JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
5 December 2012 (*)
(Common foreign and security policy – Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Action for annulment – Obligation to state reasons – Manifest error of assessment)
In Case T‑421/11,
Qualitest FZE, established in Dubai (United Arab Emirates), represented by L. Catrain González, lawyer, and E. Wright and H. Zhu, Barristers,
applicant,
v
Council of the European Union, represented by G. Marhic and R. Liudvinaviciute-Cordeiro, acting as Agents,
defendant,
supported by
European Commission, represented by S. Boelaert and T. Scharf, acting as Agents,
intervener,
APPLICATION for annulment in part of Council Decision 2011/299/CFSP of 23 May 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 136, p. 65), of Council Implementing Regulation (EU) No 503/2011 of 23 May 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 136, p. 26) 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),
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and M. van der Woude, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 19 June 2012,
gives the following
Judgment
Background to the dispute
1 The applicant, Qualitest FZE, is a company established in the United Arab Emirates specialising in the supply of quality control and testing equipment for checking the physical properties of raw materials.
2 On 26 July 2010, the Council of the European Union adopted Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39). Article 20(1) of Decision 2010/413 provides that the funds and economic resources of the persons and entities listed in Annexes I and II to that decision are to be frozen.
3 On 25 October 2010, following the adoption of Decision 2010/413, the Council adopted Regulation (EU) No 961/2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1). Article 16(2) of Regulation No 961/2010 provides that the funds and economic resources of the persons, entities and bodies listed in Annex VIII to that regulation are to be frozen.
4 On 23 May 2011, the Council adopted Decision 2011/299/CFSP amending Decision 2010/413 (OJ 2011 L 136, p. 65), whereby, inter alia, it added the applicant to the list of persons and entities set out in Annex II to Decision 2010/413.
5 On the same date, the Council adopted Implementing Regulation (EU) No 503/2011 implementing Regulation No 961/2010 (OJ 2011 L 136, p. 26), whereby, inter alia, it added the applicant’s name to the list set out in Annex VIII to Regulation No 961/2010.
6 By letter of 24 May 2011, the Council informed the applicant that it had been entered on the list of persons and entities set out in Annex II to Decision 2010/413 and Annex VIII to Regulation No 961/2010, following the adoption of Decision 2011/299 and Implementing Regulation No 503/2011.
7 In Decision 2011/299 and Implementing Regulation No 503/2011, the Council stated the following reason for the freezing of the applicant’s funds and economic resources:
‘Involved in procurement of components for Iranian nuclear programme.’
8 By letter of 29 July 2011, the applicant requested the Council to state the reasons for the applicant’s inclusion on the list in Annex VIII to Regulation No 961/2010 and to remove it from that list.
9 By letter of 3 August 2011, the Council acknowledged receipt of the letter of 29 July 2011. By letter of 5 December 2011, it informed the applicant of its decision to maintain the applicant on the lists of entities subject to restrictive measures.
10 On 23 January 2012, the Council adopted Decision 2012/35/CFSP amending Decision 2010/413 (OJ 2012 L 19, p. 22). By that decision, the Council reinforced the restrictive measures imposed by the European Union against Iran and added persons and entities to the list set out in Annex II to Decision 2010/413.
11 On 23 March 2012, the Council adopted Regulation (EU) No 267/2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010 (OJ 2012 L 88, p. 1). By that regulation, the Council took note of the strengthening of the restrictive measures by Decision 2012/35. Article 23(2) of Regulation No 267/2012 provides that the funds and economic resources of the persons, entities and bodies listed in Annex IX to that regulation are to be frozen. The applicant’s name is listed in Annex IX to Regulation No 267/2012.
12 In Regulation No 267/2012, the reason put forward by the Council for the freezing of the applicant’s funds and economic resources is identical to that put forward in Decision 2011/299 and Implementing Regulation No 503/2011, namely that it is ‘[i]nvolved in procurement of components for Iranian nuclear programme.’
