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 — Actions for annulment — Infra-State body — Locus standi and interest in bringing proceedings — Admissibility — Right to be heard — Obligation to notify — Obligation to state reasons — Rights of the defence — Manifest error of assessment — Right to property)
In Joined Cases T‑156/13 and T‑373/14,
Petro Suisse Intertrade Co. SA, established in Pully (Switzerland), represented by J. Grayston, Solicitor, P. Gjørtler, G. Pandey, D. Rovetta, N. Pilkington and D. Sellers, lawyers,
applicant,
v
Council of the European Union, represented by M. Bishop and I. Rodios, acting as Agents,
defendant,
APPLICATION for annulment, first, of Council Decision 2012/829/CFSP of 21 December 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 356, p. 71) and also of Council Implementing Regulation (EU) No 1264/2012 of 21 December 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 356, p. 55), and, secondly, of the Council’s decision contained in its letter of 14 March 2014 to maintain the restrictive measures taken against the applicant,
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, Petro Suisse Intertrade Co. SA, is a company established in Pully (Switzerland) which is active in the gas and oil sectors.
2 These joined cases have 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 Article 20(1)(b) of Decision 2010/413 provides, inter alia, for the freezing of the funds belonging to persons and entities ‘that have assisted designated persons or entities in evading or violating the provisions of UNSCR 1737 (2006), UNSCR 1747 (2007), UNSCR 1803 (2008) and UNSCR 1929 (2010) or this Decision’.
7 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.
8 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.’
9 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 20(1)(b) and (c) of Decision 2010/413, as amended, Article 23(2) of Regulation No 267/2012 provides for the freezing of funds belonging, in particular, to the persons, entities and bodies whose names are listed in Annex IX and who have been identified as:
‘(b) being a natural or legal person, entity or body that has assisted a listed person, entity or body to evade or violate the provisions of this Regulation, Council Decision 2010/413/CFSP or UNSCR 1737 (2006), UNSCR 1747 (2007), UNSCR 1803 (2008) and UNSCR 1929 (2010);
…
(d) being other persons, entities or bodies that provide support, such as material, logistical or financial support, to the Government of Iran, and persons and entities associated with them …’.
10 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.
11 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.’
12 Article 2 of Decision 2012/635 placed in Annex II to Decision 2010/413 the name of the National Iranian Oil Company (‘NIOC’), on the ground that that entity, owned and operated by the Iranian State, provided financial resources to the Iranian Government.
13 Consequently, on the same date, 15 October 2012, 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 name in Annex IX to Regulation No 267/2012 for the same reasons as those stated in Decision 2012/635.
14 On 21 December 2012, the Council adopted Decision 2012/829/CFSP amending Decision 2010/413 (OJ 2012 L 356, p. 71). Article 1 of that decision placed the applicant’s name in Annex II to Decision 2010/413.
15 On 21 December 2012, the Council also adopted Regulation (EU) No 1263/2012 amending Regulation No 267/2012 (OJ 2012 L 356, p. 34). Article 1(11) of Regulation No 1263/2012 amended Article 23(2)(d) of Regulation No 267/2012, thus providing for the freezing of the funds of the persons, entities and bodies listed in Annex IX thereto that had 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 entities owned or controlled by them, or persons and entities associated with them …’
16 In accordance with Decision 2012/829, Council Implementing Regulation (EU) No 1264/2012 of 21 December 2012 implementing Regulation No 267/2012 (OJ 2012 L 356, p. 55; together with Decision 2012/829, ‘the contested measures’) amended Annex IX to Regulation No 267/2012, adding, in particular, the applicant’s name.
17 In the contested measures, the Council stated that the applicant’s funds and economic resources were frozen for the following reasons:
‘[The applicant] is assisting designated entities to violate the provisions of the EU regulation on Iran and is providing financial support to the Government of Iran. It is a front company controlled by EU-designated NIOC. NIOC set up [the applicant] as a company and would use [the applicant’s] accounts to make and receive payments. [The applicant] continued to be in contact with NIOC in 2012.’
18 The Council published a notice for the attention of the persons and entities to which the restrictive measures adopted in the contested measures applied, in the Official Journal of the European Union of 22 December 2012 (OJ 2012 C 398, p. 8).
19 By registered letter with acknowledgement of receipt, dated 3 January 2013, the Council also communicated the contested measures to the applicant.
20 By letter of 19 February 2013, the applicant, first, asked the Council to confirm that it was covered by the contested measures and, if that was the case, informed the Council that it disputed its designation. Secondly, the applicant stated that the letter of 3 January 2013 provided no information that would justify the inclusion of its name in the lists in question. Thirdly, the applicant requested the Council to provide it with access to the evidence justifying its inclusion and any written exchange within the Council or between the Council and the other EU institutions or bodies, Member States and their authorities and also third countries and their authorities concerning the grounds for its designation.
21 On 20 February 2013, the Council acknowledged receipt of the applicant’s letter and stated that the letter was under examination.
22 By letters of 14 May 2013, the applicant requested the Council to remove its name from the lists in Annex II to Decision 2010/413 and Annex IX to Regulation No 267/2012 (‘the lists at issue’), claiming that the grounds for the inclusion of its name in those lists were not sufficient and not substantiated by any evidence, and also reiterated its request for access to the documents referred to in paragraph 20 above.
23 By letter of 10 June 2013, in reply to the applicant’s letter of 19 February 2013, the Council communicated to the applicant the documents relating to its designation.
24 By letter of 2 October 2013, the applicant submitted to the Council its observations on the letter of 10 June 2013. It claimed that the documents disclosed by that letter provided no evidence to justify its designation and therefore asked the Council to remove its name from the lists at issue.
