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 — Removal from the list of persons and entities concerned — Action for annulment — Interest in bringing proceedings — Admissibility — Obligation to state reasons — Error of assessment)
In Case T‑66/12,
Ali Sedghi, residing in Tehran (Iran),
Ahmad Azizi, residing in London (United Kingdom),
represented initially by S. Gadhia, S. Ashley, Solicitors, D. Wyatt QC and M. Lester, Barrister, subsequently by S. Ashley, D. Wyatt, M. Lester, A. Irvine and S. Jeffrey, Solicitors, and finally by S. Ashley, D. Wyatt, M. Lester, A. Irvine and S. Millar, Solicitor,
applicants,
v
Council of the European Union, represented initially by M. Bishop, I. Rodios and B. Driessen, and subsequently by M. Bishop and I. Rodios, acting as Agents,
defendant,
APPLICATION, principally, for annulment, with immediate effect, 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), 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), and Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1), in so far as those acts concern the applicants, and, in the alternative, for a declaration that 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 (OJ 2010 L 195, p. 39), 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 (OJ 2010 L 281, p. 1), and Article 23(2) of Regulation No 267/2012 do not apply to Mr Azizi,
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, I. Pelikánová (Rapporteur) and E. Buttigieg, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written procedure and further to the hearing on 7 January 2014,
gives the following
Judgment
Background to the dispute
1 The first applicant, Mr Ali Sedghi, is the former Chairman and Non-executive Director of Melli Bank Plc.
2 The second applicant, Mr Ahmad Azizi, is the Deputy Chairman and Managing Director of Melli Bank.
3 Melli Bank is a United Kingdom bank which is wholly owned by Bank Melli Iran (‘BMI’), an Iranian bank controlled by the Iranian State.
4 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’).
5 Both BMI and Melli Bank have been subject to restrictive measures concerning nuclear proliferation since 2008. The reason for the adoption and maintenance of the restrictive measures to which BMI is subject is that it had allegedly provided support for nuclear proliferation. Melli Bank is subject to the measures because it is wholly owned by BMI.
6 In the context of the strengthening of restrictive measures concerning nuclear proliferation, the applicants were included on the list of persons involved in Iranian nuclear proliferation set out in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), by Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413 (OJ 2011 L 319, p. 71).
7 Consequently, the applicants were included on the list in Annex VIII to Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), by Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11).
8 The inclusion of the applicants on the list in Annex II to Decision 2010/413 and on the list in Annex VIII to Regulation No 961/2010 resulted in the freezing of their funds and economic resources and restrictions on their admission into the territories of the Member States.
9 The reasons given in Decision 2011/783 and Implementing Regulation No 1245/2011 as far as Mr Sedghi is concerned are the following:
‘Chairman and Non-executive Director of the EU-designated [Melli Bank].’
10 The following reasons were stated in Decision 2011/783 and Implementing Regulation No 1245/2011 against Mr Azizi:
‘Deputy Chairman and Managing Director of EU-designated [Melli Bank].’
11 Since Regulation No 961/2010 was repealed by Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran (OJ 2012 L 88, p. 1), the Council of the European Union included the applicants in Annex IX to the latter regulation. The reasons stated with regard to the applicants were the same as those stated in Decision 2011/783 and Implementing Regulation No 1245/2011.
12 By Council Decision 2012/205/CFSP of 23 April 2012 amending Decision 2010/413 (OJ 2012 L 110, p. 35), Mr Sedghi was removed from the list in Annex II to Decision 2010/413. By Council Implementing Regulation (EU) No 350/2012 of 23 April 2012 implementing Regulation No 267/2012 (OJ 2012 L 110, p. 17), he was consequently removed from the list in Annex IX to Regulation No 267/2012.
13 By Council Decision 2012/457/CFSP of 2 August 2012 amending Decision 2010/413 (OJ 2012 L 208, p. 18), Mr Azizi was removed from the list in Annex II to Decision 2010/413. By Council Implementing Regulation (EU) No 709/2012 of 2 August 2012 implementing Regulation No 267/2012 (OJ 2012 L 208, p. 2), he was removed from the list in Annex IX to Regulation No 267/2012.
Procedure and forms of order sought
14 By application lodged at the Court Registry on 13 February 2012, the applicants brought the present action.
15 By a separate document lodged at the Court Registry on the same day, the applicants made an application for the case to be decided under an expedited procedure in accordance with Article 76a of the Rules of Procedure of the General Court. By decision of 14 March 2012, the General Court (Fourth Chamber) granted that application.