Procedure and forms of order sought by the parties
13 By application lodged at the Court Registry on 6 August 2011, the applicant brought the present action.
14 By separate document lodged at the Court Registry on the same date, the applicant submitted an application for the case to be decided under an expedited procedure, pursuant to Article 76a of the Rules of Procedure of the General Court. By decision of 22 November 2011, the Court (Fourth Chamber) refused to grant that application.
15 By document lodged at the Court Registry on 14 October 2011, the European Commission sought leave to intervene in the present proceedings in support of the form of order sought by the Council.
16 By order of 22 November 2011, the President of the Fourth Chamber of the Court granted leave to intervene.
17 The parties presented oral argument and replied to the Court’s oral questions at the hearing on 19 June 2012.
18 The applicant claims that the Court should:
– annul Decision 2011/299 and Implementing Regulation No 503/2011 in so far as those measures affect the applicant;
– order the Council to pay the costs.
19 At the hearing, the applicant adapted its claims to also seek annulment of Regulation No 267/2012 in so far as that measure affects it.
20 The Council, supported by the Commission, contends that the Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
Admissibility of the adaptation of the applicant’s claims
21 As is clear from paragraph 11 above, since the application was lodged Regulation No 961/2010 has been repealed and replaced by Regulation No 267/2012. At the hearing, the applicant adapted its initial claims so that the action seeks annulment of Decision 2011/299, Implementing Regulation No 503/2011 and Regulation No 267/2012 (together, ‘the contested measures’).
22 It is to be borne in mind in this connection that, when a decision or a regulation of direct and individual concern to an applicant is replaced, during the proceedings, by another measure with the same subject-matter, this is to be considered a new factor allowing that applicant to adapt his 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 brought before the European Union judicature against that measure, 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, 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).
23 As regards the period during which such an adaptation of claims may be made, the Court considers that the two-month period provided for in the sixth paragraph of Article 263 TFEU is, in principle, applicable both when proceedings for annulment of a measure are brought by application and when, in the course of a pending case, they are brought by adaptation of the claims for annulment of an earlier measure which has been repealed and replaced by the measure in question.
24 This outcome is justified by the fact that rules concerning time-limits for bringing proceedings are mandatory and must be applied by the court in question in such a way as to safeguard legal certainty and equality of persons before the law (Case C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paragraph 101), whilst avoiding any discrimination or arbitrary treatment in the administration of justice (Case 152/85 Misset v Council [1987] ECR 223, paragraph 11).
25 However, by way of an exception to that principle, the Court considers that that period is not applicable in the course of proceedings when, first, the measure in question and the measure which it repeals and replaces have, with regard to the person concerned, the same object, are essentially based on the same grounds and have essentially the same content, and therefore differ only by reason of their respective fields of application ratione temporis, and second, the adaptation of the claims is not based on any new plea, fact or evidence apart from the actual adoption of the measure in question repealing and replacing that earlier measure.
26 In such circumstances, since the subject-matter and framework 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 claims were adapted after the two-month period in question had expired.
27 It follows that, in the circumstances described in paragraph 25 above, an applicant may adapt his claims and pleas in law, even if the adaptation is made after the two-month period provided for in the sixth paragraph of Article 263 TFEU has expired.
28 In the present case, since all the requirements set out in paragraph 25 above are satisfied, the Court finds that the applicant may seek annulment of Regulation No 267/2012, in so far as that measure concerns the applicant.
Substance
29 In support of its action, the applicant raises three pleas in law. It alleges, first, breach of the obligation to state reasons, second, breach of the rights of the defence and, third, a manifest error of assessment, in breach of Article 16(2)(a) of Regulation No 961/2010.
First plea in law: breach of the obligation to state reasons
30 The applicant claims, in essence, that the Council has breached the obligation to state reasons since, first, it put forward no actual and specific reason, or any evidence, to justify the applicant’s inclusion on the list of persons and entities affected by the restrictive measures. The justification which it put forward in the contested measures is a mere reference to the legal conditions for the application of the restrictive measures. Second, there is no compelling reason why the Council should not disclose to the applicant the actual and specific reasons for the applicant’s inclusion in Annex VIII to Regulation No 961/2010.