25 By letter of 14 March 2014, received by the applicant on 18 March 2014, the Council replied to the applicant’s observations set out in its letters of 14 May and 2 October 2013 and informed the applicant that it had decided to maintain its name on the lists at issue (‘the decision maintaining the applicant’s designation’).
26 By letter of 14 April 2014, the applicant replied to the Council’s letter of 14 March 2014. It claimed that the Council had infringed its rights of defence when it adopted the decision maintaining the applicant’s designation, and that the decision was unfounded.
Procedure and forms of order sought
27 By application lodged at the Court Registry on 14 March 2013, the applicant brought the action in Case T‑156/13.
28 By order of the President of the Fourth Chamber of the General Court of 3 September 2013, the proceedings in Case T‑156/13 were stayed until delivery of the judgment of 16 July 2014 in National Iranian Oil Company v Council (T‑578/12, EU:T:2014:678).
29 By a fresh application lodged at the Court Registry on 26 May 2014, the applicant brought the action in Case T‑373/14.
30 The judgment in National Iranian Oil Company v Council, cited in paragraph 28 above (EU:T:2014:678), was delivered on 16 July 2014 and the proceedings in Case T‑156/13 were resumed. The Court requested the parties to communicate their views on the inferences to be drawn from that judgment for the action in Case T‑156/13. The parties complied with that request within the prescribed period.
31 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 cases were accordingly allocated.
32 The applicant claims that the Court should:
– in Case T‑156/13:
– annul the contested measures, in so far as they concern the applicant;
– order the Council to pay the costs;
– in Case T‑373/14:
– annul the Council’s decision contained in the letter of 14 March 2014, in so far as it constitutes a refusal to remove the applicant’s name from the lists of persons and entities subject to restrictive measures;
– order the Council to pay the costs.
33 The Council contends that the Court should:
– in Case T‑156/13:
– dismiss the action as inadmissible or, in the alternative, as unfounded;
– order the applicant to pay the costs;
– in Case T‑373/14:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
34 On application by the applicant and after the Council had been heard, Cases T‑156/13 and T‑373/14 were joined for the purposes of the oral procedure and of the judgment, in accordance with Article 68(1) of the Rules of Procedure of the General Court.
Admissibility in Case T‑156/13
35 The Council disputes the applicant’s locus standi and its compliance with the time-limit allowed for bringing the action.
Locus standi
36 The Council submits that the applicant must be regarded as a governmental organisation for the purposes of Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), signed in Rome on 4 November 1950, and that it therefore cannot invoke the protections and guarantees linked with fundamental rights before the Courts of the European Union.
37 According to the Council, that plea of inadmissibility applies to all the pleas in law relied on, because the aim of the action is really to obtain the annulment of the freezing of funds, which is an interference — albeit justified — in the right to property. It is therefore immaterial that not all the pleas in law specifically refer to that right.
38 It should be recalled that, in its judgments of 29 January 2013 in Bank Mellat v Council (T‑496/10, ECR, under appeal, EU:T:2013:39, paragraphs 35 to 46), and 5 February 2013 in Bank Saderat Iran v Council (T‑494/10, ECR, under appeal, EU:T:2013:59, paragraphs 33 to 44), the Court has already had the opportunity to reject a similar plea of inadmissibility, raised by the Council and supported by the Commission, relating to the pleas put forward by the applicants in the two judgments in question alleging infringement of fundamental rights, the Council and the Commission claiming that those applicants were emanations of the Iranian State.
39 Moreover, in its judgment of 28 November 2013 in Council v Manufacturing Support & Procurement Kala Naft (C‑348/12 P, ECR, EU:C:2013:776, paragraphs 50 and 51), the Court of Justice rejected the inadmissibility arguments raised by the Council and the Commission according to which, as an emanation of the Iranian State, the applicant in the case in question, Manufacturing Support & Procurement Kala Naft Co., did not enjoy protection of fundamental rights. The Court thus confirmed, in essence, that an entity which was an emanation of a non-Member State was entitled, by invoking, where applicable, fundamental rights guarantees, to bring an action for annulment of the restrictive measures adopted against it.
40 In the present case, it should be noted that, unlike its line of argument before the General Court in the cases giving rise to the judgments of 25 April 2012 in Manufacturing Support & Procurement Kala Naft v Council (T‑509/10, ECR, EU:T:2012:201), Bank Mellat v Council, cited in paragraph 38 above (EU:T:2013:39), and Bank Saderat Iran v Council, cited in paragraph 38 above (EU:T:2013:59), in which it did not plead that the action as a whole was inadmissible, the Council is not merely challenging ‘[w]hether it is open to the applicant to rely on fundamental rights protection and guarantees’. The Council expressly contends that the action is inadmissible in its entirety.
41 The line of argument put forward by the Council in support of that plea of inadmissibility cannot be accepted.
42 It must be observed that this action falls within the scope of the second paragraph of Article 275 TFEU, in conjunction with the fourth paragraph of Article 263 TFEU, inasmuch as it seeks the annulment of Decision 2012/829 which was adopted on the basis of Article 29 TEU. The second paragraph of Article 275 TFEU expressly provides that decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the EU Treaty are subject to review of legality in accordance with the conditions laid down in the fourth paragraph of Article 263 TFEU.
