JUDGMENT OF THE GENERAL COURT (First Chamber)
4 June 2014 (*)
(Common foreign and security policy — Restrictive measures taken against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Action for annulment — Measures against which no action may be brought — Inadmissibility — Rights of the defence)
In Case T‑67/12,
Sina Bank, established in Tehran (Iran), represented by B. Mettetal and C. Wucher-North, lawyers,
applicant,
v
Council of the European Union, represented by B. Driessen and D. Gicheva, acting as Agents,
defendant,
APPLICATION for annulment, first, of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 319, p. 71), in so far as it maintained, after review, the listing of the applicant’s name 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), as amended by Council Decision 2010/644/CFSP of 25 October 2010 (OJ 2010 L 281, p. 81), and of Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 319, p. 11), in so far as it maintained, after review, the listing of the applicant’s name 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), and, secondly, of Article 16(2) of Regulation No 961/2010 and of Article 19(1)(b) and Article 20(1)(b) of Decision 2010/413, in so far as those provisions concern the applicant,
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, I. Pelikánová (Rapporteur) and E. Buttigieg, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 10 December 2013,
gives the following
Judgment
Background to the dispute
Restrictive measures taken against the Islamic Republic of Iran
1 This 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 (‘nuclear proliferation’).
Restrictive measures directed at the applicant
2 The applicant, Sina Bank, is an Iranian bank, incorporated as a public joint-stock company.
3 On 26 July 2010, the applicant’s name was included on the list 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).
4 Consequently, the applicant’s name was also included on the list in Annex V to Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1). Its inclusion on that list took effect on the date of publication of Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation No 423/2007 (OJ 2010 L 195, p. 25) in the Official Journal of the European Union, namely 27 July 2010, and resulted in the freezing of its funds and economic resources (‘freezing of funds’).
5 The inclusion of the applicant’s name on the abovementioned lists was based on the following grounds:
‘This bank is very closely linked to the interests of “Daftar” (Office of the Supreme Leader [of the Islamic Revolution], with an administration of some 500 collaborators). It contributes in this way to funding the regime’s strategic interests.’
6 By letter of 27 July 2010, the Council of the European Union informed the applicant of the inclusion of its name on the lists in Annex II to Decision 2010/413 and in Annex V to Regulation No 423/2007. A copy of those measures was enclosed with that letter.
7 By letter of 8 September 2010, the applicant commented on its inclusion on those lists and requested the Council to reconsider the situation.
8 After reviewing the applicant’s situation, the Council maintained the applicant’s name on the list in Annex II to Decision 2010/413, as amended by Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L 281, p. 81), with effect from the same date.
9 When Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation No 423/2007 (OJ 2010 L 281, p. 1) was adopted, the applicant’s name was included, for the same reasons as those already stated in paragraph 5 above, on the list in Annex VIII to that regulation, with effect from 27 October 2010.
10 By letter of 28 October 2010, notified to the applicant on 5 December 2010, the Council informed the applicant that, following a review of its situation in the light of the observations contained in its letter of 8 September 2010, it would continue to be subject to restrictive measures.
11 By letters of 6 and 20 December 2010, the applicant disputed the maintenance of the fund-freezing measure taken against it. In order to exercise its rights of defence, it requested access to the file.
12 By application lodged at the Court Registry on 6 January 2011, the applicant brought an action seeking, in essence, annulment of Annex II to Decision 2010/413, as amended by Decision 2010/644, and of Annex VIII to Regulation No 961/2010, in so far as they concerned the applicant. The case was registered at the Court Registry as Case T‑15/11.
13 By letter of 18 July 2011, the applicant again disputed the maintenance of the fund-freezing measure taken against it, annulment of which, moreover, it was seeking in Case T‑15/11.
14 After reviewing the applicant’s situation, the Council maintained the applicant’s name on the lists in Annex II to Decision 2010/413, as amended by Decision 2010/644, and in Annex VIII to Regulation No 961/2010, with effect, respectively, from 1 December 2011, the date of the adoption of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413 (OJ 2011 L 319, p. 71), and from 2 December 2011, the date of the publication in the Official Journal of the European Union of Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11).