31 The Council, supported by the Commission, disputes the merits of the applicant’s arguments. In particular, it states that the contested measures include abundant information concerning the circumstances in which they were adopted, enabling the applicant to understand the scope of the measures adopted against it. In this respect, it refers, in the defence, to the sale by the applicant’s shareholder of a scanning electron microscope in 2005 as well as to a newspaper article from July 2010 according to which illegal shipments linked to nuclear proliferation were seized in the United Arab Emirates. In the rejoinder, it also refers to a report of November 2011 of the Director General of the International Agency for Atomic Energy (IAEA) showing that the context in which the applicant was placed on the lists of entities subject to the restrictive measures was a concern for the international community, as well as to information communicated by a Member State of the European Union stating that the company M. had instructed a research centre to purchase a universal hardness tester from the applicant.
32 It must be borne in mind that, according to the case-law, the purpose of the obligation to state the reasons for an act adversely affecting a person, as provided for by the second paragraph of Article 296 TFEU, Article 24(3) of Decision 2010/413, Article 36(3) of Regulation No 961/2010 and Article 46(3) of Regulation No 267/2012, is, first, to provide the person concerned with sufficient information to make it possible to determine whether the act is well founded or whether it is vitiated by an error which may permit its validity to be contested before the European Union judicature and, secondly, to enable the latter to review the lawfulness of that act. The obligation to state reasons thus laid down constitutes an essential principle of European Union law which may be derogated from only for compelling reasons. Furthermore, the statement of reasons must, 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 of the reasons for the act during the proceedings before the European Union judicature (see, to that effect, Case T‑390/08 Bank Melli Iran v Council [2009] ECR II‑3967, paragraph 80 and the case-law cited).
33 Unless, therefore, overriding considerations to do with the security of the European Union or of its Member States or with the conduct of their international relations militate against the communication of certain matters, the Council is bound, by virtue of Article 24(3) of Decision 2010/413, Article 36(3) of Regulation No 961/2010 and Article 46(3) of Regulation No 267/2012, to apprise the entity covered by a measure adopted under 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, respectively, of the actual and specific reasons why it considers that those provisions apply to it. It must thus state the facts and points of law on which the legal justification of the measure depend and the considerations which led it to adopt it (see, to that effect, Bank Melli Iran v Council, paragraph 32 above, paragraph 81 and the case-law cited). It follows that, according to the case-law, the European Union judicature cannot accept that the statement of reasons may consist merely of a general, stereotypical formulation, modelled on the drafting of the legal provision laying down the conditions for applicability of the measure at issue (see, by analogy, Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II‑4665, paragraph 143).
34 Furthermore, the statement of reasons must be appropriate to the measure 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. In particular, the reasons given for a measure adversely affecting a person are sufficient if it was adopted in circumstances known to that person which enable him to understand the scope of the measure concerning him (see Bank Melli Iran v Council, paragraph 32 above, paragraph 82 and the case-law cited).
35 In the present case, as was stated at paragraphs 7 and 12 above, the Council gave the following reason for the inclusion of the applicant on the lists in Annex I to Decision 2011/299, Annex I to Implementing Regulation No 503/2011 and Annex IX to Regulation No 267/2012:
‘Involved in procurement of components for Iranian nuclear programme.’
36 It must be held, as the applicant claims, that in that statement of reasons the Council merely paraphrased the terms of Article 20(1)(b) of Decision 2010/413, Article 16(2)(a) of Regulation No 961/2010 and Article 23(2)(a) of Regulation No 267/2012, without in any way stating the actual and specific reasons why it considered that those provisions were applicable to the applicant.
37 It is to be noted, in that regard, that Article 20(1)(b) of Decision 2010/413, Article 16(2)(a) of Regulation No 961/2010 and Article 23(2)(a) of Regulation No 267/2012 set out the conditions for inclusion of the name of a natural or legal person on the lists of persons, entities and bodies subject to a measure to freeze funds and economic resources. Those provisions require, in almost identical terms, the freezing of all funds and economic resources belonging to the persons, entities and bodies identified as being engaged in, directly associated with, or providing support for Iran’s proliferation-sensitive nuclear activities or the development of nuclear weapon delivery systems by Iran, including through involvement in the procurement of prohibited goods and technology, or as being owned or controlled by such a person, entity or body, including through illicit means, or as acting on their behalf or at their direction.