16 The defence was lodged on 4 April 2012.
17 By document lodged at the Court Registry on 27 April 2012, the applicants modified their heads of claim following the adoption of Regulation No 267/2012.
18 By letter of 10 May 2012, the applicants requested the right to lodge a reply. That request was granted by decision of the General Court (Fourth Chamber) of 25 May 2012, and the reply was lodged on 11 June 2012.
19 The Council did not lodge a rejoinder within the time-limit laid down for that purpose.
20 Between May 2012 and June 2013, there was some correspondence between the Court, the applicants and the Council regarding the applicants’ interest in bringing proceedings following their removal from the list in Annex II to Decision 2010/413 and the list in Annex IX to Regulation No 267/2012.
21 By document of 7 August 2012, the applicants requested that the Court put certain questions to the Council by way of measures of organisation of procedure provided for under Article 64 of the Rules of Procedure.
22 Following changes to the composition of the Chambers of the General Court, the Judge-Rapporteur was assigned to the First Chamber, to which this case was consequently allocated.
23 Upon hearing the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure provided for under Article 64 of the Rules of Procedure, put questions to the parties in writing, inviting them to answer them at the hearing.
24 The parties presented oral argument and answered written and oral questions put by the Court at the hearing on 7 January 2014.
25 The applicants claim that the Court should:
– annul, with immediate effect, Decision 2011/783, Implementing Regulation No 1245/2011 and Regulation No 267/2012 (together, ‘the contested acts’) in so far as those acts apply to them;
– order the Council to pay the costs.
26 In addition, Mr Azizi requested that the General Court declare that Article 19(1)(b) and Article 20(1)(b) of Decision 2010/413, Article 16(2) of Regulation No 961/2010 and Article 23(2) of Regulation No 267/2012 do not apply to him. At the hearing, Mr Azizi explained, however, that that request was made only in the event that the application for annulment was rejected.
27 In the defence, the Council contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
28 In its observations of 29 May and 24 September 2012, the Council contended that the Court should declare that there is no need to adjudicate, following the applicants’ removal from the list in Annex II to Decision 2010/413 and the list in Annex IX to Regulation No 267/2012, and order each party to bear its own costs.
Law
Admissibility of the modification of the applicants’ heads of claim
29 According to the case-law, when a decision or a regulation imposing restrictive measures is replaced, during the proceedings, by another measure with the same subject-matter, this is to be considered a new factor allowing the applicant to adapt its claims and pleas in law (see Joined Cases T‑35/10 and T‑7/11 Bank Melli Iran v Council [2013] ECR, paragraph 53 and the case-law cited).
30 However, in order to be admissible, a request to modify the form of order sought must be submitted within the time-limit for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU. Where, as in this case, the address of the person or entity concerned is known, that time-limit starts to run only from the date on which the act which maintains the restrictive measures is notified individually to that person or entity (see, to that effect, Bank Melli Iran v Council, cited in paragraph 29 above, paragraphs 55 to 57).
31 In the present case, Regulation No 267/2012 was adopted on 23 March 2012 and the applicants modified their heads of claim to include an application for its annulment on 27 April 2012, that is one month and four days later. Consequently, irrespective of the date on which Regulation No 267/2012 was individually notified, the applicants necessarily complied with the time-limit of two months laid down in the sixth paragraph of Article 263 TFEU, extended on account of distance by 10 days as provided for in Article 102(2) of the Rules of Procedure.
32 In those circumstances, the applicants are entitled to apply for annulment in part of Regulation No 267/2012, in so far as that act concerns them.
The application for a declaration that there is no need to adjudicate
33 The Council submits that, following the applicants’ removal from the list in Annex II to Decision 2010/413 and from the list in Annex IX to Regulation No 267/2012, they no longer have an interest in bringing proceedings for annulment of the contested acts, since their removal from those lists leaves them with the desired result and gives them complete satisfaction.
34 The applicants emphasise that they still have an interest in bringing proceedings. They claim, in particular, that that removal does not amount to annulment of the contested acts, in that it does not entail a finding that those acts are unlawful.
35 According to settled case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see Case C‑239/12 P Abdulrahim v Council and Commission [2013] ECR, paragraph 61 and the case-law cited).
