in question (see judgment in Bank Melli Iran v Council, cited in paragraph 47 above, EU:T:2009:401, paragraph 91 and the case-law cited).
50 The principle of respect for the rights of the defence requires, first, that the entity concerned must be informed of the evidence adduced against it to justify the measure adversely affecting it. Secondly, it must be afforded the opportunity effectively to make known its view on that evidence (see, by analogy, judgment in OMPI I, cited in paragraph 46 above, EU:T:2006:384, paragraph 93). By contrast, neither the legislation in question, namely Decision 2010/413 and Regulation No 267/2012, nor the general principle of observance of the rights of the defence, gives the persons concerned the right to a formal hearing (see, to that effect and by analogy, judgment of 23 October 2008 in People’s Mojahedin Organization of Iran v Council, T‑256/07, ECR, EU:T:2008:461, paragraph 93 and the case-law cited).
51 As regards an initial measure whereby the funds of an entity are frozen, it has been held that the evidence adduced against that entity should be notified to it either concomitantly with or as soon as possible after the adoption of the measure concerned. At the request of the entity concerned, it also has the right to make known its view on that evidence after the adoption of the measure (see, to that effect and by analogy, judgment of 3 September 2008 in Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, ECR, EU:C:2008:461, paragraph 342, and judgment in OMPI I, cited in paragraph 46 above, EU:T:2006:384, paragraph 137).
52 Communication of the evidence adduced and a hearing of the parties concerned, before the adoption of the initial decision to freeze funds, would be liable to jeopardise the effectiveness of the sanctions and would thus be incompatible with the public interest objective pursued by the European Union. An initial measure freezing funds must, by its very nature, be able to benefit from a surprise effect and to be applied with immediate effect. Such a measure cannot, therefore, be the subject-matter of notification before it is implemented (see, to that effect and by analogy, judgment in OMPI I, cited in paragraph 46 above, EU:T:2006:384, paragraph 128).
53 The arguments put forward by the applicant in the context of the first, second and third pleas in law must be examined in the light of the case-law recalled above.
The obligation to state reasons
54 As a preliminary point, it must be noted that the question of the statement of reasons, which concerns an essential procedural requirement, is separate from that of the evidence of the alleged conduct, which concerns the substantive legality of the act in question and involves assessing the truth of the facts set out in that act and the characterisation of those facts as evidence justifying the use of restrictive measures against the person concerned (see, to that effect, judgment in Council v Bamba, cited in paragraph 44 above, EU:C:2012:718, paragraph 60).
55 Accordingly, in the present case, the questions as to whether the statement of reasons for the contested measures is supported by evidence, and whether the indirect links between NIOC and the applicant or the fact that former members of the applicant’s board of directors have previously worked for NIOC in a directorship role demonstrates that there is control, are relevant only in the context of the fourth plea, alleging an error of assessment. Those questions are not, however, relevant in the context of the present plea.
56 In the first place, and principally, the Court considers that the principles that emerge from the case-law referred to in paragraphs 44 to 48 above apply in the same way to any decision to freeze funds, irrespective of the entity concerned by that decision or the origin of its listing.
57 First, it should be pointed out that those principles, which fall within the scope of compliance with fundamental rights, are also applied when reviewing the legality of a decision imposing restrictive measures with a view to combating terrorism (see, to that effect, judgment of 18 July 2013 in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, ECR (‘Kadi II’), EU:C:2013:518, paragraph 116). The applicant is therefore wrong to claim that a limited statement of reasons may be accepted when sanctions are imposed on persons or entities involved in acts of terrorism, and that a more detailed statement of reasons is required in circumstances such as those of the present case.
58 Secondly, it must be noted that those principles relating to the obligation to state reasons apply in all circumstances, not least when the reasons stated for the measure represent reasons stated by an international body, such as the Security Council (see, to that effect, judgment in Kadi II, cited in paragraph 57 above, EU:C:2013:518, paragraph 116). Although, in those circumstances, the Council can refer to the reasons stated in the Security Council’s decision, it is clear from the case-law that the Council is certainly not absolved of its obligation to ascertain that those reasons satisfy the principles set out in paragraphs 44 to 48 above. While the extent of the review of compliance with fundamental rights in the case of a statement of reasons for an EU measure is thus unaffected by the fact that that measure is the result of a decision adopted within the United Nations, it nevertheless cannot be concluded from this, as the applicant asserts, that the obligation to state reasons must be greater if the restrictive measures are imposed autonomously by the Council. The obligation to state reasons applies in the same way to all decisions imposing restrictive measures, irrespective of the origin of the decision.