43 The fourth paragraph of Article 263 TFEU confers on any natural or legal person locus standi to institute proceedings against acts of the EU institutions, provided that the conditions laid down in that provision are met, which is the case here and indeed is not disputed. The applicant therefore has locus standi and an interest in bringing legal proceedings against the contested measures in so far as they include it in the lists in question (see, to that effect, judgment in Manufacturing Support & Procurement Kala Naft v Council, cited in paragraph 40 above, EU:T:2012:201, paragraph 50). In that regard, it must be recalled that the individual nature of the restrictive measures adopted against a person permits access, in accordance with the second paragraph of Article 275 TFEU and the fourth paragraph of Article 263 TFEU, to the Courts of the European Union (see, to that effect, judgment of 23 April 2013 in Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, ECR, EU:C:2013:258, paragraph 58). Accordingly, in so far as neither the two abovementioned articles nor any other provision of EU primary law excludes non-Member States from that right of action, a legal person which is an emanation of a non-Member State cannot be deprived of the right to bring an action against a fund-freezing measure adopted against it in order to obtain review of the legality of that measure. Such an approach would infringe Article 263 TFEU and the second paragraph of Article 275 TFEU and would therefore be contrary to the system of judicial protection established in the FEU Treaty, and to the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (see, to that effect, Opinion of Advocate General Bot in Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, ECR, EU:C:2013:470, point 64).
44 Accordingly, without there being any need to determine whether or not the applicant must be regarded as an emanation of the Iranian State or a governmental organisation, the plea of inadmissibility in relation to the applicant’s locus standi must be rejected.
Whether the action is out of time
45 The Council maintains that the action in Case T‑156/13, brought on 14 March 2013, is out of time. It relies on the case-law in Gbagbo and Others v Council, cited in paragraph 43 above (EU:C:2013:258), and maintains that the period of two months within which an action might be brought against the contested measures began to run on the date on which the notice was published in the Official Journal of the European Union, on 22 December 2012, and that in those circumstances the period of 14 days provided for in Article 59 of the Rules of Procedure does not apply. In the Council’s submission, the period allowed for bringing an action, extended on account of distance by a single period of 10 days as provided for in Article 60 of the Rules of Procedure, therefore expired on 4 March 2013.
46 As regards the starting point of the period allowed for bringing proceedings, it must be borne in mind that, under the sixth paragraph of Article 263 TFEU, an action for annulment must be brought within two months of the publication of the contested measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.
47 Furthermore, according to the case-law, the principle of effective judicial protection means that the EU authority which adopts restrictive measures against a person or entity is bound to communicate the grounds on which those measures are based, either when those measures are adopted or, at the very least, as swiftly as possible after their adoption, in order to enable those persons or entities to exercise their right to bring an action (see, to that effect, judgment of 16 November 2011 in Bank Melli Iran v Council, C‑548/09 P, ECR, EU:C:2011:735, paragraph 47 and the case-law cited).
48 In the present case, that principle is given specific effect by Article 24(3) of Decision 2010/413 and Article 46(3) of Regulation No 267/2012, which provide that the Council is to communicate its decision, including the grounds for the inclusion of their name in the list of persons and entities covered by the restrictive measures, to the person or entity concerned, either directly, if the address is known, or through the publication of a notice, providing such person or entity with an opportunity to present observations.
49 It follows that the period for bringing an action for annulment of an act imposing restrictive measures on a person or entity only begins to run either from the date of the individual communication of that act to the party concerned, if his address is known, or from the date of publication of a notice in the Official Journal of the European Union, if it was impossible to communicate that act directly to the party concerned (see, to that effect, judgment in Gbagbo and Others v Council, cited in paragraph 43 above, EU:C:2013:258, paragraphs 59 to 62).
50 In that regard, it must be observed that the Council is not free arbitrarily to choose the means of communication of its decisions to the persons concerned. It is clear from paragraph 61 of the judgment in Gbagbo and Others v Council, cited in paragraph 43 above (EU:C:2013:258), that the Court of Justice intended that indirect communication of contested measures by means of the publication of a notice in the Official Journal of the European Union should be permissible solely in cases where it is impossible for the Council to communicate them individually.
51 In the present case, the Council was aware of the applicant’s address and notified the contested measures to it by registered letter, with acknowledgement of receipt, of 3 January 2013. Consequently, the period for bringing an action for annulment of those measures began to run on the date of their individual communication to the applicant. It must be noted that the acknowledgement of receipt produced by the Council itself in the annex to its defence is dated 7 January 2013. In the applicant’s case, the period for bringing an action against the contested measures in Case T‑156/13 therefore began to run on that date and, taking into account the extension on account of distance of 10 days provided for by Article 60 of the Rules of Procedure, expired on 17 March 2013.
52 In any event, even if the period for bringing an action began to run on the date of publication of the notice in the Official Journal of the European Union, the Council is wrong to maintain that Article 59 of the Rules of Procedure does not apply in those circumstances. It is clear both from the wording and purpose of that provision that the extension of that period, by 14 days, as provided for therein, applies to all measures communicated by means of their publication in the Official Journal of the European Union, including measures of individual scope communicated to the persons concerned by means of the publication of a notice in the Official Journal of the European Union (see, to that effect, judgment of 3 July 2014 in Zanjani v Council, T‑155/13, EU:T:2014:605, paragraphs 39 to 45). Accordingly, in this instance, the Council published a notice concerning the entry of the applicant’s name on the lists at issue in the Official Journal of the European Union of 22 December 2012, and the period for bringing an action would thus have expired on 18 March 2013.
53 Since the application was lodged on 14 March 2013, it must be held that the action was brought within the legal time-limit, and, therefore, the plea of inadmissibility raised by the Council must be rejected.
54 In the light of all the foregoing considerations, the action must be declared admissible.
Substance
55 In support of its action in Case T‑156/13, the applicant puts forward six pleas in law, alleging, respectively, infringement of the right to a hearing, infringement of the obligation to effect proper notification, infringement of the obligation to state reasons, infringement of the rights of the defence, a manifest error of assessment, and infringement of the right to property.