36 In that regard, the Court of Justice has held that the interest in bringing proceedings of an applicant who is subject to restrictive measures concerning alleged terrorist activities is retained, despite the removal of his name from the list of persons covered by those measures, for the purpose of having the Courts of the European Union recognise that he should never have been included on the list or that he should not have been included under the procedure which was adopted by the EU institutions. Indeed, according to the Court of Justice, whilst recognition of the illegality of the contested act cannot, as such, compensate for material harm or for interference with one’s private life, it is nevertheless capable of rehabilitating the applicant or constituting a form of reparation for the non-material harm which he has suffered by reason of that illegality, and of thereby establishing that he retains his interest in bringing proceedings (Abdulrahim v Council and Commission, cited in paragraph 35 above, paragraphs 71 and 72).
37 The Court of Justice noted, in that regard, that the restrictive measures in question have substantial negative consequences and a considerable impact on the rights and freedoms of the persons covered. Apart from the freezing of funds as such which, through its broad scope, seriously disrupts both the working and the family life of the persons covered and impedes the conclusion of numerous legal acts, account had to be taken, according to the Court, of the opprobrium and suspicion that accompanied the public designation of the persons covered as being associated with a terrorist organisation (see, to that effect, Abdulrahim v Council and Commission, cited in paragraph 35 above, paragraph 70).
38 The Council states that that case-law is not applicable in the present case, since the adoption of the restrictive measures covering the applicants was not based on any wrongdoing on their part and they have a statement setting out the position of the United Kingdom of Great Britain and Northern Ireland, according to which they should not have been subject to restrictive measures.
39 However, the restrictive measures covering the applicants are comparable, as regards their effects on the rights and freedoms of the persons covered, to those at issue in Abdulrahim v Council and Commission, cited in paragraph 35 above.
40 Similarly, the restrictive measures to which the applicants were made subject are liable to affect their reputation and to cause them non-material harm. As a result of the adoption of those measures, the applicants have been publicly associated with nuclear proliferation, which is regarded as a serious threat to international peace and security.
41 Moreover, the fact that the applicants have a statement setting out the United Kingdom’s position, according to which they should not have been subject to restrictive measures, is not relevant, given that it is the Council, not the United Kingdom, which adopted the contested acts and which therefore answers for the lawfulness of those acts. Likewise, since the statement of the United Kingdom’s position was issued in the context of an out-of-court settlement between the United Kingdom authorities and the applicants, it is not likely to have the same effect on public opinion in the European Union, as regards the applicants’ reputation, as any judgment the General Court may deliver annulling the contested acts.
42 In the light of the foregoing, it must be concluded that the applicants still have an interest in bringing these proceedings, and the Council’s claim that the Court should declare that there is no need to adjudicate must accordingly be dismissed.
The application for annulment
43 In support of the application for annulment, the applicants put forward two common pleas in law. The first plea common to both applicants alleges breach of the obligation to state reasons and an error of assessment or lack of any valid legal basis. The second common plea alleges a disproportionate infringement of their fundamental rights. In addition, Mr Azizi puts forward two additional pleas, alleging, first, the unjustified and disproportionate restriction of his freedom of movement and, secondly, a lack of competence on the part of the Council.
44 The Council disputes the merits of the applicants’ pleas.
45 As regards the first common plea, the applicants submit that the stated reasons for the contested acts are insufficient. Moreover, according to the applicants, the Council either made an error of assessment or relied on an inappropriate legal basis in adopting the restrictive measures to which they are subject, since those measures do not satisfy any of the criteria provided for in the relevant legislation.
The complaint alleging breach of the obligation to state reasons
46 According to a consistent body of 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 Case C‑417/11 P Council v Bamba [2012] ECR, paragraph 49 and the case-law cited).
47 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 (see Council v Bamba, cited in paragraph 46 above, paragraph 50 and the case-law cited).
48 Where the person concerned is not afforded the opportunity to be heard before the adoption of an initial decision to freeze funds, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling the person concerned, at least after the adoption of that decision, to make effective use of the legal remedies available to him in order to challenge the lawfulness of that decision (see Council v Bamba, cited in paragraph 46 above, paragraph 51 and the case-law cited).
49 Therefore, the statement of reasons for an act of the Council which imposes a measure freezing funds must identify the actual and specific reasons why the Council considers, in the exercise of its discretion, that that measure must be adopted in respect of the person concerned (see Council v Bamba, cited in paragraph 46 above, paragraph 52 and the case-law cited).
50 The statement of reasons required by Article 296 TFEU must, however, be appropriate to the act 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 (see Council v Bamba, cited in paragraph 46 above, paragraph 53 and the case-law cited).