15 By letter of 5 December 2011, notified to the applicant on the same date, the Council informed the applicant that it would continue to be subject to restrictive measures. In that letter, the Council stated that, ‘although some 36% of the shares in [the applicant] ha[d] been sold as part of a public offering, the main shareholder [was] still the Mostaz’afan Foundation, which [was] a public body reporting to [the] Supreme Leader’ and that ‘[t]he Council therefore remain[ed] of the opinion that [Sina Bank was] closely linked to the interests of the “Daftar” (Office of the Supreme Leader) and contribute[d] in this way to funding the … regime’s strategic interests’.
16 When 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) was adopted, the applicant’s name was included, for the same reasons as those already stated in paragraph 5 above, on the list in Annex IX to that regulation, with effect from 24 March 2012.
17 By judgment of 11 December 2012 in Case T‑15/11 Sina Bank v Council [2012] ECR, the Court annulled Annex II to Decision 2010/413, as amended by Decision 2010/644, and Annex VIII to Regulation No 961/2010, in so far as they concerned the applicant. However, it ordered that the effects of Annex II to Decision 2010/413, as amended by Decision 2010/644, be maintained in relation to the applicant until such time as the annulment of Annex VIII to Regulation No 961/2010 took effect. As no appeal was lodged against the judgment in Sina Bank v Council, that judgment became final and acquired the force of res judicata.
Procedure and forms of order sought by the parties
18 By application lodged at the Court Registry on 10 February 2012, the applicant brought the present action, which was assigned to the Fourth Chamber of the Court on account of the connection between cases.
19 On 20 April 2012 the Council lodged its defence.
20 On 11 June 2012 the applicant lodged its reply.
21 On 25 July 2012 the Council lodged its rejoinder.
22 Following changes to the composition of the Chambers of the Court as from 23 September 2013, the Judge-Rapporteur was assigned to the First Chamber, to which the present case has therefore been allocated.
23 Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, requested the parties to respond to certain questions. The applicant and the Council complied with that request within the prescribed period.
24 By a separate document lodged at the Court Registry on 27 November 2013, the Council submitted a preliminary application, under Article 114(1) of the Rules of Procedure, for the present action to be declared inadmissible on the ground that none of the heads of claim was admissible.
25 The applicant and the Council presented oral argument and answered the oral questions put to them by the Court at the hearing on 10 December 2013. During the hearing, the applicant, inter alia, orally withdrew its head of claim seeking annulment of the Council’s letter of 5 December 2011 (paragraph 15 above), in so far as it constituted a decision concerning the applicant. The applicant also submitted its observations on the Council’s plea of inadmissibility against the action (paragraph 24 above). At the end of the oral submissions, the Court decided to reserve that plea for final judgment.
26 The applicant claims, in essence, that the Court should:
– annul Decision 2011/783, in so far as it maintained, after review, the listing of the applicant’s name in Annex II to Decision 2010/413, as amended by Decision 2010/644, with effect from 1 December 2011, and Implementing Regulation No 1245/2011, in so far as it maintained, after review, the listing of the applicant’s name in Annex VIII to Regulation No 961/2010, with effect from 2 December 2011 (‘the contested listing measures’);
– annul Article 16(2) of Regulation No 961/2010 and Article 19(1)(b) and Article 20(1)(b) of Decision 2010/413;
– order the Council to pay the costs.
27 The Council contends that the Court should:
– primarily, dismiss the action as inadmissible;
– in the alternative:
– dismiss, as inadmissible, the application for annulment of the maintenance, after review, of the listing of the applicant’s name in Annex VIII to Regulation No 961/2010 and also of Article 16(2) of that regulation;
– dismiss the remainder of the action as unfounded;
– in any event, order the applicant to pay the costs.
Law
The jurisdiction of the Court and the admissibility of the form of order sought by the applicant
The claim for annulment of the contested listing measures
28 The Council argues that this claim is inadmissible because the judgment in Sina Bank v Council, paragraph 17 above, has the force of res judicata. The applicant had already sought and obtained the annulment of Annex II to Decision 2010/413, as amended by Decision 2010/644, and of Annex VIII to Regulation No 961/2010, in so far as they concern it, in the judgment in Sina Bank v Council, paragraph 17 above, which had become definitive and acquired the force of res judicata. That annulment also covers the contested listing measures.
29 The applicant submits that the plea of inadmissibility raised by the Council against its claim should be rejected. It contends, in particular, that the contested listing measures replaced the earlier measures having the same subject-matter and the annulment of which it had sought in Case T‑15/11, with the result that the present action is entirely admissible.
