Action brought on 7 January 2011 - Bank Melli Iran v Council

(Case T-7/11)

Language of the case: English

Parties

Applicant: Bank Melli Iran (Tehran, Iran) (represented by: L. Defalque and S. Woog, lawyers)

Defendant: Council of the European Union

Form of order sought

annul paragraph 5, section B, of the annex to Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP¹ and paragraph 5, section B, of the annex to VIII of Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007² and annul the decision contained in the letter of the Council of 28 October 2010;

declare Article 20(1)(b) of Council Decision of 26 July 2010³ and Article 16(2)(a) of Council Regulation (EC) (EU) No 961/2010 illegal and inapplicable to the applicant;

order that the Council pays the applicant's costs of this application.

Pleas in law and main arguments

In support of the action, the applicant relies on the following pleas in law:

First plea in law, alleging the violation of Article 215 (2) and (3) TFUE as wellas Article 40 TEU what constitutes an infringement of an essential procedural requirement since:

the Council CFSP has adopted the restrictive measures without leaving any power of appraisal to the Council;

Decision 2010/413/CFSP on which Regulation No 961/2010 is based, is erroneously based on Article 29 TEU, since it does not define the approach of the Union to a particular matter or a geographical or thematic nature, as required by Article 29 TUE, but fixes precise obligations for the Member States and persons under their jurisdiction;

Regulation No 961/2010 does not contain the necessary provisions on legal safeguards in violation of Article 215 (3) TFEU.

Second plea in law, alleging an error of the European Union legislator in the choice of the legal basis for the challenged decision and regulation, since the sanctions were adopted against the applicant and its affiliates, being legal persons and not State entities not listed by the UNSC. In this regard, the applicant submits that:

although the basis of Article 29 TUE and 215 TFUE are justified when the Union institutions are enforcing the UN Resolution, they are not necessarily justified when administrative measures such as the freezing of funds of legal persons and non State entities are adopted;

the contested acts had to be adopted on the basis of Article 75 TFUE, thus involving the European Parliament in the framework of the co-decision procedure.

Third plea in law, alleging that the contested decision and regulation were adopted in violation of the principles of equality and non-discrimination, since the similar decisions were adopted on another legal basis such as Article 75 TFUE, and thus with a framework containing judicial guarantees adopted by the European Parliament and the Council, which was not the case for the contested acts concerning the applicant.

Fourth plea in law, alleging that the contested acts have been adopted in violation of the applicant's rights of defence and, in particular, its right to have a fair hearing since:

the applicant did not receive any evidence or documents to support the allegations of the Council, since additional allegation made in 2009 to the 2008 decision, and confirmed in 2010, were very vague, unclear, arguably impossible for the applicant to respond to;

the applicant was refused an access to the documentation and the right to be heard;

the sufficient reasoning was not provided in regard to the contested acts, what violates the applicant's right to effective judicial protection.

Fifth plea in law, alleging that the contested acts, for the same reasons as stated regarding the fourth plea in law, constitute the violation of the principles of sound administration and of legitimate expectations.

Sixth plea in law, alleging that the Council failed to communicate its decision including the grounds for listing, in violation of Article 36.3 infringing as well Article 36.4 of the regulation No 961/2010, which provides for the review of the decision when observations are submitted.

Seventh plea in law, alleging a manifest error of interpretation and a misuse of powers in the application of the Council Decision 2010/413/CFSP of 26 July 2010 to the applicant, since the Council gave a wrong interpretation to its Article 20(1)(b) when deciding that the applicant's activities, as described in the contested acts, fulfil the conditions to be considered as the activities that should be sanctioned.

Eighth plea in law, alleging the infringement of the principle of proportionality and of the right of property, since the Council has not taken into account the decision of the United Nations Security Council what should result in inapplicability of Article 20(1)(b) of Council Decision 2010/413/CFSP of 26 July 2010.

____________

¹ - OJ L 281, p. 81

² - OJ L 281, p. 1

³ - Council Decision 2010/413/CFSP: of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, OJ L 195, p. 39