59 Therefore, the applicant is wrong to claim that the Council was under a greater obligation in this instance to state reasons for the contested measures.
60 In the second place, the Court considers that, taken as a whole, the reasons given in the contested measures were sufficient, in that they enabled the applicant to identify the legal basis of those measures and to understand the grounds on which the restrictive measures were adopted against it.
61 It will be recalled that, according to the grounds constituting the statement of reasons for the contested measures, the applicant is wholly owned by NICO, ‘itself designated under EU sanctions because it is wholly owned by [NIOC], which is also an EU designated entity because it provides financial resources to the Government of Iran’. In addition, the last sentence of those grounds indicates that ‘[a]ll three Board Directors of [the applicant] as at 18 December 2012 [had] previously worked for NIOC in a directorship role, further demonstrating the strong link between [the applicant] and NIOC’.
62 As regards, first, the question whether that statement of reasons identifies the legal basis of the measures taken by the Council against the applicant, in accordance with the case-law cited in paragraph 47 above, it is clear from the reasons which the Council gave in the contested measures that it relied on Article 20(1)(c) of Decision 2010/413, as amended, and on Article 23(2)(d) of Regulation No 267/2012, those articles providing for the freezing of funds of entities owned or controlled by an entity identified as providing support to the Government of Iran, or associated with such an entity.
63 Secondly, as regards the question whether the reasons on which the Council relied in order to justify the applicant’s name being included in the lists set out the actual and specific reasons for that listing, it must be noted, first of all, that those reasons clearly indicate the links between the applicant and NICO and the applicant and NIOC, and recall that NIOC itself was listed on the ground that it provided financial resources to the Government of Iran. The applicant is identified in the contested measures as a company that is wholly owned by NICO, which in turn is wholly owned by NIOC. Furthermore, the Council indicated that those close links between the applicant and NIOC were confirmed by the presence of former directors of NIOC on the applicant’s board of directors.
64 Next, it must be borne in mind that the reference to such links between NICO, NIOC and the applicant is sufficient to substantiate the latter’s listing on the basis of Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012. In addition to the legal criterion relating to the support provided to the Government of Iran, those provisions also include a criterion of ownership or control which requires the Council to freeze the funds of entities owned or controlled by an entity providing such support to the Government of Iran.
65 Consequently, the Council was not required to justify its decision to place the applicant’s name on the lists on the basis that the applicant itself provided support to the Government of Iran, but could confine itself to indicating the links of ownership or control which, according to the Council, existed between the applicant and NIOC.
66 Lastly, contrary to the applicant’s assertion, the fact that it was not placed on the lists at the same time as NIOC and NICO, in October 2012, although the Council was aware of the fact that it was also an indirect subsidiary of NIOC, does not in any way permit the inference that the Council ought to have given further reasons for its decision when, eight months later, it adopted restrictive measures against the applicant. Given that the Council is bound to comply with the provisions of Decision 2010/413 and Regulation No 267/2012 which require it, inter alia, to freeze the funds of entities owned or controlled by an entity providing support to the Government of Iran, (see paragraphs 89 to 100 below), any divergent practice of that institution’s cannot properly permit a derogation from that act, nor, a fortiori, give rise to any legitimate expectations on the part of the entities concerned (see, to that effect, judgment of 9 July 2009 in Melli Bank v Council, T‑246/08 and T‑332/08, ECR, EU:T:2009:266, paragraph 75). Consequently, in the present case, even on the assumption that the Council was aware of the existence of a link of ownership or control between NIOC and the applicant in October 2012, yet did not at that time place the applicant’s name on the lists at issue, that could not preclude the Council from freezing the applicant’s funds subsequently, or oblige it to give further reasons for its decision by referring not just to the existence of that link of ownership or control, but also to other evidence such as the emergence of a new event or concern.