30 It must be observed that, in the preamble to Decision 2011/783 and to implementing Regulation No 1245/2011, the Council explicitly stated that it had carried out a complete review of the lists in Annex II to Decision 2010/413 and in Annex VIII to Regulation No 961/2010 (‘the lists at issue’) and that it had concluded that the persons, entities and bodies listed therein should continue to be subject to restrictive measures. Those measures, adopted following a process of review expressly required by Decision 2010/413 and by Regulation No 961/2010, thus provide that the restrictive measures set out in that decision and that regulation are to continue to affect directly and individually the persons, entities and bodies concerned, and therefore produce legal effects specific to them. Consequently, it is open to them to seek the annulment of those measures, in so far as those measures concern them.
31 The applicant did not modify the form of order sought in the context of the action in Case T‑15/11, which it would have been possible to do (see, by analogy, Case T‑256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II‑3019, paragraph 46 and the case-law cited), in order to extend, in particular, its original pleadings to the contested listing measures. It preferred to bring, by a separate document, a new action seeking, inter alia, the annulment of those same measures. That choice, which belongs to the applicant, cannot have any impact on the classification of those measures as being measures open to challenge by the applicant on the basis of Article 263 TFEU or the second paragraph of Article 275 TFEU and, therefore, on the admissibility of the action brought against those measures by the applicant.
32 Furthermore, the admissibility of the action, which is to be judged at the time when it was brought, cannot be challenged on the basis of an event which took place subsequently, namely, in the present case, the delivery of the judgment in Sina Bank v Council, paragraph 17 above, which annulled, for breach of the obligation to state reasons, Annex II to Decision 2010/413, as amended by Decision 2010/644, and Annex VIII to Regulation No 961/2010, in so far as they concerned the applicant, and which became final and acquired the force of res judicata after the expiry of the period allowed for bringing an appeal.
33 It follows that the plea of inadmissibility raised by the Council against this claim must be rejected as unfounded.
The claim for annulment of Article 20(1)(b) of Decision 2010/413 and of Article 16(2) of Regulation No 961/2010
34 The Council claims that, as a result of the inadmissibility of the claim for annulment of the contested listing measures, the application for annulment of the general provisions on the basis of which those specific measures were taken, namely Article 20(1)(b) of Decision 2010/413 and Article 16(2) of Regulation No 961/2010, are themselves inadmissible.
35 The applicant did not respond specifically to the plea of inadmissibility raised by the Council.
36 Since the plea of inadmissibility relating to the claim for annulment of the contested listing measures has been rejected (paragraph 33 above), the plea of inadmissibility raised by the Council against this claim is itself unfounded and must, therefore, be rejected.
37 However, the Court should examine of its own motion (i) whether the claim for annulment of Article 20(1)(b) of Decision 2010/413 has been brought before a court that has jurisdiction to hear it and (ii) the admissibility of the claim for annulment of Article 16(2) of Regulation No 961/2010, in accordance with the case-law according to which the Courts of the European Union may at any time of their own motion consider whether there exists any bar to proceeding with a case, including the extent of their jurisdiction and the conditions for the admissibility of an action (see, to that effect, Case 6/60 Humblet v État belge [1960] ECR 559, 570).
38 As regards the claim for annulment of Article 20(1)(b) of Decision 2010/413, it must be observed that that provision was adopted on the basis of Article 29 TEU, which is a provision concerning the common foreign and security policy (CFSP) within the meaning of Article 275 TFEU. However, as provided in the second paragraph of Article 275 TFEU, read in conjunction with Article 256(1) TFEU, the General Court has jurisdiction only to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 TFEU, reviewing the legality of 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. As the Court of Justice held in Joined Cases C‑478/11 P to C‑482/11 P Gbagbo v Council [2013] ECR, paragraph 57, as regards measures adopted on the basis of provisions relating to the CFSP, it is the individual nature of those measures which, in accordance with the second paragraph of Article 275 TFEU and the fourth paragraph of Article 263 TFEU, permits access to the Courts of the European Union.