38 By mentioning the applicant’s involvement in the procurement of components for the Iranian nuclear programme as the only justification for its inclusion in the lists of entities and natural persons subject to the restrictive measures at issue in the present case, the Council merely stated that the applicant had, within the meaning of Article 20(1)(b) of Decision 2010/413, Article 16(2)(a) of Regulation No 961/2010 and Article 23(2)(a) of Regulation No 267/2012, been involved in the procurement of prohibited goods and technology and failed to explain what factual circumstances had convinced it of such involvement.
39 Accordingly, the statement of reasons in the contested measures is not sufficient to enable, first, the applicant to understand the reasons which led the Council to adopt those measures and, second, the Court to exercise its power of review.
40 That conclusion is confirmed by the contents of the applicant’s pleadings. The application includes denials of a general nature, thus reflecting the fact that the applicant was unaware of the actual and specific allegations of the Council in its regard. On the other hand, the reply is more specific, in so far as in it the applicant responds to the specific factual matters referred to by the Council in the defence. In particular, the applicant responds to the Council mentioning, first, the sale, by its shareholder, of a scanning electron microscope and, second, the fact that numerous illegal shipments linked to nuclear proliferation were seized in the United Arab Emirates, where the applicant is established.
41 Moreover, that conclusion is not called into question by the arguments which the Council, supported by the Commission, raises.
42 First, the Council referred, in its pleadings, to specific facts which, according to it, showed the involvement of the applicant in procurement of components for the Iranian nuclear programme. As has been noted at paragraph 31 above, the Council referred to the sale of a scanning electron microscope by the applicant’s shareholder and, in a general way, to the seizure in the United Arab Emirates of illegal shipments linked to nuclear proliferation. In the rejoinder, the Council also mentioned (i) a report of November 2011 by the Director General of the IAEA, showing that the context in which the applicant was placed on the lists of entities subject to the restrictive measures was a concern for the international community, and (ii) information communicated by a Member State stating that M. had instructed a research centre to purchase a universal hardness tester from the applicant.
43 However, the case-law cited at paragraph 32 above should be remembered, under which the statement of reasons must 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 of the reasons for the act during the proceedings before the European Union judicature.
44 Therefore, the precise justifications put forward by the Council in its pleadings cannot be considered to be an adequate statement of the reasons on which the contested measures are based.
45 Second, the Council claims that, since nuclear proliferation relies on companies such as the applicant which have an international presence, it may be considered that the latter is objectively in an analogous situation to that of the applicant in Case T‑181/08 Tay Za v Council [2010] ECR II‑1965.
46 However, it is necessary to point out that the Court of Justice, on appeal, has set aside the judgment in Tay Za v Council, paragraph 45 above (judgment of 13 May 2012 in Case C‑376/10 P Tay Za v Council, not yet published in the ECR). Therefore, that judgment has been removed from the European Union legal order and the Council cannot legitimately refer to it.
47 Third, the Council refers to the fact that the applicant could, as it invited it to, have submitted supporting documents or substantial evidence to the Council in order that it re-examine its decision, which the applicant failed to do.
48 It is to be noted that, according to the case-law cited at paragraph 32 above, the Council must notify the statement of reasons to the person concerned at the same time as the act adversely affecting him and that obligation may be derogated from only if there are compelling reasons. Accordingly, the fact, if established, that the applicant failed to supply the Council with substantial evidence in order that it re-examine its decision, in accordance with Article 36(4) of Regulation No 961/2010, cannot exempt the Council from the obligation to state the reasons on which the contested measures were based.
49 Therefore, the Council’s argument cannot succeed.
50 In the light of all of the foregoing considerations, the first plea in law must be upheld and the contested measures must be annulled in so far as they affect the applicant.
51 However, the Court considers it appropriate to examine, for the sake of completeness, the third plea in law, alleging manifest error of assessment by the Council contrary to Article 16(2)(a) of Regulation No 961/2010.