51 In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him (see Council v Bamba, cited in paragraph 46 above, paragraph 54 and the case-law cited).
52 In the present case, the applicants concede that the facts accepted by the Council in their case, namely the positions they held at Melli Bank, are described with sufficient precision in the contested acts. However, according to them, the statement of reasons provided does not enable them to determine which of the criteria laid down by Decision 2010/413, Regulation No 961/2010 and Regulation No 267/2012 was applied by the Council in adopting the restrictive measures to which they are subject.
53 In the Council’s view it is possible to understand from the statement of reasons provided that the applicants were made subject to restrictive measures on the basis of the criteria relating, first, to persons or entities providing support for nuclear proliferation and, secondly, to persons or entities acting on behalf of or at the direction of an entity involved in nuclear proliferation, in this instance, BMI.
54 In that regard, it is certainly true that the criteria in question are not expressly identified in the statement of reasons for the contested acts concerning the applicants, set out in paragraphs 9 and 10 above.
55 That said, first of all, it is possible to understand from the reasons stated in relation to the applicants, Melli Bank and BMI, read as a whole, that the applicants are subject to the restrictive measures because of a link that exists between BMI, identified as an entity providing support for nuclear proliferation, Melli Bank and the applicants themselves. Likewise, the applicants could not have been unaware of the fact that they were appointed to the positions they held at Melli Bank by BMI.
56 Next, as the applicants themselves admit, a large majority of the criteria provided for by Decision 2010/413, Regulation No 961/2010 and Regulation No 267/2012 are manifestly inapplicable to them. Thus, first, the applicants are natural persons, not entities. Secondly, the statement of reasons concerning them does not suggest that they are linked to the Islamic Revolutionary Guard Corps or to Islamic Republic of Iran Shipping Lines. Nor, thirdly, does the statement of reasons indicate that they had assisted a designated person or entity in violating the provisions imposing restrictive measures, or that they had provided support to the Iranian Government. Consequently, the only criteria that could have been applied to the applicants were those which the Council did actually apply, which are set out in paragraph 53 above.
57 Lastly, it must be noted that the fact that the statement of reasons provided is sufficient is demonstrated by the arguments set out in the application. In the context of the second complaint in their first plea, the applicants challenge, in some detail, the merits of the claims that they provided support for nuclear proliferation or acted on behalf of or at the direction of BMI, which means that they were able to identify the criteria applied by the Council in their case.
58 In those circumstances, it must be concluded that the statement of reasons for the contested acts is sufficient as regards the listing of the applicants. Consequently, the complaint alleging breach of the obligation to state reasons must be rejected.
The complaint alleging error of assessment or lack of a valid legal basis
59 The applicants maintain that they do not meet the criteria put forward by the Council to support the restrictive measures covering them.
60 Thus, they dispute the claim that they provided support for nuclear proliferation, stating that neither they nor Melli Bank are accused of any conduct amounting to such support.
61 Moreover, the applicants maintain that they do not act on behalf of or at the direction of BMI. In that context, Mr Sedghi states that, in any event, the reason put forward in his case is incorrect since he has not been the chairman and non‑executive director of Melli Bank since 28 July 2009. Mr Azizi, on the other hand, claims that as a director of Melli Bank, he is required to act in the interests of Melli Bank and not of BMI. Moreover, while Melli Bank is subject to restrictive measures, its assets are frozen and all transactions it carries out have to be approved in advance by the United Kingdom authorities, so that Mr Azizi would not in any event be capable of acting on behalf of or at the direction of BMI in the performance of his duties at Melli Bank.
62 Referring to the judgment in Case T‑58/12 Nabipour and Others v Council [2013] ECR, the Council submits in response that, at the time of the adoption of the contested acts, it was entitled to adopt restrictive measures against the applicants on the basis of the criterion covering persons providing support for nuclear proliferation and the criterion covering persons acting on behalf of or at the direction of an entity involved in nuclear proliferation. It explains in that regard that, owing to the fact that they held management positions at Melli Bank, to which they were appointed by BMI, the applicants constituted a ‘link’ between BMI and Melli Bank, and so were capable of acting on behalf of or at the direction of BMI, in order, inter alia, to circumvent the restrictive measures to which it was subject or to provide support for nuclear proliferation.
63 As the Court of Justice noted in a review of restrictive measures, the Courts of the European Union must, in accordance with the powers conferred on them by the FEU Treaty, ensure the review, in principle the full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the EU legal order. That obligation is expressly laid down by the second paragraph of Article 275 TFEU (see Case C‑280/12 P Council v Fulmen and Mahmoudian [2013] ECR (‘Fulmen’), paragraph 58 and the case-law cited).