39 The restrictive measures provided for in Article 20(1)(b) of Decision 2010/413 are measures of general application because they apply to situations determined objectively as relating to nuclear proliferation and to a category of persons envisaged in a general and abstract manner as being ‘persons and entities … as listed in Annex II to Decision 2010/413’ (see, to that effect, Sina Bank v Council, paragraph 17 above, paragraph 45; see also, to that effect and by analogy, Gbagbo v Council, paragraph 38 above, paragraph 56). Consequently, that provision cannot be classified as a ‘decision providing for restrictive measures against natural or legal persons’ within the meaning of the second paragraph of Article 275 TFEU. That outcome is not altered by the fact that the applicant stated that it was challenging that provision only in so far as the provision concerned it. The fact that that provision was applied to the applicant does not alter its legal nature as an act of general application. In the present case, the ‘decision providing for restrictive measures against natural or legal persons’ within the meaning of the second paragraph of Article 275 TFEU lies in the measure by which the listing of the applicant’s name was maintained, after review, in Annex II to Decision 2010/413, as amended by Decision 2010/644, with effect from 1 December 2011.
40 The claim for annulment of Article 20(1)(b) of Decision 2010/413 therefore does not satisfy the rules governing the jurisdiction of the Court laid down in the second paragraph of Article 275 TFEU. It must therefore be dismissed as having been brought before a court that has no jurisdiction to hear it.
41 As regards the claim for annulment of Article 16(2) of Regulation No 961/2010, it must be observed that that provision was adopted on the basis of Article 215 TFEU which governs the restrictive measures adopted by the Council within the framework of the European Union’s external action. As provided in the fourth paragraph of Article 263 TFEU, read in conjunction with Article 256(1) TFEU, the General Court has jurisdiction in actions brought by any natural or legal person, under the conditions laid down in the first and second paragraphs of Article 263 TFEU, against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
42 The restrictive measures provided for in Article 16(2) of Regulation No 961/2010 are measures of general application because they apply to situations determined objectively as relating to nuclear proliferation and to a category of persons envisaged in a general and abstract manner as being the persons, entities and bodies listed in Annex VIII to Regulation No 961/2010 (see the case-law already cited in paragraph 39 above). The application of that provision requires the adoption of an implementing measure or, in other words, of a measure of an individual nature consisting, as is apparent from Article 36(2) and (3) of Regulation No 961/2010, of the listing or, after review, the maintenance of the listing of the person, entity or body referred to in Annex VIII to that regulation. Consequently, Article 16(2) of Regulation No 961/2010 is not, as such, a measure which the applicant could directly challenge on the basis of the fourth paragraph of Article 263 TFEU. That outcome is not altered by the fact that the applicant stated that it was challenging that provision only in so far as the provision concerned it. The fact that that provision was applied to the applicant does not alter its legal nature as an act of general application. In the present case, the individual measure, which is directly challengeable by the applicant, is the measure by which the applicant’s name was maintained, after review, in Annex VIII to Regulation No 961/2010, with effect from 2 December 2011.
43 The claim for annulment of Article 16(2) of Regulation No 961/2010 therefore does not meet the conditions for admissibility laid down in the fourth paragraph of Article 263 TFEU. It must therefore be dismissed as inadmissible.
The claim for annulment of Article 19(1)(b) of Decision 2010/413
44 The Council submits that this claim is inadmissible since Article 19(1)(b) of Decision 2010/413, which provides that Member States are to take the necessary measures to prevent the entry into, or transit through their territories of ‘persons’ listed in Annex II to that decision, does not apply to ‘entities’ which, like the applicant, are listed in Annex II to Decision 2010/413.
45 The applicant did not respond specifically to the plea of inadmissibility raised by the Council.
46 Before examining the plea of inadmissibility raised by the Council, it must be stated that, like Article 20(1)(b) of Decision 2010/413, Article 19(1)(b) of that decision was adopted on the basis of Article 29 TEU, with the result that the Court should examine of its own motion whether this claim for annulment of Article 19(1)(b) of Decision 2010/413 has been brought before a court that has jurisdiction to hear it.
47 Article 19(1)(b) of Decision 2010/413 applies to a category of addressees determined in a general and abstract manner, namely ‘persons [who are] listed in Annex II [to Decision 2010/413]’ and, therefore, has the characteristics of an act of general application. Consequently, that provision cannot be classified as a ‘decision providing for restrictive measures against natural or legal persons’ against which those persons would have a right of direct action under the second paragraph of Article 275 TFEU.
48 Furthermore and in any event, as rightly observed by the Council, the applicant, as an ‘entity’ listed in Annex II to Decision 2010/413 and not as a ‘person’ listed in that annex, does not belong to the category of addressees referred to in Article 19(1)(b) of Decision 2010/413, with the result that that provision is not applicable to it and, moreover, was not applied to it in the contested listing measures.