56 In Case T‑373/14, the applicant alleges infringement of the obligation to state reasons and a manifest error of assessment, thus relying, in essence, on the third and fifth pleas referred to in paragraph 55 above.
57 Given that the two actions are identical, the Court considers that the pleas in each of the two joined cases dealing with the same issues should be grouped together, and that the first, second and fourth pleas in Case T‑156/13, alleging, in essence, infringement of the rights of the defence, should be examined together.
Pleas alleging infringement of the obligation to state reasons
58 The applicant maintains that the reasons given in the contested measures and those mentioned in the Council’s letter of 14 March 2014 are individually and collectively insufficient and that they are not supported by the slightest evidence.
59 It submits, moreover, that the Council was under an obligation to provide more detailed reasons since, first, the applicant is not involved in any way with terrorist activities, but operates openly and transparently under Swiss law, and, secondly, the restrictive measures adopted against it are unilateral sanctions, in that they were not agreed within the Security Council.
60 The Council disputes the applicant’s arguments and contends that the reasons stated in the contested measures enabled the applicant to understand the scope of the measures adopted against it.
61 As a preliminary point, it must be borne in mind 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 of 15 November 2012 in Council v Bamba, C‑417/11 P, ECR, EU:C:2012:718, paragraph 60).
62 Accordingly, in this instance, the question whether the statement of reasons for the contested measures is supported by evidence is relevant only in the context of the pleas alleging an error of assessment. It is not, however, relevant in the context of the present pleas.
63 The first point to be borne in mind is that, according to settled 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 in Council v Bamba, cited in paragraph 61 above, EU:C:2012:718, paragraph 49 and the case-law cited).
64 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 61 above, EU:C:2012:718, paragraph 50).
65 As regards restrictive measures adopted under the common foreign and security policy, it must be pointed out that, if 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, especially after the adoption of that decision, to make effective use of the legal remedies available to him to challenge the lawfulness of that decision (judgments in Council v Bamba, cited in paragraph 61 above, EU:C:2012:718, paragraph 51, and 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).
66 Consequently, the statement of reasons for a Council act imposing a restrictive measure must identify not only the legal basis of that measure, but also the actual and specific reasons why the Council considers, in the exercise of its discretion, that such a measure must be adopted in respect of the party concerned (see, to that effect, judgments in Council v Bamba, cited in paragraph 61 above, EU:C:2012:718, paragraph 52; OMPI I, cited in paragraph 65 above, EU:T:2006:384, paragraph 146; and judgment of 14 October 2009 in Bank Melli Iran v Council, T‑390/08, EU:T:2009:401, paragraph 83).
67 The statement of reasons must, however, be appropriate to the measure 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 circumstances known to that person which enable him to understand the scope of the measure concerning him (judgments in Council v Bamba, cited in paragraph 61 above, EU:C:2012:718, paragraphs 53 and 54; OMPI I, cited in paragraph 65 above, EU:T:2006:384, paragraph 141; and Bank Melli Iran v Council, cited in paragraph 66 above, EU:T:2009:401, paragraph 82).
68 In the present case, it is necessary to examine, in the light of the case-law recalled above, whether the Council gave sufficient reasons for the decision to enter and to maintain the applicant’s name on the lists.
69 In the first place, the Court considers that the obligation to state reasons applies in the same way irrespective of the entity concerned by a decision to freeze funds or the origin of that decision, and that the applicant’s argument that the Council was under a greater obligation to state reasons when it decided to enter the applicant’s name on the lists at issue must therefore be rejected.
70 First, it should be pointed out that the principles that emerge from the case-law set out in paragraphs 63 to 67 above, 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.
71 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 70 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 66 and 67 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.
72 In the second place, the statement of reasons for the contested measures gives the following grounds:
– the applicant ‘is assisting designated entities to violate the provisions of the EU regulation on Iran’;
– the applicant ‘is providing financial support to the Government of Iran’;
– the applicant ‘is a front company controlled by … NIOC. NIOC set up [the applicant] as a company and would use [the applicant’s] accounts to make and receive payments’;
– the applicant ‘continued to be in contact with NIOC in 2012’.
73 First, it must be held that the third ground, according to which the applicant is a front company set up and controlled by NIOC, enabled the reasons why the Council decided to enter the applicant’s name on the lists at issue to be understood.
74 It will be recalled, first of all, that Article 20(1)(c) of Decision 2010/413, as amended, the terms of which are specified in Article 23(2)(d) of Regulation No 267/2012, lays down a substantive criterion allowing the Council to freeze the funds of entities that provide support to the Government of Iran, but also includes a criterion of ownership or control, on the basis of which the Council can adopt restrictive measures against entities owned or controlled by an entity providing such support to the Government of Iran.
75 Consequently, in stating that the applicant is a front company set up and controlled by NIOC, which was designated under the restrictive measures at issue on the ground that it provided financial support to the Government of Iran, the statement of reasons for the contested measures enabled the applicant to understand that the restrictive measures were adopted against it on account of the capital links that existed between the applicant and NIOC, in accordance with the provisions referred to above.
76 Next, it is necessary to take into account the context in which the contested measures were adopted, in accordance with the case-law mentioned in paragraph 67 above, and, in particular in this instance, the entry on the lists at issue of the name of NIOC, which provides financial resources to the Iranian Government, and the entry of the names of numerous subsidiaries of that entity, on the ground that they are owned and controlled by an entity itself providing support to the Iranian Government. Given that context, which was known to the applicant, the applicant was accordingly in a position to identify the legal basis and specific reasons for the restrictive measures adopted against it.