67 In the light of those circumstances, it must therefore be concluded that the statement of reasons enabled the applicant to understand that the Council had relied on the capital links or links of control between the applicant and companies already included on the lists at issue — in this instance, NICO and NIOC — links which, moreover, were known to the applicant and the existence of which it does not dispute.
68 Consequently, the Council has not infringed the obligation to state reasons.
The right to a hearing
69 The applicant claims, in essence, that the Council was obliged to warn it and to grant it a hearing before adopting the contested measures, given that the requirement of speed and surprise was not warranted in its case.
70 In that regard, it must be observed that it is unequivocally clear from the case-law cited in paragraph 52 above that an initial measure freezing funds and economic resources must, by its very nature, be able to benefit from a surprise effect and cannot, therefore, give rise to notification or a hearing before it is implemented. The applicant cannot, therefore, reasonably maintain that the conditions connected with the need for a surprise effect were not satisfied in this case, and criticise the Council for having infringed its right to a prior hearing.
71 Furthermore, even on the assumption that, in exceptional circumstances, a measure freezing funds and economic resources need not benefit from a surprise effect and that the Council is therefore required to give notice in advance of its intention to adopt such a measure, it must be held that, in the present case, the circumstances invoked by the applicant would not have ensured that the effectiveness of the sanctions would be guaranteed.
72 First, the mere existence of rules prohibiting the carrying-out of transactions with entities whose names are included in the lists of persons and/or entities subject to restrictive measures does not guarantee that such transactions will not be performed, in particular where the entity whose funds and economic resources the Council intends to freeze is owned or controlled by one of the entities already included on the lists at issue, as in the present case. Because any contravention can be uncovered only after the event, the existence of those rules is unable to ensure a preventative effect equivalent to that of restrictive measures (see, to that effect, judgment in Melli Bank v Council, cited in paragraph 66 above, EU:T:2009:266, paragraph 127).
73 Secondly, the fact that the applicant has not received any further income since 2010 certainly does not mean that it does not have funds or other economic resources. It was therefore not inconceivable that the applicant might have transferred certain funds outside the European Union if it had been warned in advance of the Council’s intention to subject it to restrictive measures, which would thus have had an impact on the effectiveness of those measures.
74 Accordingly, the Council has not infringed the applicant’s right to a hearing.
The right of access to the file
75 The applicant claims that the Council gave it only partial access to the documents to which it requested access, and only when the defence was lodged, on 14 November 2013, that is two months after the applicant’s initial request.
76 The Court nevertheless considers that, in the present case, neither the Council’s delayed response to the applicant’s request for access to documents nor the partial nature of that response supports the conclusion that the applicant’s rights of defence have been infringed.
77 In the first place, it should be borne in mind that when sufficiently precise information has been communicated, enabling the entity concerned to make its point of view on the evidence adduced against it by the Council known to advantage, the principle of respect for the rights of the defence does not mean that the Council is obliged spontaneously to grant access to the documents in its 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 (see judgment in Bank Melli Iran v Council, cited in paragraph 47 above, EU:T:2009:401, paragraph 97 and the case-law cited).
78 In the present case, the Council informed the applicant individually, by letter of 10 June 2013, of the reasons for the restrictive measures taken against it, which were sufficient to enable the applicant to understand the evidence adduced against it and, therefore, to be able effectively to make known its view in that regard (see paragraphs 54 to 67 above). The Council did not therefore infringe the applicant’s rights of defence as regards the initial communication of the evidence against it.
79 As regards the applicant’s request for access to the evidence justifying the entry of its name on the lists at issue, it must be noted, first of all, that that request was communicated to the Council by letter of 12 August 2013, only seven days before the present action was brought. The Council cannot therefore be criticised for having failed to reply to that request before 19 August 2013, the date on which the application was lodged with the Court.
80 Next, as regards the documents disclosed by the Council when the defence was lodged on 14 November 2013, it must be noted that the applicant has been in a position to peruse them and to modify its arguments as necessary during the proceedings.
81 Consequently, the Council’s delayed response to the applicant’s request for access to documents did not prevent the applicant from exercising its rights of defence.