49 Consequently, in the present case, the claim for annulment of Article 19(1)(b) of Decision 2010/413 must be rejected as having been brought before a court that has no jurisdiction to hear it.
50 It follows from the foregoing that the action must be dismissed as having been brought before a court that has no jurisdiction to hear it, in so far as it seeks annulment of Article 19(1)(b) and of Article 20(1)(b) of Decision 2010/413, and as being inadmissible, in so far as it seeks annulment of Article 16(2) of Regulation No 961/2010.
Substance
51 The applicant puts forward four pleas in law in support of its claims for annulment. The first plea alleges error of assessment, resulting from the fact that the Council included its name or, after review, maintained its name on the lists at issue although the applicant does not satisfy the substantive criteria that would permit its inclusion. The second plea alleges breach of the principle of equal treatment, resulting from the fact that the applicant was treated differently from the other Iranian banks whose names were not included on the lists at issue, the ‘Daftar’ (Office of the Leader of the Islamic Revolution) and the Mostaz’afan Foundation of the Islamic Republic of Iran (‘the Foundation’). The third plea alleges breach of the principle of respect for the rights of the defence, the right to effective judicial protection and the obligation to state reasons, resulting from the fact that the applicant was not informed of either the precise grounds or the evidence and documents that would have justified the inclusion of its name or, after review, the maintenance of the applicant’s name on the lists at issue. The fourth plea alleges breach of the right to property and the principle of proportionality, resulting from the fact that, in any event, the freezing of the applicant’s funds constituted an unnecessary and disproportionate interference with its right to property.
52 The Council submits that the claims for annulment should be rejected, on the ground that none of the pleas put forward in order to support them is well founded.
53 In the present case, it is appropriate to begin with an examination of the third plea for annulment, alleging breach of the principle of respect for the rights of the defence, the right to effective judicial protection and the obligation to state reasons. In the context of this plea, the applicant claims, in essence, that the contested listing measures were adopted without regard for the procedures which seek to guarantee respect for the rights of the defence and the right to effective judicial protection, namely, in particular, the general obligation to state reasons, the specific obligations to communicate the grounds for inclusion on the lists and to review the restrictive measures in the light of the observations of the persons concerned, as laid down in Article 24(3) and (4) of Decision 2010/413 and Article 36(3) and (4) of Regulation No 961/2010, the right to have access to the file and the right to be heard. According to the applicant, the breach of the obligation to state reasons or to communicate the grounds was not cured by the notification of the statement of reasons contained in the letter of 5 December 2011.
54 The Council disputes the fact that the applicant is entitled to and can rely, to its advantage, on fundamental rights protection and guarantees. More specifically, the Council contends that the applicant cannot rely on the principle of respect for the rights of the defence. In any event, the Council takes the view that it fully complied in the present case with the fundamental rights protection and guarantees relied on by the applicant.
55 Before going on to examine whether a breach of the principle of respect for the rights of the defence, the right to effective judicial protection and the obligation to state reasons can be established in the present case, the Court must first examine whether, contrary to what the Council maintains, the applicant can rely on the fundamental rights protection and guarantees which it invokes.
The applicant’s ability to rely on fundamental rights protection and guarantees
56 The question whether the applicant is entitled to the rights which it invokes in support of the third plea does not concern the admissibility of that plea, but its merits.
57 In the present case, the Council argues that, under EU law, legal persons which are government organisations or State bodies cannot rely on fundamental rights protection and guarantees. According to the Council, since the applicant is an Iranian government organisation or an Iranian State body, that rule applies to it.
58 In that regard, it must be observed that neither in the Charter of Fundamental Rights of the European Union nor in the Treaties are there any provisions which state that legal persons which are government organisations or State bodies are not entitled to the protection of fundamental rights. On the contrary, the provisions of the Charter which are relevant to the plea raised by the applicant, that is in particular Articles 17, 41 and 47, guarantee the rights of ‘[e]veryone’ or ‘[e]very person’, which includes legal persons such as the applicant (see, to that effect, Joined Cases T‑35/10 and T‑7/11 Bank Melli Iran v Council [2013] ECR, paragraph 65).
59 None the less, the Council relies, in this context, on Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), signed at Rome on 4 November 1950, the effect of which is that applications submitted to the European Court of Human Rights by governmental organisations are not admissible.