77 Lastly, it must be pointed out that, contrary to what is claimed by the applicant, for the purpose of satisfying its obligation to state reasons with respect to the criterion of ownership or control mentioned above, the Council was not obliged to explain how the applicant’s activities or the payments the applicant made or received constituted support to the Iranian Government or contributed to nuclear proliferation in Iran. That criterion of ownership or control on the basis of which the applicant’s name was included in the lists at issue is distinct from the substantive criteria provided for by Decision 2010/413 and Regulation No 267/2012, such as the criteria relating to the provision of support to Iran’s nuclear activities or to the Government of Iran.
78 Secondly, as regards the use of the expression ‘front company’ and the other grounds mentioned in paragraph 72 above, according to which the applicant ‘is assisting designated entities to violate the provisions of the EU regulation on Iran and is providing financial support to the Government of Iran [and] continued to be in contact with NIOC’, these might, admittedly, suggest that the allegations against the applicant go beyond mere ownership by NIOC, although no further explanation is given in the statement of reasons in that regard. However, the Council clearly explained at the hearing that the only reason for entering the applicant’s name on the lists at issue was the fact that the applicant was owned and controlled by NIOC, and that the other grounds set out in the contested measures were linked to that ownership and control or were a consequence thereof. The Council stated that the applicant was set up by NIOC in order to avoid the sanctions to which it was subject and that the applicant was therefore contributing to the financial support provided by its parent company to the Government of Iran.
79 The Court thus notes that the other grounds stated in the contested measures refer to the ratio legis of the criterion which requires that the funds of entities owned or controlled by an entity identified as providing support to the Government of Iran be frozen. That criterion is justified by the not insignificant danger that the entity in question 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 (see, to that effect, judgment of 13 March 2012 in Melli Bank v Council, C‑380/09 P, ECR, EU:C:2012:137, paragraph 58). Therefore, the other grounds in the contested measures cannot be read in isolation in so far as they merely clarify why, as an entity owned and controlled by NIOC, the applicant must be made subject to restrictive measures.
80 In any event, even if there were other reasons for freezing the applicant’s funds, it must be noted that if, at the very least, one of the reasons mentioned in the contested measures is sufficiently detailed and specific, is substantiated and constitutes in itself sufficient basis to support those measures, the fact that the same cannot be said of other such reasons cannot justify the annulment of those measures (see, to that effect, judgment in Kadi II, cited in paragraph 70 above, EU:C:2013:518, paragraph 130). Consequently, in the present case, since the reason to the effect that the applicant was set up and controlled by NIOC is sufficient to enable the applicant to understand at the very least one of the reasons for its inclusion in the lists at issue (see paragraph 75 above), any insufficiency in the other reasons cannot result in the annulment of the contested measures for infringement of the obligation to state reasons.
81 Lastly, the Court considers that the circumstances of the present case differ from those of the case giving rise to the judgment of 26 October 2012 in CF Sharp Shipping Agencies v Council (T‑53/12, ECR, EU:T:2012:578), which the applicant invoked in support of its arguments. In the latter case, the Council justified the restrictive measures adopted against the applicant in that case by the fact that that applicant had helped another entity to avoid the effects of the restrictive measures directed at it by making or receiving certain payments, and maintained that the indication that the applicant was a ‘front company’ for that entity enabled the reasons for its inclusion in the lists to be understood. In those circumstances, the Court held that, by stating merely that the applicant was a ‘front company’ for the entity it had allegedly helped, the statement of reasons for the contested measures in the case in question did not enable the allegations against that applicant to be understood, as it did not contain any details of payments received or made by that applicant (judgment in CF Sharp Shipping Agencies v Council, EU:T:2012:578, paragraphs 39 to 44).
82 By contrast, in the present case, the Council justifies the adoption of the restrictive measures with respect to the applicant on the basis of the links of ownership and control that exist between the applicant and NIOC and not on the basis of any alleged assistance provided to that entity. In those circumstances, it can be concluded, without contradicting the Court’s reasoning in CF Sharp Shipping Agencies v Council, cited in paragraph 80 above, (EU:T:2012:578), that the statement that the applicant is a front company set up and controlled by NIOC constitutes a sufficient statement of reasons with respect to the criterion of ownership and control laid down in Article 20(1)(c) of Decision 2010/413, as amended, and in Article 23(2)(d) of Regulation No 267/2012. Even if the notion of ‘front company’ has no specific legal meaning, it nevertheless expresses the idea of ownership and control by a parent company and therefore enabled the specific reasons that led the Council to freeze the applicant’s funds to be understood in this case.
83 In the light of the foregoing, it must therefore be concluded that the reasons given for the contested measures in Case T‑156/13 are sufficient.
84 The same conclusion must be drawn in Case T‑373/14, given that it is apparent from the Council’s letter of 14 March 2014 that the reasons for entering the applicant’s name on the lists at issue were not amended. Contrary to what is maintained by the applicant, it must be observed that that letter does not contain any new reason, but merely recalls that it is because of the control exercised by NIOC over the applicant that the Council concluded that the applicant’s name should appear and continue to be included in the lists at issue so as to prevent any risk of circumvention. In referring to the applicant’s statutes, which attest to NIOC’s control, the Council did not, therefore, in any way supplement its statement of reasons with the addition of new material.
85 It must be pointed out, moreover, that, by its letter of 14 March 2014, the Council was seeking to respond to the comments made by the applicant in its letters of 14 May and 2 October 2013. The explanations thus communicated to the applicant by the Council in relation to the decision to maintain its name on the lists at issue in no way sought to modify or reinforce the grounds for the initial listing, but to respond to the arguments put forward by the applicant in that regard. The Council cannot therefore be criticised for having accordingly reformulated, in its letter of 14 March 2014, the grounds relied on against the applicant or for having provided certain additional information in that respect.