Third plea in law: manifest error of assessment, contrary to Article 16(2)(a) of Regulation No 961/2010
52 The applicant maintains, in essence, that the Council made a manifest error of assessment in breach of Article 16(2)(a) of Regulation No 961/2010, since it has provided no evidence of the applicant’s involvement in nuclear proliferation. In the alternative, the applicant claims that the Council made a manifest error of assessment in taking the view that evidence suggested that the applicant had participated in nuclear proliferation, whereas the applicant scrupulously implements the rules on sanctions and does not deal with any Iranian entity.
53 The Council, supported by the Commission, contests the validity of these arguments.
54 A preliminary point to be noted is that, in the light of the fact that the applicant adapted the form of order sought by it, this plea in law must be considered to be alleging not only a manifest error of assessment contrary to Article 16(2)(a) of Regulation No 961/2010 but also a manifest error of assessment contrary to Article 23(2) of Regulation No 267/2012.
55 It must be recalled that, according to the case-law, the judicial review of the lawfulness of an act whereby restrictive measures are imposed on an entity extends to the assessment of the facts and circumstances relied on as justifying it, and to the evidence and information on which that assessment is based. In the event of challenge, it is for the Council to present that evidence and information for review by the European Union judicature (see, to that effect, Bank Melli Iran v Council, paragraph 32 above, paragraphs 37 and 107).
56 In the present case, the Council has not provided any evidence enabling it to be established that the applicant was involved in the procurement of components for the Iranian nuclear programme.
57 That conclusion cannot be called into question by the Council’s arguments.
58 In the first place, the Council states that it has put forward sufficient reasons to justify the inclusion of the applicant on the lists of entities subject to restrictive measures. In that respect, it must be noted, as has been stated at paragraph 31 above, that the Council referred, in its pleadings, to four reasons. Thus, it relies on (i) the sale by the applicant’s shareholder, in 2005, of a scanning electron microscope suited to a range of applications, which is referred to in a newspaper article of 1 February 2005; (ii) the seizure in the United Arab Emirates of illegal shipments linked to nuclear proliferation, which is referred to in a newspaper article of 1 July 2010; (iii) a report of November 2011 by the Director General of the IAEA, showing that the context in which the applicant was placed on the lists of entities subject to the restrictive measures was a concern for the international community, and (iv) information communicated by a Member State of the European Union stating that M. instructed a research centre to purchase a universal hardness tester from the applicant.
59 First, it should be noted that those reasons were not referred to by the Council in the contested measures or during the exchanges with the applicant subsequent to those measures. Under the case-law cited at paragraph 32 above, the statement of reasons must be notified to the person concerned at the same time as the act adversely affecting him.
60 Second, the reasons put forward by the Council in its pleadings are not supported by any evidence.
61 Third, those reasons, even if supported by evidence, are not capable of demonstrating, by themselves, that the applicant was engaged in, directly associated with, or providing support for Iran’s proliferation-sensitive nuclear activities or the development of nuclear weapon delivery systems by Iran, in accordance with Article 20(1)(b) of Decision 2010/413, Article 16(2)(a) of Regulation No 961/2010 and Article 23(2)(a) of Regulation No 267/2012.
62 Indeed, neither the newspaper article of 1 July 2010 concerning the seizure in the United Arab Emirates of illegal shipments linked to nuclear proliferation nor the report of November 2011 of the Director General of the IAEA attesting concern regarding the context can demonstrate the involvement of the applicant in nuclear proliferation activities. It is important to note, in this respect, that those documents do not relate to the personal involvement of the applicant in such activities.
63 Next, the fact that the applicant’s shareholder sold a scanning electron microscope in 2005, even if substantiated by evidence, is not such as to show, in itself, that the applicant was involved in activities referred to in Article 20(1)(b) of Decision 2010/413, Article 16(2)(a) of Regulation No 961/2010 and Article 23(2)(a) of Regulation No 267/2012. The Council has not shown any link between the sale of the microscope and Iran’s nuclear activities. Furthermore, the sale was made by the applicant’s shareholder and it has not put forward any evidence suggesting that the shareholder’s action could be attributed to the applicant. Finally, no restrictive measure had yet been adopted against Iran in 2005, since the United Nations Security Council adopted Resolution 1737 (2006) imposing restrictive measures against Iran on 23 December 2006.