60 However, for the reasons found in paragraph 67 of Bank Melli Iran v Council, paragraph 58 above, Article 34 of the ECHR, as interpreted by the European Court of Human Rights, is not applicable to the present case. First, Article 34 of the ECHR is a procedural provision which is not applicable to procedures before the Courts of the European Union and, secondly, the reasoning underlying the case-law of the European Court of Human Rights, according to which the aim of that provision is to ensure that a State which is a party to the ECHR is not both applicant and defendant before that court, is not applicable in a case such as the present.
61 In the light of the foregoing, it must be held that EU law contains no rule preventing legal persons which are government organisations or State bodies from taking advantage of fundamental rights protection and guarantees. Those rights may therefore be relied on by those persons before the Courts of the European Union in so far as those rights are compatible with their status as legal persons (Bank Melli Iran v Council, paragraph 58 above, paragraph 70).
62 It follows that fundamental rights protection and guarantees may be relied on by the applicant.
63 That having been observed, it is appropriate in the present case to begin with an examination of the complaint alleging breach of the principle of respect for the rights of the defence.
The alleged breach of the principle of respect for the rights of the defence
64 The applicant claims that, by adopting the contested listing measures, the Council breached the principle of respect for the rights of the defence, in so far as it never informed the applicant of either the pieces of information which, within the meaning of the case-law, might be characterised as the reasons on which the contested listing measures were based, or the evidence and documents that would have justified the inclusion of the applicant’s name or, after review, the maintenance of its name on the lists at issue, although the applicant submitted a number of requests to that effect. In addition, the Council has breached the principle of respect for the rights of the defence in refusing to hear the applicant so that it might explain the documents in the file, although the applicant expressly requested the opportunity to do so in the letters of 6 and 20 December 2010. Thus, with respect to the applicant’s inclusion on the lists, the Council did not allow the applicant to exercise in an effective, proper and fair manner its right to be heard and its right to defend itself, as laid down in the case-law of the Court of Justice and in that of the European Court of Human Rights, from which it is clear that the minimum disclosure of the evidence and the documents necessary to ensure that a procedure is fair and respects the rights of the defence must be ensured. In any event, the Council has not shown that it was necessary to place such a limit on the rights of the defence in the circumstances of the present case.
65 The Council disputes the applicant’s arguments and submits that this complaint should be rejected.
66 In that regard, it should be recalled that the fundamental right to respect for the rights of defence during a procedure preceding the adoption of a restrictive measure is expressly affirmed in Article 41(2)(a) of the Charter of Fundamental Rights, recognised by Article 6(1) TEU as having the same legal value as the Treaties (see Case T‑383/11 Makhlouf v Council [2013] ECR, paragraph 31 and the case-law cited).
67 The principle of respect for the rights of the defence requires, subject to exceptions which may, inter alia, arise from the need to preserve the effectiveness of an initial listing measure, that (i) the evidence adduced against the person, entity or body concerned to justify the measure adversely affecting it be communicated to it and (ii) the person, entity or body concerned be afforded the opportunity effectively to make known its view on that evidence (see, by analogy, Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II‑4665, paragraphs 93, 127 and 128).
68 In the context of the adoption of a decision maintaining a person, entity or body in a list of persons, entities or bodies subject to restrictive measures, the Council must respect the right of that person, entity or body to a prior hearing where new evidence, namely evidence which was not included in the initial listing decision, is admitted against it in the decision maintaining it on the list (see, to that effect, Case C‑27/09 P France v People’s Mojahedin Organization of Iran [2011] ECR, paragraph 62, and Makhlouf v Council, paragraph 66 above, paragraphs 42 and 43).
69 In the present case, on 5 December 2011, the Council informed the applicant individually of the statement of reasons for the contested listing measures to the effect that ‘the main shareholder [of the applicant was] still the Mostaz’afan Foundation, which [was] a public body reporting to [the] Supreme Leader [of the Islamic Revolution]’ (‘the statement of reasons notified on 5 December 2011’).
70 By that individual notification, the Council clearly sought to remedy the initial statement of reasons for the contested listing measures, as mentioned in paragraph 5 above, and which, in paragraph 82 of the judgment in Sina Bank v Council, paragraph 17 above, was deemed insufficient to meet the requirements resulting from Article 296 TFEU, Article 24(3) of Decision 2010/413 and Article 36(3) of Regulation No 961/2010 for the reasons stated in paragraphs 71 to 81 of that judgment.