86 In those circumstances, the statement that the applicant was set up and is controlled by NIOC constitutes sufficient reason to enter and accordingly maintain its name on the lists at issue.
87 The pleas alleging infringement of the obligation to state reasons must therefore be rejected as unfounded.
Infringement of the rights of the defence and the right to effective judicial protection
In Case T‑156/13
88 By its first, second and fourth pleas in Case T‑156/13, the applicant alleges that the Council infringed its rights of defence, including its right to effective judicial protection, for three reasons: first, the Council failed to arrange a hearing prior to entering the applicant’s name on the lists at issue; secondly, the Council did not provide the requisite notification of the contested measures; and, thirdly, it did not reply to the applicant’s request for access to documents.
89 Before examining those three complaints, it must be noted, first of all, that the principle of observance of the rights of the defence requires, first, that the entity concerned is informed of the evidence adduced against it to justify the act adversely affecting it. Secondly, that entity must be afforded the opportunity effectively to make known its view on that evidence (see, by analogy, judgment in OMPI I, cited in paragraph 65 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).
90 With regard to an initial measure whereby the funds of an entity are frozen, unless there are overriding considerations pertaining to the security of the European Union or of its Member States or to the conduct of their international relations which preclude it, the evidence adduced against that entity must be communicated either concomitantly with the adoption of the measure concerned or as soon as possible thereafter. 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 65 above, EU:T:2006:384, paragraph 137).
91 Notification 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 65 above, EU:T:2006:384, paragraph 128).
92 Next, the principle of effective judicial protection is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the ECHR and in Article 47 of the Charter of Fundamental Rights. The effectiveness of judicial review means that the EU authority in question is bound to communicate the grounds for a restrictive measure to the entity concerned, so far as possible, either when that measure is adopted, or, at the very least, as swiftly as possible after its adoption, in order to enable the entity concerned to exercise, within the periods prescribed, its right to bring an action. Observance of that obligation to communicate the grounds is necessary both to enable the persons to whom restrictive measures are addressed to defend their rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in their applying to the Courts of the European Union, and to put the latter fully in a position in which they may carry out the review of the lawfulness of the measure in question which is their duty (see, to that effect and by analogy, judgment in Kadi and Al Barakaat International Foundation v Council and Commission, cited in paragraph 90 above, EU:C:2008:461, paragraphs 335 to 337 and the case-law cited).
93 In the light of those principles, the Court must examine whether, in the present case, the applicant’s rights of defence and its right to effective judicial protection have been observed.
– The right to be heard
94 The applicant submits that the Council should have respected its right to a prior hearing in order to enable it to explain its status as a private company. It states, moreover, that it did not hold any funds in accounts within the European Union at the time of its entry on the lists at issue, and that there was thus no need for its funds to be frozen without a prior hearing. In addition, according to the applicant, the Council should have limited the legal effects of that listing to the freezing of its funds, so as to avoid disrupting its contractual relations before it could be heard.
95 The Court notes, first, that it is unequivocally clear from the case-law cited in paragraph 91 above that an initial measure freezing funds and economic resources must, by its very nature, benefit from a surprise effect and cannot therefore give rise to a hearing before its implementation. Accordingly, the applicant cannot reasonably maintain that it should have been granted a prior hearing.
96 Secondly, in view of the preventive nature of restrictive measures, even if the applicant was not holding any funds in accounts within the European Union when the contested measures were adopted, that could not create an obligation on the part of the Council to inform and to hear the applicant before adopting restrictive measures against it. If the applicant’s listing had been delayed and its surprise effect removed by the grant of a prior hearing, nothing would have prevented NIOC from using the applicant to transfer certain funds within the European Union and thus to circumvent the restrictive measures to which it was subject, before the Council had adopted its decision. The applicant is therefore wrong to maintain that there was no need to freeze its funds before it was heard.
97 It must, moreover, be held that requiring the Council to verify, in respect of each person or entity whose funds it intends to freeze, whether that person or entity actually has funds or economic resources within the European Union would constitute an excessive burden which would be liable to affect the effectiveness of the restrictive measures.
98 Thirdly, Decision 2010/413 and Regulation No 267/2012 allow the Council to freeze the funds of certain persons and entities by including their names in the lists in Annexes II and IX, respectively, thereto, but without giving it any power to limit the other effects that such a listing might entail for the persons and entities concerned. Consequently, even if the entry of the applicant’s name on the lists at issue had had legal effects with respect to the applicant — other than the freezing of its funds — that would disrupt its commercial relations, the Council cannot be criticised for having failed to limit those effects before the applicant could be heard.
99 It must therefore be concluded that the Council did not infringe the applicant’s rights of defence as regards its right to be heard.
– The initial disclosure of inculpatory evidence
100 First of all, it will be recalled that the contested measures were communicated to the applicant by letter of 3 January 2013.
101 The applicant notes in that regard that the name stated in the contested measures and in the letter of notification does not correspond to its actual name, and is thus of the view that the notification was not adequate.
102 It must, however, be held that the Council’s error, which consists of having described the applicant as ‘Petro Suisse’ instead of ‘Petro Suisse Intertrade Company SA’, cannot constitute an infringement of the latter’s rights of defence since it did not prevent the applicant from being informed of its inclusion in the lists at issue or from defending its rights by bringing the present action before the Courts of the European Union.
103 It is apparent, moreover, from examination of the pleas relating to the obligation to state reasons (see paragraphs 58 to 87 above) that the reasons given for the contested measures are sufficient in that they enabled the applicant to understand that the restrictive measures were imposed on it as an entity owned and controlled by an entity providing support to the Government of Iran, namely NIOC.