82 In the second place, it should be noted that the failure to communicate a document on which the Council relied in order to adopt or maintain the restrictive measures to which an entity is subject does not constitute a breach of the rights of the defence that would justify annulment of the acts concerned unless it is established that the restrictive measures concerned could not have been lawfully adopted or maintained if the document that was not communicated had to be excluded as inculpatory evidence (judgment of 6 September 2013 in Bank Melli Iran v Council, T‑35/10 and T‑7/11, ECR, EU:T:2013:397, paragraph 100).
83 Consequently, in the present case, even if the Council did grant only partial access to the file concerning the applicant’s inclusion on the lists at issue, and refused, in particular, to communicate certain documents relating to the discussions held with certain Member States regarding that listing, that could not justify the annulment of the contested measures unless it was also established that the adoption of the restrictive measures concerning the applicant could not be justified solely by the information communicated to the applicant in good time, namely the reasons set out in the contested measures. That question as to whether the justification for the restrictive measures concerning the applicant, as set out in the statement of reasons for the contested measures, was well founded will be examined below in the context of the fourth plea (paragraphs 86 to 107).
84 It follows from this that the Council did not infringe the applicant’s rights of defence as regards access to the information in the file and that, in so far as the reasons set out in the contested measures were sufficient to justify the freezing of the applicant’s funds, which will be covered when examining the fourth plea, there is no reason for the Court to order the Council to produce a copy of the administrative file concerning the applicant or other documents contained in that file.
85 In the light of all the foregoing, the first, second and third pleas in law must be rejected as unfounded.
The fourth plea in law, alleging an error of assessment
86 The applicant submits that the Council’s decision is based on a manifestly incorrect set of factual assumptions, which shows that the Council failed to make a proper assessment of the situation.
87 By the first part of this plea, the applicant maintains that its listing is based on a superficial reading of the corporate links connecting the applicant with NICO and with NIOC, and that the Council has not demonstrated that the parent company-subsidiary relationships between the applicant and NICO and between NICO and NIOC were such that the applicant’s activities would provide financial resources to the Government of Iran.
88 By the second part of that plea, the applicant submits that the Council failed to assess whether the applicant was in a position, both in fact and in law, to provide funds to the Iranian State.
89 The Council challenges that line of argument. It observes that the applicant’s name was listed not because it was providing financial support to the Government of Iran but because it was owned, controlled by, and associated with, an entity that was providing such support. It states that it is not necessary, in such a case, to show that the entity thus owned or controlled itself satisfies the criterion on the basis of which the entity owning or controlling it was listed.
The first part of the fourth plea in law
90 First of all, it must be observed that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires, in particular, 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 in the lists, 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 (judgment in Kadi II, cited in paragraph 57 above, EU:C:2013:518, paragraph 119).
91 It is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded. It is necessary that the information or evidence produced should support the reasons relied on against the person concerned. If that material is insufficient to allow a finding that a reason is well founded, the Courts of the European Union shall disregard that reason as a possible basis for the contested decision to list or maintain a listing (judgment in Kadi II, cited in paragraph 57 above, EU:C:2013:518, paragraphs 121 to 123).
92 Next, it must be pointed out that, given the not insignificant danger that an entity identified as providing support to the Government of Iran may exert pressure on the entities it owns or controls in order to circumvent the effect of the fund-freezing measures applying to it, by encouraging them either to transfer their funds to it, directly or indirectly, or to carry out transactions which it cannot itself perform by reason of the freezing of its funds, Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012 require a fund-freezing measure to be adopted against those entities owned or controlled by an entity identified as providing support to the Government of Iran, and the Council has no discretion in that regard (see, to that effect, judgment of 13 March 2012 in Melli Bank v Council, C‑380/09 P, ECR, EU:C:2012:137, paragraphs 39 and 58, and judgment in Melli Bank v Council, cited in paragraph 66 above, EU:T:2009:266, paragraph 63).
93 Accordingly, when adopting a decision under Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012, the Council must assess the circumstances of the case in order to determine which entities are entities that are owned or controlled. By contrast, the nature of the activities of the entity concerned and any lack of a link between those activities and the provision of support to the Government of Iran are not relevant criteria in that context, since the reason for the adoption of a fund-freezing measure against the entity that is owned or controlled need not be that that entity is itself directly providing support to that government (see, to that effect, judgments in Melli Bank v Council, cited in paragraph 92 above, EU:C:2012:137, paragraphs 40 to 42, and Melli Bank v Council, cited in paragraph 66 above, EU:T:2009:266, paragraph 69).
