Case T‑493/10

(publication by extracts)

Persia International Bank plc

v

Council of the European Union

(Common foreign and security policy — Restrictive measures against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Obligation to state reasons — Rights of the defence — Right to effective judicial protection — Error of assessment)

Summary — Judgment of the General Court (Fourth Chamber), 6 September 2013

1.      EU law — Principles — Rights of defence — Right to effective judicial protection — Restrictive measures against Iran — Freezing of funds of persons, entities or bodies engaged in or supporting nuclear proliferation — Obligation to disclose incriminating evidence — Scope

(Charter of Fundamental Rights of the European Union, Art. 47; Council Decisions 2010/413/CFSP and 2010/644/CFSP; Council Regulations No 668/2010 and No 961/2010)

2.      European Union — Common foreign and security policy — Restrictive measures against Iran — Freezing of funds of persons, entities or bodies engaged in or supporting nuclear proliferation — Obligation to extend that measure to entities owned or controlled by such an entity — Whether an entity is owned or controlled — Mere shareholding — Not included

(Council Decision 2010/413/CFSP, Art. 20(1)(b); Council Regulations No 423/2007, Art. 7(2)(d), No 961/2010, Art. 16(2), and No 267/2012, Art. 23(2)(a))

1.      The principle of respect for the rights of the defence requires, first, that the entity concerned must be informed of the evidence adduced against it to justify the measure adversely affecting it. Secondly, that person must be afforded the opportunity effectively to make known his view on that evidence.

Therefore, where the Council intends to rely on information submitted by a Member State in order to adopt restrictive measures affecting an entity, it is obliged to ensure, before the adoption of those measures, that the entity concerned can be notified of the information in question in good time so that it is able effectively to make known its point of view. However, 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 acts adopted previously 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.

As regards communication of evidence, according to the principle of respect for the rights of the defence, the Council is not required to disclose information other than that contained in its file.

(see paras 50-56, 84-87)

2.      When the funds of an entity identified as being engaged in nuclear proliferation are frozen, there is a not insignificant danger that that entity may exert pressure on the entities it owns or controls or which belong to it, in order to circumvent the effect of the measures applying to it. Consequently, the freezing of the funds of such entities, as imposed on the Council by Article 7(2)(d) of Regulation No 423/2007, Article 20(1)(b) of Decision 2010/413, Article 16(2) of Regulation No 961/2010 and Article 23(2)(a) of Regulation No 267/2012, is necessary and appropriate in order to ensure the effectiveness of the measures adopted and to ensure that those measures are not circumvented. Likewise, where an entity is wholly owned by an entity regarded as being engaged in nuclear proliferation, according to Article 23(2)(a) of Regulation No 267/2012, the ownership test contained in Article 20(1)(b) of Decision 2010/413 and in Article 16(2)(a) of Regulation No 961/2010 is satisfied.

However, the mere fact that an entity regarded as being engaged in nuclear proliferation holds 60% of the capital of another entity does permit the conclusion that the belonging and ownership test contained in Article 7(2)(d) of Regulation No 423/2007, Article 20(1)(b) of Decision 2010/413, Article 16(2) of Regulation No 961/2010, and Article 23(2)(a) of Regulation No 267/2012 is satisfied. Consequently, the holding of 60% of the capital of an entity by an entity regarded as being engaged in nuclear proliferation does not in itself justify the adoption and maintenance of restrictive measures covering the first entity.

(see paras 103, 104, 118, 119)