104 Accordingly, the Council did not infringe the applicant’s rights of defence as regards the initial disclosure of inculpatory evidence.
– Access to documents
105 The applicant submits that, by disclosing new evidence to it by letter of 10 June 2013, the Council infringed the applicant’s right to effective judicial protection.
106 Furthermore, it notes that the Council decided to enter its name on the lists at issue on the basis of a proposal from a Member State without any consideration as to whether the evidence justified that listing. It submits that the Council thus introduced a new decision-making procedure that has no legal basis in Article 215 TFEU, the consequence of which is that the applicant is prevented from having access to the evidence on the basis of which the restrictive measures concerning the applicant were adopted, but also from identifying the Member State in which it could commence proceedings in order to assert its rights, notably in order to obtain access to such evidence.
107 First of all, it must be borne in mind that the belated disclosure of a document on which the Council relied in order to adopt or maintain the restrictive measures concerning an entity does not constitute a breach of the rights of the defence that would justify the annulment of the contested acts in question unless it is established that the restrictive measures concerned could not have been lawfully adopted or maintained if the document belatedly disclosed had to be excluded as inculpatory evidence (judgment of 6 September 2013 in Persia International Bank v Council, T‑493/10, ECR (Extracts), EU:T:2013:398, paragraph 85).
108 Consequently, in this instance, even assuming that the Council did belatedly disclose certain material contained in its file, that could justify the annulment of the contested measures only if it were also established that the adoption of the restrictive measures concerning the applicant could not be justified in the light of the material disclosed to the applicant in good time, that is to say, in the light of the grounds stated in the contested measures and disclosed to the applicant by letter of 3 January 2013. The question whether those grounds, concerning the links of ownership and control between NIOC and the applicant, were a sufficient basis for the restrictive measures imposed on the applicant will be examined below in the context of the examination of the pleas relating to an error of assessment (see paragraphs 117 to 130).
109 Next, it should be pointed out that the fact that the applicant was listed on a proposal from a Member State does not alter the fact that the contested measures are acts of the Council which has the power to adopt restrictive measures on the basis of Article 23(2) of Decision 2010/413 and Article 46(2) of Regulation No 267/2012. Furthermore, in a case such as this, the Council was not obliged to follow the procedure laid down in Article 215(1) TFEU in order to adopt individual fund-freezing measures since it could, under Article 291(2) TFEU, confer on itself an implementing power such as that provided for in Article 46(2) of Regulation No 267/2012.
110 Accordingly, subject to establishing whether the grounds set out in the contested measures were sufficient to justify freezing the applicant’s funds, which is covered by the examination of the pleas alleging an error of assessment, it must be concluded that the Council did not infringe the applicant’s rights of defence with regard to access to the documents on which the Council relied in order to adopt restrictive measures against the applicant.
111 In those circumstances, the Court considers that the applicant was able to defend its rights and that the Court was fully in a position to carry out its review of the lawfulness of the contested measures. The applicant’s right to effective judicial protection has not, therefore, been infringed.
112 The Court must therefore reject the first, second and fourth pleas in law in Case T‑156/13, alleging infringement of the rights of the defence and of the right to effective judicial protection, as unfounded.
In Case T‑373/14
113 The applicant invokes, at the stage of the reply in Case T‑373/14, an infringement of the rights of the defence in that the Council should have informed the applicant of the reasons why it proposed to maintain the applicant’s name on the lists at issue, and thus have allowed the applicant to comment on those reasons before, not after, adopting a decision in that respect.
114 It should be noted that under Article 129 of the Rules of Procedure the General Court may, of its own motion, consider whether there exists any absolute bar to proceeding with a case. On that basis, the pleas set out for the first time at the stage of the reply and which are not based on matters of law or of fact which have come to light in the course of the procedure must be declared inadmissible. It is apparent from the combined provisions of Articles 76(d) and 84(1) of the Rules of Procedure that the application must state the subject-matter of the proceedings and contain a summary of the pleas in law relied on, and that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure (see, by analogy, judgment of 20 November 1990 in Hanning v Parliament, T‑37/89, ECR, EU:T:1990:49, paragraph 38).
115 In the present case, the Court notes that, in the application in Case T‑373/14, the applicant did not raise any plea alleging infringement of its rights of defence by the Council in adopting the decision to maintain the applicant’s name on the lists at issue. Accordingly, since the argument put forward by the applicant in that respect in the reply is not based on any new matter that has come to light in the course of the procedure, and that argument cannot be regarded as amplifying a complaint made previously in the application, it must be rejected as being inadmissible because it is out of time.
116 In the light of the foregoing, all the pleas alleging infringement of the rights of the defence must be rejected.
Pleas alleging an error of assessment
117 In the applicant’s view, there is no basis at all for the entry and maintenance of its name on the lists at issue.
118 In the reply in Case T‑156/13, the applicant submits, first of all, that no evidence has been presented to establish that it was providing financial resources to the Government of Iran. Next, it maintains that, even if it were considered to be owned by the Iranian State through NIOC, that would not support the conclusion that the applicant forms part of the Iranian State. Lastly, in the applicant’s view, the Council did not provide any evidence regarding the risk that the applicant had been used by NIOC to make and receive payments.
119 The Council contends that the applicant’s designation is justified in that it is controlled by NIOC and provides a substantial source of revenue for the Iranian Government. According to the Council, the applicant’s argument that it has no activities and does not have any funds within the European Union is not relevant for the purpose of challenging the inclusion of its name in the lists at issue.
120 First of all, it must be observed that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights 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, 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 70 above, EU:C:2013:518, paragraph 119).