94 Lastly, it is also settled case-law that, where the share capital of an entity is wholly owned by an entity providing support to the Government of Iran, the listing criterion laid down in Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012 is satisfied (see, to that effect, judgment in Melli Bank v Council, cited in paragraph 92 above, EU:C:2012:137, paragraph 79).
95 It follows that the adoption of restrictive measures against an entity wholly owned by, or belonging entirely to, an entity considered to be providing support to the Government of Iran (‘the wholly-owned entity’) is not a consequence of an assessment by the Council as to the risk that the wholly-owned entity might be led to circumvent the effect of the measures adopted against the parent entity, but is the direct result of the implementation of the relevant provisions of Decision 2010/413 and Regulation No 267/2012, as interpreted by the Courts of the European Union (see, to that effect, judgment of 20 February 2013 in Melli Bank v Council, T‑492/10, ECR, EU:T:2013:80, paragraph 57).
96 In the present case, the Council found that, owing to the fact that NIOC held 100% of the share capital of NICO, which held all of the applicant’s share capital, the applicant had to be considered to be owned and controlled by NIOC within the meaning of Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012.
97 Having regard to that holding chain, the Court considers that the Council did not make an error of assessment in adopting the restrictive measures in respect of the applicant.
98 In accordance with the case-law cited in paragraph 94 above, the fact that an entity providing support to the Iranian Government owns the entire capital of an entity implies of itself that the criterion for inclusion laid down in Article 20(1)(c) of Decision 2010/413, as amended, and in Article 23(2)(d) of Regulation No 267/2012 is satisfied. Moreover, it should be noted that, in the field of competition law, in which the issue of the relationship between a subsidiary and its parent company also has to be addressed, the existence of intermediary companies between those two companies does not affect the application of the rebuttable presumption that the parent company in question exercises decisive influence over the conduct of its subsidiary. It is indeed considered that it is possible for such influence to be exercised indirectly via intermediary companies (see, to that effect, judgments of 20 January 2011 in General Química and Others v Commission, C‑90/09 P, ECR, EU:C:2011:21, paragraph 88, and of 27 September 2012 in Shell Petroleum and Others v Commission, T‑343/06, ECR, EU:T:2012:478, paragraph 52).
99 Accordingly, where the capital of an entity is indirectly held by an entity providing support to the Iranian Government, the criterion for inclusion laid down in Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012 is satisfied, irrespective of the presence and number of intermediary companies between that parent entity and the entity that is owned by it, provided that each of the entities present in the holding chain is itself entirely owned by its direct parent company. In such circumstances, the ultimate parent entity retains sole and exclusive control over all its subsidiaries and is therefore in a position, via intermediary companies, to exert pressure on the entity which it owns indirectly in order to circumvent the effect of the measures applying to it, therefore justifying the adoption of restrictive measures in respect of the entity that is thus indirectly owned.
100 Since, in the present case, the applicant challenges neither the fact that it is owned indirectly by NIOC nor the grounds for including NIOC’s name on the lists, it must be concluded, without any further review, that the ownership condition referred to in Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012 is satisfied.
101 The first part of the fourth plea in law must therefore be rejected as unfounded.
The second part of the fourth plea in law
102 In the second part of its fourth plea, the applicant submits that the assumption that it is in a position to provide financial resources to the Government of Iran is incorrect because it has received no further income since the suspension in 2010 of the operation of the Rhum gas field, and, moreover, because it is required to comply with all the prohibitions and restrictions on transfers to Iranian persons and entities whether their names are included in the lists at issue or not.
103 In the first place, by analogy with the principles derived from the case-law mentioned in paragraphs 92 and 93 above, the applicant’s arguments must be rejected as ineffective. Where, as in the present case, an entity is wholly owned, directly or indirectly, by an entity providing support to the Government of Iran, Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012 require the Council to freeze the funds of the entity thus owned. The Council has no power at all therefore to assess the support which such an entity is allegedly providing to the Government of Iran or the risk that that entity might be led to circumvent the effect of the measures taken against its parent.
