JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
6 September 2013 (*)
(Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Action for annulment – Time-limit for amendment of the form of order sought – Admissibility – Obligation to state reasons – Manifest error of assessment)
In Case T‑110/12,
Iranian Offshore Engineering & Construction Co., established in Tehran (Iran), represented by J. Viñals Camallonga, L. Barriola Urruticoechea and J. Iriarte Ángel, lawyers,
applicant,
v
Council of the European Union, represented by P. Plaza García, V. Piessevaux and G. Ramos Ruano, 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), and, secondly, 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), and of 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 applicant,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová, President, K. Jürimäe and M. van der Woude (Rapporteur), Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 5 March 2013,
gives the following
Judgment (1)
...
Procedure and form of order sought
8 By application lodged at the Court Registry on 27 February 2012, the applicant brought the present action.
9 By separate document lodged at the Court Registry on 1 February 2013, the applicant submitted an application for interim measures seeking the suspension of operation of the contested measures, in so far as they concern the applicant, until the Court had ruled on the action in the main proceedings. By order of 11 March 2013, the President of the General Court dismissed that application (Case T‑110/12 R Iranian Offshore Engineering & Construction v Council [2013] ECR).
10 By way of measures of organisation of procedure, the Court called on the Council to reply in writing to a number of questions. The Council complied with that request within the prescribed period.
11 The applicant claims that the Court should:
– annul Article 1 of Decision 2011/783 and Article 1 of Implementing Regulation No 1245/2011, in so far as they concern the applicant;
– remove its name from the annexes referred to by those articles;
– order the Council to pay the costs.
12 In the reply lodged on 19 July 2012, the applicant requested permission to amend the form of order sought, claiming that the Court should also annul Regulation No 267/2012, in so far as it concerns the applicant.
13 The Council contends that the Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
14 At the hearing, the applicant explained that its second head of claim was, in fact, indissociable from the first. Furthermore, the applicant was authorised by the Court to submit several new documents, of which the Council received a copy. The Council did not oppose the inclusion of those documents in the file. The Court decided to reserve its decision on the inclusion of those documents in the file, pending the final judgment.
Law
Request to amend the form of order sought
15 In the reply, the applicant requested permission to amend the form of order originally sought so that its action also seeks the annulment of Regulation No 267/2012, adopted after the action was brought, in so far as it concerns the applicant.
16 According to the case-law, when a decision or a regulation of direct and individual concern to an individual 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. It would be contrary to the principle of due administration of justice and to the requirements of procedural economy to oblige the applicant to make a fresh application. Moreover, it would be inequitable if the institution in question were able, in order to counter criticisms of a measure, contained in an application to the Courts of the European Union, to amend the contested measure or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending his original pleadings to the later measure or of submitting supplementary pleadings directed against that measure (see Case T‑256/07 People’s Mojahedin Organization of Iran v Council [2008] ECR II‑3019, paragraph 46 and the case-law cited).
17 However, in order to be admissible, a request to amend the form of order sought must be lodged within the time-limit for bringing proceedings provided for in the sixth paragraph of Article 263 TFEU. According to settled case-law, that time‑limit is mandatory and must be applied by the Courts of the European Union in such a way as to safeguard legal certainty and equality of persons before the law (see, to that effect, Case C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paragraph 101). It is, therefore, for the Courts to ascertain, if necessary of their own motion, whether that time-limit has been observed (order of 11 January 2012 in Case T-301/11 Ben Ali v Council, not published in the ECR, paragraph 16).
18 As regards the calculation of the time-limit for bringing an action, it should 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. In accordance with Article 102(1) of the Rules of Procedure of the General Court, where the period of time allowed for commencing proceedings against a measure adopted by an institution runs from the publication of that measure, that period is to run from the end of the 14th day after publication of the measure in the Official Journal of the European Union. In accordance with the provisions of Article 102(2) of those rules, that period must also be extended on account of distance by a single period of 10 days.
19 Furthermore, according to the case-law, the principle of effective judicial protection means that the European Union authority which adopts individual restrictive measures against a person or entity, as in the present case, 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 they have been adopted, in order to enable those persons or entities to exercise their right to bring an action (see, to that effect, Case C‑548/09 P Bank Melli Iran v Council [2011] ECR I‑11381, paragraph 47 and the case-law cited).
20 In the present case, that principle is further given specific effect by Article 24(3) of Decision 2010/413, Article 36(3) of Regulation No 961/2010 and Article 46(3) of Regulation No 267/2012 which provide that the Council is to communicate its decision, including the grounds for their inclusion 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.
21 It follows that the time-limit for bringing annulment proceedings against an act imposing restrictive measures against a person or entity starts to run only from the date of the individual communication of that act to the party concerned, if the address is known, or from the date of the publication of a notice in the Official Journal of the European Union, if not. Similarly, the time-limit for the submission of an application seeking to extend the claims and pleas in law to an act which repeals and replaces the contested act imposing the restrictive measures, and which maintains those measures, begins to run only from the date of the individual communication of that new act to the person or the entity concerned, if the address is known, or from the date of the publication of a notice in the Official Journal, if individual communication is impossible.
22 In the present case, the applicant claims that Regulation No 267/2012 was not communicated to it immediately after its adoption, on 23 March 2012, which the Council does not dispute. At the hearing, however, the Council pointed out, without being contradicted by the applicant, that Regulation No 267/2012 had been notified to the applicant on 11 December 2012, after the Council had decided to maintain the applicant’s inclusion in the list of persons and entities covered by the restrictive measures, following a review thereof in accordance with Article 46(6) of that regulation.
23 In those circumstances, the two-month time-limit, provided for in the sixth paragraph of Article 263 TFEU, for bringing an action against the new decision to maintain the applicant’s listing in Annex IX to Regulation No 267/2012 started to run on 12 December 2012, and expired, in accordance with Article 102(2) of the Rules of Procedure, on 21 February 2013.
24 In so far as the applicant became aware of the adoption of Regulation No 267/2012 before it was notified, and submitted its request to amend its claims on 19 July 2012, that request cannot be considered to be out of time.
25 At the hearing, however, the Council raised a plea of inadmissibility against that request, in so far as it is based on a new plea, alleging a manifest error of assessment of the facts, which modifies the subject-matter and context of the proceedings, as they had been defined in the application.
26 Since the request to amend the form of order sought was submitted within the prescribed period, it is admissible, even though, as the Council maintains, the plea supporting that request and alleging a manifest error of assessment is new.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Annuls Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran in so far as it included the name of Iranian Offshore Engineering & Construction Co. in Annex II to Decision 2010/413/CFSP;
2. Annuls Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran in so far as it included the name of Iranian Offshore Engineering & Construction Co. 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;
3. Annuls Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 in so far as it concerns Iranian Offshore Engineering & Construction Co.;
4. Orders the effects of Decision 2010/413, as amended by Decision 2011/783, to be maintained as regards Iranian Offshore Engineering & Construction Co, from its entry into force, on the 20th day following its publication in the Official Journal of the European Union, until the annulment in part of Regulation No 267/2012 takes effect;
5. Orders the Council of the European Union to bear its own costs and to pay the costs incurred by Iranian Offshore Engineering & Construction Co., in the present proceedings and in the proceedings for interim measures.
Pelikánová | Jürimäe | Van der Woude |
Delivered in open court in Luxembourg on 6 September 2013.
[Signatures]