121 It is the task of the competent EU 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 70 above, EU:C:2013:518, paragraphs 121 to 123).
122 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 in Melli Bank v Council, cited in paragraph 79 above, EU:C:2012:137, paragraphs 39 and 58).
123 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 the Government of Iran (see, to that effect, judgment in Melli Bank v Council, cited in paragraph 79 above, EU:C:2012:137, paragraphs 40 to 42).
124 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 79 above, EU:C:2012:137, paragraph 79).
125 It follows that the adoption of restrictive measures against an entity wholly owned by an entity considered to be providing support to the Government of Iran 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 (see, to that effect, judgment of 20 February 2013 in Melli Bank v Council, T‑492/10, ECR, EU:T:2013:80, paragraph 57).
126 In the present case, it must be borne in mind that the main reason for the Council’s inclusion of the applicant’s name in the lists at issue is that the applicant was set up and controlled by an entity providing support to the Government of Iran, in this instance, NIOC. The other reasons mentioned in the contested measures are linked to that main reason or are merely a consequence thereof (see paragraphs 78 and 79 above). The applicant does not dispute the fact that it was set up and is wholly owned by NIOC, nor the fact that NIOC is subject to restrictive measures on the ground that it provides financial resources to the Government of Iran.
127 In accordance with the principle derived from the case-law mentioned in paragraph 124 above, it must therefore be concluded that the entry of the applicant’s name on the lists at issue was justified in the light of the criterion laid down in Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012. On the basis of that criterion, the Council was not in fact required to demonstrate that the applicant itself directly provided financial support to the Government of Iran or that there was a risk that it might be used by NIOC to make or receive payments, that risk being presumed in a case such as this.
128 Furthermore, as the Council points out, the fact that the applicant is established in Switzerland and is not, therefore, subject to EU legislation on Iran, is not relevant for the purpose of challenging the restrictive measures taken against it. The Council can decide to freeze funds and economic resources within the territory of the European Union in respect of any entity, regardless of where it is established, provided that it fulfils one of the listing criteria laid down by Decision 2010/413 and Regulation No 267/2012. It must be noted that none of those listing criteria requires the entity whose funds the Council proposes to freeze to be established within the European Union.
129 As regards the justification for the decision maintaining the applicant’s designation, since the applicant does not dispute its ownership or control by NIOC in Case T‑373/14 either, it must be concluded that the entry of its name on the lists at issue remained justified when that decision was adopted.
130 In the light of the foregoing, the pleas alleging an error of assessment must therefore be rejected as unfounded.
Sixth plea in Case T‑156/13, alleging infringement of the right to property
131 The applicant claims that the contested measures restrict its ability to conclude contracts and are contrary to the principle of proportionality.
132 It adds that the breach of procedural requirements and, in particular, of the obligation to provide reasons for the contested measures de jure triggers a breach of its right to property.
133 The Council contends that the fund-freezing measures pursue a legitimate aim, namely to maintain international peace and security, and are proportionate.
134 In the first place, it should be noted that the Council has fulfilled its procedural obligations, in particular by notifying to the applicant the reasons for the entry of its name on the lists at issue (see paragraphs 88 to 116 above). An infringement of the right to property cannot, therefore, in this instance result from a breach of one of those procedural obligations.
135 In the second place, it should be noted that the applicant has not established in what respect the restrictive measures to which it is subject infringed its right to property.
136 First of all, it must be borne in mind that the fund-freezing measures adopted by the Council apply only to funds that are within the territory of the European Union. Since the applicant itself states that it has no funds in accounts within the European Union, the measures taken against it cannot infringe its right to property in so far as it would thereby be deprived of certain funds.
137 Next, the applicant does not provide any explanation as to how the freezing of its funds within the European Union, where it claims to have none, would be capable of restricting its ability to conclude contracts with possible commercial partners. It is apparent from its arguments that the alleged disruption of its commercial relations is more a consequence of the application of Articles 8 and 9 of Regulation No 267/2012, which prohibit the provision to any Iranian entity (even one not included in the lists of persons or entities subject to restrictive measures) of certain goods and services intended for the oil and gas sectors, and of Article 41 of that regulation which prohibits any circumvention of those provisions, rather than of the fund-freezing measures to which the applicant is subject. However, the applicant cannot challenge the lawfulness of Articles 8, 9 or 41 of Regulation No 267/2012 in the context of the present action, since none of those articles constitutes the legal basis of the contested measures.
138 In the third place, in any event, even if the restrictive measures adopted in respect of the applicant restricted its right to property or its right to carry out an economic activity by limiting its ability to conclude contracts, it has been held that, in view of the prime importance of the preservation of international peace and security, interference with the rights referred to above that arises from the listing of entities owned or controlled by an entity providing support to the Iranian Government are necessary and appropriate for the purpose of exerting pressure on that government in order to oblige it to cease its nuclear proliferation activities (see, to that effect, judgment in Melli Bank v Council, cited in paragraph 79 above, EU:C:2012:137, paragraph 61). Consequently, in the present case, such interference cannot be regarded as disproportionate to the ends sought.
139 In those circumstances, the sixth plea in law in Case T‑156/13 must be rejected as unfounded.
140 It follows from all the foregoing considerations that the actions in Joined Cases T‑156/13 and T‑373/14 must be dismissed in their entirety.
Costs
141 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Council.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action;
2. Orders Petro Suisse Intertrade Co. SA to bear its own costs and to pay those incurred by the Council of the European Union.
Van der Woude | Wiszniewska-Białecka | Ulloa Rubio |
Delivered in open court in Luxembourg on 18 September 2015.
[Signatures]