JUDGMENT OF THE GENERAL COURT (Second Chamber)
16 May 2019 (*)
(Non-contractual liability — Common foreign and security policy — Restrictive measures against Iran — Freezing of funds — Restriction on admission to the territory of the Member States — Compensation for the damage allegedly sustained by the applicant following its inclusion and re-inclusion in the list of persons and entities subject to the restrictive measures at issue — Sufficiently serious breach of a rule of law conferring rights on individuals)
In Case T‑37/17,
Bank Tejarat, established in Tehran (Iran), represented by S. Zaiwalla, P. Reddy, K. Mittal, A. Meskarian, Solicitors, T. Otty QC, R. Blakeley, V. Zaiwalla, H. Leith, Barristers, and T. de la Mare QC,
applicant,
v
Council of the European Union, represented by M. Bishop and A. Vitro, acting as Agents,
defendant,
supported by
European Commission, represented by L. Havas and J. Norris, acting as Agents,
intervener,
APPLICATION based on Article 268 TFEU for compensation for the damage allegedly sustained by the applicant as a result of Council Implementing Regulation (EU) No 54/2012 of 23 January 2012 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2012 L 19, p. 1), Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1), and Council Implementing Regulation (EU) No 709/2012 of 2 August 2012 implementing Regulation No 267/2012 (OJ 2012 L 208, p. 2),
THE GENERAL COURT (Second Chamber),
composed of M. Prek, President, F. Schalin (Rapporteur) and M.J. Costeira, Judges,
Registrar: F. Oller, Administrator,
having regard to the written part of the procedure and further to the hearing on 5 December 2018,
gives the following
Judgment
Background to the dispute
1 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.
2 The applicant, Bank Tejarat, is an Iranian bank.
3 The applicant’s name was included in the list of designated persons and entities in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), by Council Decision 2012/35/CFSP of 23 January 2012 amending Decision 2010/413 (OJ 2012 L 19, p. 22) and, consequently, in Annex VIII to Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), by Council Implementing Regulation (EU) No 54/2012 of 23 January 2012 implementing Regulation No 961/2010 (OJ 2012 L 19, p. 1).
4 Subsequently, the applicant’s name was included in the list of the designated persons and entities in Annex IX to 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), and in Annex II to Implementing Regulation (EU) No 709/2012 of 2 August 2012 implementing Regulation No 267/2012 (OJ 2012 L 208, p. 2).
5 The restrictive measures mentioned in paragraphs 3 and 4 above are referred to below as ‘the initial listing acts’.
6 Those listings had the effect of freezing all the funds and economic resources held by the applicant within the European Union.
7 In Decision 2012/35, the Council of the European Union stated the following reasons in support of the applicant’s designation:
‘Bank Tejarat is a State-owned bank. It has directly facilitated Iran’s nuclear efforts. For example, in 2011, Bank Tejarat facilitated the movement of tens of millions of dollars in an effort to assist the UN [United Nations] designated Atomic Energy Organisation of Iran’s ongoing effort to acquire yellowcake uranium. The AEOI is the main Iranian organisation for research and development of nuclear technology, and manages fissile material production programs.
Bank Tejarat also has a history of assisting designated Iranian banks in circumventing international sanctions, for example acting in business involving UN designated Shahid Hemmat Industrial Group cover companies.
Through its financial services to EU designated Bank Mellat and Export Development Bank of Iran (EDBI) in the past few years, Bank Tejarat has also supported the activities of subsidiaries and subordinates of the Iran Revolutionary Guard Corps, UN designated Defense Industries Organisation and UN designated Modafl.’
8 By application lodged at the Court Registry on 16 April 2012, the applicant brought an action for annulment of Decision 2012/35, Implementing Regulation No 54/2012, Regulation No 267/2012 and Implementing Regulation No 709/2012, in so far as those acts concerned it.
9 By judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), the Court annulled the acts mentioned in paragraph 8 above in so far as they concerned the applicant, on the ground that the Council had not proven that the applicant had provided support for nuclear proliferation or assisted other persons and entities to infringe or avoid restrictive measures to which they were subject. As no appeal was brought against that judgment, it became final and acquired the force of res judicata.