104 Accordingly, in challenging the application of restrictive measures in its case, the applicant is not referring to the legality of any assessment of the circumstances of the case made by the Council but to the legality of Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012. The applicant cannot, however, be regarded as having raised a plea of illegality based on the arguments relied on in the context of the fourth plea in law. Those arguments are based only on the circumstances specific to the applicant and are therefore not relevant to an examination of the legality of the general rules laid down in the abovementioned articles.
105 In the second place, in any event, the Court considers, for the same reasons as those set out in paragraphs 72 and 73 above, that the arguments put forward by the applicant, relating to its own particular situation, do not permit the necessity of its funds being frozen in order to ensure the effectiveness of the restrictive measures imposed on its parent company to be put in question. It is clear from the case-law that the mere existence of rules prohibiting, inter alia, companies established within the European Union from carrying out transactions with designated entities does not guarantee that such transactions will not be performed (judgment in Melli Bank v Council, cited in paragraph 66 above, EU:T:2009:266, paragraph 71). The fact that the applicant is subject to the restrictions and prohibitions laid down by Decision 2010/413 and Regulation No 267/2012 cannot, therefore, call into question the legality of the restrictive measures to which it is subject. Furthermore, the applicant’s lack of income does not mean that it has no funds or other economic resources capable of being used by NIOC for the purposes of circumventing the effect of the restrictive measures to which it is subject. The freezing of the applicant’s funds was, therefore, a necessary measure for ensuring the effectiveness of the sanctions imposed on its parent company.
106 The second part of the fourth plea in law must therefore be rejected as ineffective and, in any event, unfounded.
107 In the light of all the foregoing, the fourth plea in law must be rejected in its entirety.
The fifth plea in law, alleging breach of the principle of proportionality
108 The applicant maintains that the contested measures do not meet the standard of proportionality which, in its submission, should be enhanced owing to the autonomous nature of the measures adopted against it. In that regard, it claims that the inclusion of its name on the lists at issue is neither appropriate nor necessary for preventing any payments to the Iranian State because, since 2010, it has received no income following the shut-down of production at the Rhum gas field and, moreover, because it is already subject, by virtue of EU legislation on Iran, to certain restrictions regarding the transfer of its funds to listed or unlisted entities.
109 It must be noted that the arguments put forward by the applicant in the context of the fifth plea merely reiterate those relied on in support of the second part of the fourth plea, and must therefore be rejected for the same reasons (see paragraphs 102 to 106 above).
110 It has, moreover, already been held that, on account of the not insignificant danger that an entity providing support to the Government of Iran may exert pressure on the entities it owns or controls in order to circumvent the effect of the measures applying to it, the freezing of the funds of those entities constitutes a measure that is necessary and appropriate in order to ensure the effectiveness of the measures adopted and to ensure that those measures are not circumvented (see, to that effect, judgment in Melli Bank v Council, cited in paragraph 92 above, EU:C:2012:137, paragraph 58).
111 Accordingly, the fifth plea in law must be rejected.
The sixth plea in law, alleging infringement of the right to property
112 The applicant maintains, in essence, that the Council entered its name on the lists at issue solely in order to enable the United Kingdom Government to subject it to a temporary scheme provided for by an act adopted under national legislation on hydrocarbons, that act having been adopted pursuant to Article 43a of Regulation No 267/2012, two days before the applicant’s name was entered on the lists at issue. By listing the applicant, the Council therefore rendered itself complicit in an act equivalent to an expropriation by the United Kingdom Government.
113 First of all, it must be pointed out that the applicant’s argument that the Council entered its name on the lists at issue solely in order to enable the United Kingdom Government to subject it to a temporary scheme and thus to take control of the Rhum gas field is, in this instance, not relevant for the purpose of examining the legality of the contested measures. In so far as the restrictive measures adopted in respect of the applicant are justified in the light of the criterion of ownership and control by an entity providing support to the Government of Iran and, moreover, do not infringe the applicant’s fundamental rights, any intentions that may be imputed to the Council on the adoption of those measures cannot call into question their legality, since the applicant neither expressly alleges nor demonstrates any misuse of powers on the part of the Council.