64 Lastly, the fact that M., an entity to which the contested measures apply, instructed a research centre, also covered by those measures, to purchase a universal hardness tester from the applicant, even if supported by evidence, would enable it to be shown that the applicant was involved in activities referred to in Article 20(1)(b) of Decision 2010/413, Article 16(2)(a) of Regulation No 961/2010 and Article 23(2)(a) of Regulation No 267/2012 only if indicia that the applicant had agreed to furnish that tester were also adduced.
65 In the second place, the Council claims that the standard of judicial review in cases such as the present one, which concern the policies of the governing regime of a third country, should be different from that applied in cases concerning persons and entities associated with terrorism.
66 Apart from the fact that the Council does not specify what type of judicial review should apply in the present case, its assertion is not supported by the relevant legislation or the case-law referred to at paragraph 55 above. The assertion must therefore be considered unfounded.
67 In the light of all the foregoing considerations, the third plea in law must be upheld, as must the action in its entirety.
68 As regards the temporal effects of the annulment of the contested measures, it must be noted, as regards both Implementing Regulation No 503/2011 and Regulation No 267/2012, that, under the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void are to take effect only as from the date of expiry of the period for bringing an appeal referred to in the first paragraph of Article 56 of that Statute or, if an appeal has been brought within that period, as from the date of dismissal of the appeal. The Council therefore has a period of two months, extended on account of distance by ten days, from the notification of this judgment to remedy the infringements established by adopting, if appropriate, new restrictive measures with respect to the applicant. In the present case, the risk of serious and irreparable prejudice to the effectiveness of the restrictive measures imposed by Implementing Regulation No 503/2011 and Regulation No 267/2012 does not appear sufficiently great, having regard to the considerable impact of those measures on the applicant’s rights and freedoms, to warrant the maintenance of the effects of those regulations with respect to the applicant for a period exceeding that laid down in the second paragraph of Article 60 of the Statute of the Court of Justice (see, by analogy, judgment of 16 September 2011 in Case T‑316/11 Kadio Morokro v Council, not published in the ECR, paragraph 38).
69 Also, as regards the temporal effects of the annulment of Decision 2011/299, it must be recalled that, under the second paragraph of Article 264 TFEU, the General Court may, if it considers it necessary, state which of the effects of the act which it has declared void are to be considered as definitive. In the present case, if the date when the annulment of Implementing Regulation No 503/2011 and Regulation No 267/2012 takes effect were to differ from the date for Decision 2011/299, that would be liable seriously to jeopardise legal certainty, since those three acts impose on the applicant measures which are identical. The effects of Decision 2011/299 must therefore be maintained as regards the applicant until the annulment of Implementing Regulation No 503/2011 and Regulation No 267/2012 takes effect (see, by analogy, Kadio Morokro v Council, paragraph 68 above, paragraph 39).
Costs
70 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. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
71 Under the first subparagraph of Article 87(4) of the Rules of Procedure, institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Commission shall bear its own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Annuls, in so far as they concern Qualitest FZE:
– Council Decision 2011/299/CFSP of 23 May 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran;
– Council Implementing Regulation (EU) No 503/2011 of 23 May 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. Maintains the effects of Decision 2011/299 as regards Qualitest until the annulment of Implementing Regulation No 503/2011 and Regulation No 267/2012 takes effect;
3. Orders the Council of the European Union to bear its own costs and to pay those incurred by Qualitest;
4. Orders the European Commission to bear its own costs.
Pelikánová | Jürimäe | van der Woude |
Delivered in open court in Luxembourg on 5 December 2012.
[Signatures]
Table of contents
Background to the dispute
Procedure and forms of order sought by the parties
Admissibility of the adaptation of the applicant’s claims
Substance
First plea in law: breach of the obligation to state reasons
Third plea in law: manifest error of assessment, contrary to Article 16(2)(a) of Regulation No 961/2010
Costs