10 By the adoption of Council Decision (CFSP) 2015/556 of 7 April 2015 amending Decision 2010/413 (OJ 2015 L 92, p. 101) and of Council Implementing Regulation (EU) 2015/549 of 7 April 2015 implementing Regulation No 267/2012 (OJ 2015 L 92, p. 12), the Council re-included the applicant’s name in the list of designated persons and entities, providing a new statement of reasons:
‘Bank Tejarat provides significant support to the Government of Iran by offering financial resources and financing services for oil and gas development projects. The oil and gas sector constitutes a significant source of funding for the Government of Iran and several projects financed by Bank Tejarat are carried out by subsidiaries of entities owned and controlled by the Government of Iran. In addition, Bank Tejarat remains partly owned by and closely linked to the Government of Iran which is therefore in a position to influence Bank Tejarat’s decisions, including its involvement in the financing of projects regarded by the Iranian Government as a high priority.
Furthermore, as Bank Tejarat provides financing to various crude oil productions and refining projects which necessarily require the acquisition of key equipment and technology for those sectors whose supply for use in Iran is prohibited, Bank Tejarat can be identified as being involved in the procurement of prohibited goods and technology.’
11 By application lodged at the Court Registry on 18 June 2015, the applicant sought the annulment of the measures re-including it in the list of designated persons and entities.
12 By judgment of 14 March 2017, Bank Tejarat v Council (T‑346/15, not published, EU:T:2017:164), the Court dismissed the action brought by the applicant, thereby confirming the legality of the decision taken by the Council to re-list the applicant on the basis of the grounds set out in paragraph 10 above.
13 The applicant was, therefore, subject to the restrictive measures at issue for three years. It was then re-included in the list of the designated persons and entities, from the period from 7 April 2015 to 16 January 2016, that is until the date of implementation of the Joint Comprehensive Plan of Action (JCPOA) concluded with the Islamic Republic of Iran in July 2015, which lifted the European Union’s restrictive measures against the applicant.
Procedure and forms of order sought
14 By application lodged at the Court Registry on 23 January 2017, the applicant brought the present action.
15 The Council lodged the defence on 26 April 2017.
16 By document lodged at the Court Registry on 12 May 2017, the Commission sought leave to intervene in the present proceedings in support of the form of order sought by the Council.
17 On 22 May 2017, the Council submitted its observations on the application for leave to intervene.
18 By decision of the President of the First Chamber of the General Court of 12 June 2017, the Commission was granted leave to intervene in support of the form of order sought by the Council.
19 On 19 June 2017, the applicant lodged the reply.
20 On 26 July 2017, the Commission lodged its statement in intervention.
21 On 28 July 2017, the Council lodged the rejoinder.
22 On 6 September 2017, the applicant lodged its observations on the statement in intervention and requested the Court, by letter dated the same day, to adopt measures of organisation of procedure to split the present proceedings into two phases, a liability phase and a quantum phase.
23 By letters of 22 September 2017, the Commission and the Council lodged their observations on the application for measures of organisation of procedure.
24 By decision of the President of the General Court of 11 June 2018, the present case was assigned to a new Judge-Rapporteur, sitting in the Second Chamber.
25 On a proposal from the Judge-Rapporteur, the Court decided to open the oral part of the procedure.
26 The parties presented oral argument and answered questions put to them by the Court at the hearing on 5 December 2018, during which the applicant was asked what conclusions had to be drawn from the judgment of 29 November 2018, Bank Tejarat v Council (C‑248/17 P, EU:C:2018:967), a judgment in which the Court of Justice dismissed the appeal brought against the judgment of 14 March 2017, Bank Tejarat v Council (T‑346/15, not published, EU:T:2017:164). In the light of the applicant’s response, the General Court requested it to produce a document containing the amendments to its heads of claim and a fresh assessment of the damage sustained further to those amendments.