114 Next, it must be noted that it is not the freezing of the applicant’s funds that constitutes, in the applicant’s submission, an infringement of its right to property but the transfer of control of the Rhum gas field to the United Kingdom Government as a result of the application of United Kingdom hydrocarbon legislation adopted on the basis of Article 43a of Regulation No 267/2012. It is, therefore, in essence the national measures adopted by the United Kingdom Government that are being challenged before this Court.
115 Acts of the Member States cannot, however, be reviewed in the context of an action for annulment such as that brought, in the present case, before this Court.
116 Lastly, even if the United Kingdom Government was behind the inclusion of the applicant’s name on the lists at issue, which, moreover, has not been established, the fact remains that the contested measures are acts of the Council which, in the present case, did satisfy itself that their adoption was justified (see paragraphs 96 to 100 above).
117 Accordingly, the sixth plea in law must be rejected as inadmissible.
The seventh plea in law, alleging breach of the principle of equality and non-discrimination
118 The applicant claims that, in adopting Article 43a of Regulation No 267/2012 and entering the applicant’s name on the lists at issue, the Council enabled the United Kingdom authorities to resume production in the Rhum gas field by expropriating the applicant’s interests instead of affording it treatment equal to the treatment afforded to its parent company, NICO. The applicant explains that NICO has been able to continue, pursuant to Article 28a of Regulation No 267/2012, to work with EU-based oil companies in an international energy project in Azerbaijan, namely the Shah Deniz project. The applicant therefore submits that, by failing to provide an exclusion for its activities in the same way as that provided for NICO in the context of the Shah Deniz project, the Council breached the principle of equal treatment and non-discrimination.
119 The applicant thus alleges that, by introducing Article 28a into Regulation No 267/2012, the Council granted an exemption in favour of NICO in order to enable NICO, notwithstanding its inclusion in the lists at issue, to pursue its activities in an international energy project in the Shah Deniz gas field in Azerbaijan, without adopting a similar exemption in respect of the applicant even though it is in a comparable situation to that of NICO. On the contrary, in adopting Article 43a of Regulation No 267/2012, which, according to the applicant, was clearly directed at the applicant, the Council enabled the United Kingdom Government to expropriate the applicant’s interests in the operation of the Rhum gas field, thus subjecting it to a more restrictive regime than that provided for in respect of NICO.
120 The Court finds in that regard that the contested measures impose on the applicant sanctions similar to those imposed on NICO, namely the freezing of its funds and economic resources. Accordingly, the applicant’s allegation that the Council breached the principle of equality and non-discrimination in adopting the contested measures must be rejected as unfounded.
121 Nor can the applicant rely on the illegality of Articles 28a and/or 43a of Regulation No 267/2012 since the contested measures are not based on those provisions. In any event, it must be noted that the difference in treatment of the applicant and NICO arises solely as a result of national measures adopted by the United Kingdom Government. Articles 28a and 43a of Regulation No 267/2012 are general provisions which cannot be regarded as introducing special treatment in respect of NICO or the applicant. The temporary scheme to which the latter is subject is no more in fact than the consequence of the application of an act adopted under United Kingdom hydrocarbon legislation. Although that act was adopted in application of Article 43a of Regulation No 267/2012, it must be noted that that provision merely enables the Member States to authorise certain designated entities to pursue their activities related to the exploration for, or exploitation of, hydrocarbons, without however imposing any obligation in that regard or specifying the conditions to which such authorisation should be subject.
122 In those circumstances, the seventh plea in law must be rejected as unfounded or inadmissible, depending on whether that plea covered the contested measures or Articles 28a and 43a of Regulation No 267/2012.
123 In the light of all the foregoing, the action must be dismissed in its entirety.
Costs
124 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 in all its claims, it must be ordered to pay the costs of the present proceedings, in accordance with the form of order sought by the Council.
125 In accordance with Article 138(1) of the Rules of Procedure, the United Kingdom of Great Britain and Northern Ireland, as intervener, shall bear its own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action;
2. Orders Iranian Oil Company UK Ltd (IOC-UK) to bear its own costs and to pay those incurred by the Council of the European Union;
3. Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.
Van der Woude | Wiszniewska-Białecka | Ulloa Rubio |
Delivered in open court in Luxembourg on 18 September 2015.
[Signatures]