64 Those fundamental rights include, inter alia, the right to effective judicial protection (see Fulmen, cited in paragraph 63 above, paragraph 59 and the case‑law cited).
65 The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union also requires that the Courts of the European Union are to ensure that the decision, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the allegations factored 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 (see Fulmen, cited in paragraph 63 above, paragraph 64 and the case-law cited).
66 To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent EU authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see Fulmen, cited in paragraph 63 above, paragraph 65 and the case-law cited).
67 That is because 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 (see Fulmen, cited in paragraph 63 above, paragraph 66 and the case-law cited).
68 In the present case, it is necessary therefore to verify, in the light of the arguments, information and evidence submitted by the Council, whether the Council was entitled to consider, when adopting the contested acts, that the applicants could be made subject to the restrictive measures on the basis of the criterion covering persons providing support for nuclear proliferation and the criterion covering persons acting on behalf of or at the direction of an entity involved in nuclear proliferation, in this case, BMI.
69 In that context, the requirement of a clear and precise legal basis precludes the adoption of restrictive measures against a natural person merely on account of the position he holds within an entity that is itself included in the lists. Such an approach would effectively be based on a presumption for which no provision has been made in the relevant legislation. Consequently, according to the case-law, the listing of a natural person on account of his links with a person or entity which is itself included in the list cannot be based on presumptions that are not substantiated by the conduct of the person concerned (see Nabipour and Others v Council, cited in paragraph 62 above, paragraph 107 and the case-law cited).
70 The fact remains that persons holding a position which gives them managerial power over entities that are providing support for nuclear proliferation or acting on behalf of or at the direction of entities involved therein, at the time when that support is provided or those actions took place, may, as a general rule, themselves be regarded as providing support for nuclear proliferation or acting on behalf of or at the direction of entities involved therein (see, to that effect, Nabipour and Others v Council, cited in paragraph 62 above, paragraphs 109 and 110).
71 However, in the present case, as the Council itself admits, unlike the companies in Nabipour and Others v Council, cited in paragraph 62 above, Melli Bank was not made subject to restrictive measures because it had itself provided support for nuclear proliferation or acted on behalf of or at the direction of BMI, but only because it was wholly owned by BMI.
72 Consequently, the fact that the applicants held positions at Melli Bank does not by itself permit the inference that they provided support for nuclear proliferation or acted on behalf of or at the direction of BMI. The Council has not submitted any additional arguments, information or evidence to support its claim that that was the case, with the result that that claim cannot be accepted.
73 Nor can it be held that there is a risk that the applicants may support nuclear proliferation or act on behalf of or at the direction of BMI in the future (see, in that regard, Case C‑348/12 P Council v Manufacturing Support & Procurement Kala Naft [2013] ECR, paragraphs 84 and 85).
74 In that regard, the Council merely relies on the alleged position of the applicants as a ‘link’ between BMI and Melli Bank, and the influence that may accordingly be exerted over them by BMI.
75 However, first, it is not disputed that Mr Sedghi has not held a position at Melli Bank since 2009, so that he cannot, in any event, serve as a ‘link’ between Melli Bank and BMI. Nor, moreover, in the absence of information or evidence that Mr Sedghi maintained links with BMI after his departure from Melli Bank, can his past appointment to Melli Bank justify a finding that he is capable of acting on behalf of or at the direction of BMI or of providing support for nuclear proliferation at its instigation in another context (see, to that effect, Nabipour and Others v Council, cited in paragraph 62 above, paragraph 114).
76 Secondly, as regards Mr Azizi, it is certainly true that at the time of the adoption of the contested acts, he held positions at Melli Bank to which he had been appointed by BMI.
77 Likewise, it should be noted that, since BMI is subject to restrictive measures because it provided support for nuclear proliferation, there is a not insignificant danger that it may exert pressure on the entities it owns, such as Melli Bank, in order to circumvent restrictive measures applying to it (see, to that effect, Joined Cases T‑246/08 and T‑332/08 Melli Bank v Council [2009] ECR II‑2629, paragraph 103, and Case T‑493/10 Persia International Bank v Council [2013] ECR, paragraph 103). Such pressure will, as a general rule, be exerted through Melli Bank’s management, including Mr Azizi.