27 By letter lodged at the Court Registry on 2 January 2019, the applicant complied with that request.
28 By measure of organisation of procedure dated 11 January 2019, the applicant was requested to submit its observations on the Council’s argument, made during the hearing, that the General Court does not have jurisdiction to rule in the present action for damages as far as it concerns Decision 2010/413 and its versions as amended by successive decisions.
29 By letter lodged at the Court Registry on 28 January 2019, the applicant submitted its observations, in which it stated that the present action for damages was based on Implementing Regulations No 54/2012, No 267/2012 and No 709/2012 (Implementing Regulations No 54/2012, No 267/2012 and No 709/2012 hereinafter being referred to collectively as ‘the acts at issue’).
30 By letters lodged at the Court Registry on 28 January 2019, the Council and the Commission lodged their observations on the applicant’s replies of 2 January 2019.
31 The oral part of the procedure was closed on 5 February 2019.
32 The applicant claims that the Court should:
– order the Council to pay the following sums to it:
– 399 880 000 United States dollars (USD), being EUR 349 695 249.54 at the prevailing exchange rate on 2 January 2019, in respect of material damage;
– interest on the damage sustained by the applicant, up until the date of the Court’s judgment from the date at which it was sustained, at the European Central Bank (ECB) main refinancing rate plus two per cent per annum, amounting to USD 42 403 569.77 (EUR 37 081 352.43) at 2 January 2019, and at a ‘daily rate of USD 21 911.23 (EUR 19 160.74)’ as from 3 January 2019 until judgment, or, alternatively at such rate and for such period as the Court thinks fit;
– EUR 1 000 000 in respect of non-material damage;
– post-judgment interest on the sums in the foregoing sub-indents at ECB main refinancing rate plus two per cent per annum until the date of payment or, in the alternative, at such rate and for such period as the Court thinks fit;
– order the Council to pay the costs.
33 The Council, supported by the Commission, contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
34 The applicant submits that the adoption of the restrictive measures at issue caused it both material and non-material damage, for which it seeks compensation. The period covered by that claim encompasses the period between 23 January 2012, the date on which the initial listing act was adopted, and 6 April 2015, the day before the applicant’s name was re-included in the list of designated persons and entities.
35 The Council, supported by the Commission, disputes the applicant’s arguments.
36 In order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct of its institutions or bodies, a number of conditions must be satisfied: the conduct of the EU institution or body must be unlawful, actual damage must have been sustained and there must be a causal link between the conduct complained of and the damage pleaded (see judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 47 and the case-law cited).
37 The cumulative nature of those three conditions governing the establishment of non-contractual liability means that, if one of them is not satisfied, the action for damages must be dismissed in its entirety, and there is no need to examine the other conditions (see judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 48 and the case-law cited).
38 It is, therefore, necessary to ascertain, in the present case, whether the applicant has discharged the burden of proving the unlawfulness of the conduct against the Council that it alleges, in connection with the adoption of the acts at issue, that it has actually sustained the material and non-material damage stemming from those acts which it claims, and that there is a causal link between that adoption and the damage which it alleges.
39 With regard to the unlawfulness of the Council’s conduct complained of, the applicant submits in essence that, in the light of the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), it is apparent that the Council committed an unlawful act by entering and maintaining its name in the list of designated persons and entities, even though its decisions were not based on any evidence of the applicant’s participation in nuclear proliferation.
40 In addition, the applicant submits that the adoption of the acts at issue infringes a rule of law intended to confer rights upon individuals, namely the right not to be subject to unlawful sanctions adopted without any supporting evidence.
41 According to the applicant, which refers to the judgment of 25 November 2014, Safa Nicu Sepahan v Council (T‑384/11, EU:T:20l4:986, paragraphs 57 and 58), the Council’s decision to enter or maintain a person’s name in the list of designated persons and entities although it does not have any information or evidence which substantiates the restrictive measures at issue to the requisite legal standard constitutes a sufficiently serious breach of the provisions at issue.
