Case T‑53/12

CF Sharp Shipping Agencies Pte Ltd

v

Council of the European Union

(Common foreign and security policy — Restrictive measures taken against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Actions for annulment — Duty to state reasons)

Summary — Judgment of the General Court (Fourth Chamber), 26 October 2012

1.      Proceedings — Decision or regulation replacing the contested measure in the course of proceedings — New factor — Adaptation of initial forms of order sought and pleas in law — Time-limit — Applicability of the time limit laid down for instituting an action for annulment — Exception — Conditions

(Art. 263, sixth para., TFEU)

2.      Acts of the institutions — Statement of reasons — Obligation — Scope — Regulation concerning the adoption of restrictive measures against Iran — Freezing of funds of persons, entities or bodies engaged in or supporting nuclear proliferation — Minimum requirements

(Art. 296, second para., TFEU; Council Regulations No 961/2010, Art. 36(3), and No 267/2012, Art. 46(3))

3.      Actions for annulment — Judgment annulling a measure — Effects — Annulment of a regulation concerning the adoption of restrictive measures against Iran — Annulment of regulation to take effect only as from the date of expiry of the period for bringing an appeal or from the date of dismissal of the appeal

(Arts 280 TFEU and 288 TFEU; Statute of the Court of Justice, Arts 56, first para., and 60, second para.; Council Regulations No 961/2010, Annex VIII, and No 267/2012, Art. 51, second para., and Annex IX)

1.      When 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.

Such an adaptation of claims must be made within the two-month time period provided for in the sixth paragraph of Article 263 TFEU which is, in principle, as applicable when the action for annulment of a measure is brought by application as when, in the course of a pending case, it is made through an adaptation of the claims for annulment of an earlier measure which has been repealed and replaced by the measure in question.

However, by way of an exception to that rule, that period is not applicable in proceedings in which, first, the act in question and the measure which that act repeals and replaces have, with regard to the person concerned, the same subject-matter, are essentially based on the same grounds and have essentially the same content, and therefore differ only by reason of their respective scopes of application ratione temporis and, second, the adaptation of the claim is not based on any new plea, fact or evidence apart from the actual adoption of the act in question repealing and replacing that earlier act.  In such circumstances, since the subject-matter and context of the dispute as established by the original action have not undergone any alteration except as regards its temporal dimension, legal certainty is in no way affected by the fact that the adaptation of the claim was made after the two-month period in question had expired.

(see paras 25-26, 28-29)

2.      The obligation to state reasons for an act adversely affecting a person constitutes an essential principle of European Union law which may be derogated from only for compelling reasons. The statement of reasons must therefore in principle be notified to the person concerned at the same time as the act adversely affecting him and a failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the act during the proceedings before the Courts of the European Union.

As regards an act such as Regulation No 267/2012 concerning restrictive measures against Iran, unless there are compelling reasons relating to the security of the European Union or its Member States or the conduct of their international relations which preclude the disclosure of certain elements, the Council is required to inform an entity against which restrictive measures are directed of the actual and specific reasons why they had to be adopted. It must therefore state the facts and paragraphs of law on which the legal justification of the measure depend and the considerations which led the Council to adopt it.

(see paras 35-36)

3.      In accordance with the second paragraph of Article 60 of the Statute of the Court of Justice, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void, take effect only from the date of expiry of the period referred to in the first paragraph of Article 56 of the Statute or, if an appeal has been brought within that period, as from the date of dismissal of the appeal.

Regulation No 267/2012 concerning restrictive measures against Iran, including Annex IX thereto, is of the same nature as a regulation, since the second paragraph of Article 51 thereof provides that it is to be binding in its entirety and directly applicable in all Member States, which corresponds to the effects of a regulation as provided for in Article 288 TFEU. It follows that that regulation cannot be annulled with immediate effect.

(see paras 48-50)