78 However, the fact that BMI can exert such pressure does not, by itself, mean that Mr Azizi will succumb to it and will act on BMI’s behalf or at its direction, or provide support for nuclear proliferation at its instigation.
79 In that regard, it must be observed, as a preliminary point, that the restrictive measures with which the present action is concerned do not relate to the funds of Melli Bank, which have been frozen, since 2008, by virtue of restrictive measures covering that bank, but to the personal funds of Mr Azizi. Consequently, the risk of Mr Azizi using Melli Bank’s funds in order to act on behalf of or at the direction of BMI or to provide support for nuclear proliferation at its instigation — assuming that is established — is a priori immaterial in the context of the examination of the merits of the restrictive measures covered by the present action.
80 Moreover, irrespective of the question of the origin of the relevant funds, in the first place, the Council does not dispute that Mr Azizi has at all times complied with the relevant legislation and the obligations arising from the restrictive measures covering BMI and Melli Bank when performing his duties at Melli Bank. Thus, the past professional conduct of Mr Azizi, including during the period when BMI was already subject to restrictive measures, does not permit the inference that he would be likely to act on behalf of or at the direction of BMI or to provide support for nuclear proliferation at its instigation.
81 In the second place, the Council does not even claim that there is anything other than Mr Azizi’s performance of his duties at Melli Bank that would tend to show that he would be likely to succumb to the pressure exerted by BMI.
82 In the third place, it must be noted that, since Mr Azizi is a citizen of the United Kingdom residing in the United Kingdom, acting on behalf of or at the direction of BMI or providing support for nuclear proliferation at its instigation would entail an infringement by Mr Azizi of the relevant legislation, making him liable, therefore, to prosecution and penalties, including of a criminal nature. Yet the Court’s file does not contain anything from which it might be inferred that he would be prepared to run that risk, which would be particularly high as regards the use of Melli Bank’s funds, given that Melli Bank is subject to restrictive measures and its transactions therefore require the prior approval of the United Kingdom authorities.
83 In those circumstances, it must be held that the Council has not established that, as a result of any pressure that may be exerted by BMI, Mr Azizi is likely to act on behalf of or at the direction of BMI or to provide support for nuclear proliferation at its instigation in the future, using his personal funds or the funds of Melli Bank.
84 In the light of all of the above, it must be concluded that the Council wrongly concluded that it was entitled to adopt the restrictive measures concerning the applicants on the basis of the criteria covering persons providing support for nuclear proliferation or persons acting on behalf of or at the direction of an entity involved in nuclear proliferation.
85 Accordingly, the first plea in law must be upheld and the contested acts annulled in so far as they concern the applicants, without there being any need to examine the other pleas.
86 Since the application for annulment has been granted, it is not necessary to rule on the application for a declaration of inapplicability submitted in the alternative by Mr Azizi.
87 As regards the applicants’ request for measures of organisation of procedure, the Council responded to those, in part, in the observations it submitted to the Court. As to the remainder, it is not necessary for that request to be granted, since the Court has been able to determine the substance of the dispute in the light of the file as it stands.
88 Lastly, the applicants ask that the annulment of the contested acts take immediate effect, notwithstanding the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union. The Council’s view is that that request should not be granted.
89 However, it should be noted that, contrary to what is required by the case-law cited in paragraph 35 above, the request in question is not in any event liable to procure an advantage for the applicants.
90 First, since the applicants have been removed from the lists of persons covered by the restrictive measures in question, they are no longer subject to restrictions on their rights and associated freedoms. Consequently, any annulment of the contested acts with immediate effect, assuming that were compatible with the second paragraph of Article 60 of the Statute of the Court of Justice, would not be capable of changing their legal situation in that regard.
91 Secondly, the annulment of the contested acts is capable of rehabilitating the applicants and of constituting a form of reparation for any non-material harm which they may have suffered, notwithstanding the rule in the second paragraph of Article 60 of the Statute of the Court.
92 Accordingly, it is no longer necessary to rule on the request that annulment of the contested acts take immediate effect.
Costs
93 Under Article 87(2) 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. Furthermore, under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment the costs are to be in the discretion of the Court. In the present case, since the Council has been largely unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicants.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Annuls the following, in so far as they concern Mr Ali Sedghi and Mr Ahmad Azizi:
– Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran;
– Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran;
– Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010;
2. Declares that there is no need to adjudicate on the remainder of the action;
3. Orders the Council of the European Union to pay the costs.
Kanninen | Pelikánová | Buttigieg |
Delivered in open court in Luxembourg on 4 June 2014.
[Signatures]