42 The applicant further submits that the Council cannot contend that the provisions which it infringed were vague, ambiguous or unclear because, when the acts at issue were adopted, it was clear that the Council had to provide evidence supporting the restrictive measures which it adopted.
43 The Council disputes the applicant’s arguments.
44 According to settled case-law, a finding that a legal act of the European Union is illegal, made for example in the context of an action for annulment, regrettable as it may be, is not a sufficient basis for holding that the non-contractual liability of the Union, flowing from illegal conduct on the part of one of its institutions, has automatically arisen. In order for that condition to be met, the case-law requires the applicant to demonstrate, first, that the institution in question has not merely infringed a rule of law, but that the infringement is sufficiently serious and that the rule of law was intended to confer rights on individuals (see judgment of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 42 and the case-law cited).
45 Furthermore, the requirement for proof of a sufficiently serious breach is intended to avoid, in the field inter alia of restrictive measures, the institution concerned being obstructed in the exercise of the functions which it is responsible for carrying out, in the general interest of the European Union and its Member States, by the risk of ultimately having to bear losses which the persons concerned by its acts might potentially suffer, without however leaving those individuals to bear the consequences, be they financial or non-material, of flagrant and inexcusable misconduct on the part of the institution concerned (see, to that effect, judgments of 11 July 2007, Schneider Electric v Commission, T‑351/03, EU:T:2007:212, paragraph 125; of 23 November 2011, Sison v Council, T‑341/07, EU:T:2011:687, paragraph 34; and of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 51).
46 According to the case-law, the wider objective of maintaining peace and international security, in accordance with the objectives of the Union’s external action stated in Article 21 TEU, is such as to justify negative consequences for economic operators — even significant negative consequences — arising from decisions implementing acts adopted by the European Union with a view to achieving that fundamental objective (see, to that effect, judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 150 and the case-law cited).
47 Thus, in assessing the conduct of the institution concerned, the Court, hearing an action for damages brought by an economic operator, is also required, having regard in particular to Article 215(2) TFEU, to take account of that fundamental objective of the common foreign and security policy (CFSP), except where the operator is able to establish that the Council failed to comply with its mandatory obligations in a flagrant or inexcusable manner, or that it infringed, again in a flagrant or inexcusable manner, a fundamental right recognised by the European Union (judgment of 13 December 2017, HTTS v Council, T‑692/15, under appeal, EU:T:2017:890, paragraph 46).
48 The fact that one or more of the acts of the Council giving rise to the losses claimed by an applicant may have been annulled, even by a judgment of the General Court delivered before the action for damages had been brought, is not irrefutable evidence of a sufficiently serious breach on the part of that institution, giving rise ipso jure to liability on the part of the European Union (see, to that effect, judgment of 13 December 2017, HTTS v Council, T‑692/15, under appeal, EU:T:2017:890, paragraph 48).
49 The decisive test for a finding that the requirement not to leave those individuals to bear the consequences of flagrant and inexcusable misconduct on the part of the institution concerned has been satisfied, is whether the institution concerned has manifestly and gravely disregarded the limits of its discretion. The determining factor in deciding whether there has been such an infringement is, therefore, the discretion available to the institution concerned. It is apparent from the criteria of the case-law that, if the institution in question has only considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach (see judgment of 23 November 2011, Sison v Council, T‑341/07, EU:T:2011:687, paragraph 35 and the case-law cited).
50 However, that case-law does not establish any automatic link between, on the one hand, the fact that the institution concerned has no discretion and, on the other, the classification of the infringement as a sufficiently serious breach of EU law. The extent of the discretion enjoyed by the institution concerned, although determinative, is not the only yardstick. On this point, the Court of Justice has many times recalled that the system of rules it has developed with regard to the second paragraph of Article 288 EC (now the second paragraph of Article 340 TFEU) also takes into account, in particular, the complexity of the situations to be regulated and the difficulties in applying or interpreting the texts (see judgment of 23 November 2011, Sison v Council, T‑341/07, EU:T:2011:687, paragraphs 36 and 37 and the case-law cited).