71 Like the initial statement of reasons, the statement of reasons notified on 5 December 2011 concerns the control exercised over the applicant by a person, entity or body engaged in, directly associated with, or providing support for, nuclear proliferation, for the purpose of Article 20(1)(b) of Decision 2010/413, or identified as such and affected, on that basis, by a fund-freezing measure, for the purpose of Article 16(2)(a) of Regulation No 961/2010. However, in the statement of reasons notified on 5 December 2011, the Council no longer refers, as in the initial statement of reasons, to control exercised over the applicant by the ‘Daftar’, but to control exercised over the applicant by the Foundation, itself presented as ‘a public body reporting to [the] Supreme Leader [of the Islamic Revolution]’.
72 Thus it must be noted that, in the statement of reasons notified on 5 December 2011, evidence concerning the structure of the shareholdings in the applicant and the powers exercised by the Supreme Leader of the Islamic Revolution over the Foundation was used by the Council against the applicant in order to justify the maintenance of the fund-freezing measure taken against it.
73 It is true that that evidence had been communicated to the Council by the applicant itself, in particular by the letter of 8 September 2010, and was, therefore, already known to the applicant.
74 However, before 5 December 2011, that evidence had never been used by the Council against the applicant as evidence justifying the maintenance of the fund-freezing measure taken against it, with the result that, when the applicant communicated that evidence to the Council with a view to defending its interests, it was not yet in a position to submit observations on the use of that evidence that would be made, with respect to the applicant, in the contested listing measures.
75 It must therefore also be held that the contested listing measures are based on new evidence and that, in accordance with the case-law cited in paragraph 68 above, the Council was required to respect the applicant’s right to a prior hearing with regard to that new evidence.
76 However, in the present case, the Council did not hear the applicant, prior to the adoption of the contested listing measures, regarding the new evidence relied on against it in the statement of reasons notified on 5 December 2011, which was notified to the applicant individually just a few days after the entry into force of the contested listing measures on 1 and 2 December 2011, respectively.
77 The applicant’s right to a prior hearing was therefore infringed.
78 It follows that the complaint alleging breach of the principle of respect for the rights of the defence must be upheld.
79 Consequently, without there being any need to consider the other pleas in law or complaints in the application, the contested listing measures must be annulled in their entirety.
Costs
80 Pursuant to Article 87(3) of the Rules of Procedure, the Court may order that the costs be shared or that each party bear its own costs where each party succeeds on some and fails on other heads.
81 In the circumstances of the present case, since the Council has essentially been unsuccessful, it must be ordered to bear four fifths of its own costs and to pay four fifths of the applicant’s costs, and the applicant must be ordered to bear the remaining one fifth of its own costs and to pay one fifth of the Council’s costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Dismisses the action as having been brought before a court that has no jurisdiction to hear it, in so far as it seeks annulment of Article 19(1)(b) and Article 20(1)(b) of Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, and as being inadmissible, in so far as it seeks annulment of Article 16(2) of Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007;
2. Annuls Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413 concerning restrictive measures against Iran, and Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 on restrictive measures against Iran, in so far as those measures maintained, after review, the name of Sina Bank in Annex II to Decision 2010/413, as amended by Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413, and in Annex VIII to Regulation No 961/2010, respectively;
3. Orders the Council of the European Union to bear four fifths of its own costs and to pay four fifths of the costs of Sina Bank;
4. Orders Sina Bank to bear one fifth of its own costs and to pay one fifth of the Council’s costs.
Kanninen | Pelikánová | Buttigieg |
Delivered in open court in Luxembourg on 4 June 2014.
[Signatures]
Table of contents
Background to the dispute
Restrictive measures taken against the Islamic Republic of Iran
Restrictive measures directed at the applicant
Procedure and forms of order sought by the parties
Law
The jurisdiction of the Court and the admissibility of the form of order sought by the applicant
The claim for annulment of the contested listing measures
The claim for annulment of Article 20(1)(b) of Decision 2010/413 and of Article 16(2) of Regulation No 961/2010
The claim for annulment of Article 19(1)(b) of Decision 2010/413
Substance
The applicant’s ability to rely on fundamental rights protection and guarantees
The alleged breach of the principle of respect for the rights of the defence
Costs