51 It follows that only the finding of an irregularity that an administrative authority, exercising ordinary care and diligence, would not have committed in similar circumstances, can render the European Union liable (see judgment of 23 November 2011, Sison v Council, T‑341/07, EU:T:2011:687, paragraph 39 and the case-law cited).
52 It is, consequently, for the EU judicature, once it has first determined whether the institution concerned enjoyed any discretion, next to take into consideration the complexity of the situation to be regulated, any difficulties in applying or interpreting the legislation, the clarity and precision of the rule infringed, and whether the error made was inexcusable or intentional. On any view, an infringement of EU law is sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case-law on the matter from which it is clear that the conduct in question constituted an infringement (see judgment of 23 November 2011, Sison v Council, T‑341/07, EU:T:2011:687, paragraph 40 and the case-law cited).
53 In the present case, it must be borne in mind that, in the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), the General Court annulled the applicant’s inclusion in the list of designated persons and entities, holding that the Council had not provided information to substantiate the contentions in the statement of reasons. In paragraph 73 of that judgment, it confirmed that the annulment of the measures at issue was suspended for a period of two months, extended on account of distance by 10 days, in which the Council might ‘remedy the infringements established by adopting, if appropriate, new restrictive measures with respect to the applicant’.
54 Subsequently, on 7 April 2015, the Council adopted new measures by which the applicant was again included in the list of designated persons and entities, with a new statement of reasons (see paragraph 10 above).
55 In the judgment of 14 March 2017, Bank Tejarat v Council (T‑346/15, not published, EU:T:2017:164), first, the Court held that the Council was entitled, pursuant to Article 266 TFEU, to re-list the applicant, following the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43). Secondly, the Court held that the applicant’s right to be heard had been observed, given that the Council had afforded it the possibility, in good time, to submit observations on the decision intended to re-list it and on the grounds justifying that re-listing. Thirdly, the Court held that the Council had not made an error of assessment in finding that the applicant met the conditions for designation on the ground that it was providing direct financial support to the Iranian Government and was providing support for the Islamic Republic of Iran’s nuclear proliferation activities through involvement in the procurement of prohibited goods and technology.
56 As regards the new measures including the applicant’s name in the list of designated persons and entities, it should be recalled that, by judgment of 29 November 2018, Bank Tejarat v Council (C‑248/17 P, EU:C:2018:967), the Court of Justice upheld the judgment of 14 March 2017, Bank Tejarat v Council (T‑346/15, not published, EU:T:2017:164), which is why the applicant no longer claims, as is apparent from its reply at the hearing and its pleadings of 2 January 2019, damages for the period after 7 April 2015.
57 As regards the initial listing acts of January 2012, held unlawful in the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), first, it must be recalled that, in accordance with the case-law, provisions which set forth exhaustively the conditions in which restrictive measures may be adopted are intended essentially to protect the individual interests of the persons and entities likely to be concerned, by limiting the cases in which such measures may lawfully be applied to them (see, by analogy, judgments of 23 November 2011, Sison v Council, T‑341/07, EU:T:2011:687, paragraph 51 and the case-law cited, and of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 57).
58 Those provisions thus ensure that the individual interests of the persons and entities liable to be concerned by restrictive measures are protected and are, therefore, to be considered to be rules of law intended to confer rights on individuals. If the substantive conditions in question are not satisfied, the person or the entity concerned is entitled not to have restrictive measures imposed on it. Such a right necessarily implies that the person or the entity on which restrictive measures are imposed in circumstances not provided for by the provisions in question may seek compensation for the harmful consequences of those measures, if it should prove that their imposition was founded on a sufficiently serious breach of the substantive rules applied by the Council (see, by analogy, judgments of 23 November 2011, Sison v Council, T‑341/07, EU:T:2011:687, paragraph 52 and the case-law cited, and of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 58).
59 Secondly, as to whether the Council enjoyed any discretion, it is apparent from the case-law that the Council’s obligation to substantiate the restrictive measures adopted arises from the requirement to observe the fundamental rights of the persons and entities concerned, and in particular their right to effective judicial protection, which implies that the Council does not enjoy any discretion in that regard (judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 60).
60 As regards the determination of the Council’s obligations towards the applicant in the light of the case-law in force when the acts at issue were adopted, it must be recalled, as the Court of Justice had already stated in case-law predating the adoption of those acts, that the European Union is based on the rule of law and the acts of its institutions are subject to review by the Court of their compatibility with EU law and, in particular, with the FEU Treaty and the general principles of law (see judgment of 29 June 2010, E and F, C‑550/09, EU:C:2010:382, paragraph 44 and the case-law cited), and natural and legal persons must enjoy effective judicial protection (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 35).
61 With regard to respect for the principle of effective judicial protection, the Court of Justice held in paragraph 343 of the judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461), that restrictive measures adopted in respect of natural or legal persons do not escape all review by the EU judicature, including where it has been claimed that the act laying them down concerns national security and terrorism (see, to that effect, judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 36).
62 As is evident from that case-law, the right to effective judicial protection requires the Council to provide, in the event of a challenge, information or evidence substantiating the reasons for the adoption of restrictive measures against natural or legal persons. In that regard, it is apparent from paragraph 336 of the judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461) that it must be possible for the judicial review of restrictive measures adopted in respect of natural or legal persons to apply, in particular, to the lawfulness of the grounds on which the decision imposing a set of restrictive measures on a person or on an entity is based (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 37).
63 Similarly, in paragraph 57 of the judgment of 29 June 2010, E and F (C‑550/09, EU:C:2010:382), the Court of Justice considered that an adequate review by the courts of the substantive legality of individual restrictive measures had to cover, in particular, verification of the facts and of the evidence and information relied upon in order to adopt those measures (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 38).
64 Furthermore, although the cases giving rise to those judgments concerned asset-freezing measures adopted in the specific context of the fight against international terrorism, it is clear that the obligation to establish that restrictive measures targeting individual persons and entities are well founded, which is derived from that case-law, applies equally with regard to the adoption of asset-freezing restrictive measures aimed at applying pressure on the Islamic Republic of Iran, such as those covering the applicant, given, in particular, the individual nature of those restrictive measures and the considerable impact they are likely to have on the rights and freedoms of the persons and entities subject to them (see, to that effect, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 361 and 375).
65 In those circumstances, it must be held that the obligation on the Council to provide, in the event of a challenge, information or evidence substantiating the reasons for the adoption of restrictive measures against a natural or legal person was already apparent, at the time when the provisions at issue were adopted, from well-established case-law of the Court of Justice (see, to that effect, judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 40).
66 However, while in the case giving rise to the judgment of 25 November 2014, Safa Nicu Sepahan v Council (T‑384/11, EU:T:2014:986, paragraph 59), the General Court found that the Council had committed an infringement although it did not enjoy any discretion, this was due to the fact, as the Court of Justice held in the judgment of 30 May 2017, Safa Nicu Sepahan v Council (C‑45/15 P, EU:C:2017:402, paragraph 33), that it did not have information or evidence to substantiate the reasons for the adoption of restrictive measures against the applicant.
67 As the Council contends, the situation in the present case is different. In the cases giving rise to the judgments of 23 November 2011, Sison v Council (T‑341/07, EU:T:2011:687), and of 25 November 2014, Safa Nicu Sepahan v Council (T‑384/11, EU:T:2014:986), none of the parties to those proceedings had been re-included in the lists of designated persons and entities following those judgments concluding that the Council had made an error of assessment in including them on those lists. Consequently, since Safa Nicu Sepahan and Mr Jose Maria Sison could not be shown to be covered by the listing criteria, they were entitled not to have restrictive measures imposed on them.
68 In that regard, it is apparent from the wording of the judgment of 14 March 2017, Bank Tejarat v Council (T‑346/15, not published, EU:T:2017:164), that the applicant did indeed satisfy the relevant designation criteria when the listing acts were adopted.
69 The applicant’s initial listing was based on the support it provided for nuclear proliferation, a listing criterion provided for in Article 20(1)(b) of Decision 2010/413 and Article 23(2)(a) of Regulation No 267/2012. The re-listing decision is also founded on that legal basis and on two separate grounds: one relating to the provision of support by the applicant to the Iranian Government and the other relating to the applicant’s involvement in the procurement of prohibited goods and technology.
70 In the context of the re-listing, the Council supplied several documents in support of the matters in that statement of reasons, which also show the applicant’s involvement in proliferation before and during its initial listing.
71 In that regard, the Council produced an article taken from the website of an Iranian press agency, from March 2011, in which the director of Petroleum Engineering and Development Company (PEDEC) announced the forthcoming signing of a contract for the development of the Darkhovin (Iran) oilfield, aimed at eventually raising crude oil production capacity to 260 000 barrels per day, and stated that the applicant would provide financial resources for the project. In addition, an article published at the same time by the same agency announced the issuing of bonds by Pars Oil and Gas Company, which would be offered, inter alia, by the applicant from March 2011 and which would be used to fund oil industry projects.
72 It follows from this that, at the time when the initial listing acts were adopted in January 2012, the applicant, through its financing of development projects in the oil sector, was involved in the procurement of prohibited goods and technology, which constituted a form of support to the Islamic Republic of Iran’s nuclear-proliferation activities.
73 Consequently, the activities carried out by the applicant when the initial acts including it in the list of designated persons and entities were adopted, in January 2012, fell within the designation criterion relating to the provision of support for the Islamic Republic of Iran’s nuclear-proliferation activities through the involvement in procurement of prohibited goods, in terms of Article 20(1)(b) of Decision 2010/413 and Article 16(2)(a) of Regulation No 961/2010 (now Article 23(2)(a) of Regulation No 267/2012). Although the specific contentions set out in the initial statement of reasons were different from the facts mentioned in the statement of reasons of the subsequent re-listing acts of April 2015, the initial listing decision was, nonetheless, based on the same criterion, namely the support provided for the Islamic Republic of Iran’s nuclear-proliferation activities.
74 In other words, if the Council had adduced the evidence mentioned in paragraph 71 above, that would have been sufficient to prove that the applicant provided support for nuclear proliferation by the Islamic Republic of Iran.
75 In that regard, it must be found that the Council did not indeed produce the evidence in the context of the action for annulment of the initial listing acts of January 2012. However, it is settled case-law that the institution the conduct of which is at issue as regards giving rise to non-contractual liability on the part of the European Union is, in principle, entitled to rely, by way of defence, on all relevant facts and matters occurring before the action for damages was brought, just as the applicant is entitled to rely on evidence post-dating the occurrence of damage in order to prove the scope and extent of such damage, and that the justification for that possibility for the institution is particularly clear in an area of EU activity such as the CFSP (judgment of 13 December 2017, HTTS v Council, T‑692/15, under appeal, EU:T:2017:890, paragraphs 49 and 50).
76 Thus, in the present action for damages, the Court cannot overlook the relevant reasons and the evidence which the Council has put forward by way of defence, with a view to demonstrating that the requirement which must be met in order for non-contractual liability to arise on the part of the European Union was not satisfied.
77 It follows from the foregoing that the infringement found as regards the initial listing acts does not does not amount to a sufficiently serious breach in order to give rise to non-contractual liability on the part of the European Union.
78 The action must, therefore, be dismissed in its entirety, without there being any need to examine whether the other conditions for establishing the European Union’s non-contractual liability have been met, or to examine the applicant’s application for a measure of organisation of procedure consisting in the appointment of an expert in order to carry out an accounting valuation of the damage alleged.
Costs
79 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
80 In addition, under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs.
81 Since the Council has applied for costs and the applicant has been unsuccessful, the applicant must be ordered to bear its own costs and to pay those incurred by the Council. The Commission must bear its own costs.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders Bank Tejarat to bear its own costs and to pay those incurred by the Council of the European Union;
3. Orders the European Commission to bear its own costs.
Delivered in open court in Luxembourg on 16 May 2019.