ORDER OF THE GENERAL COURT (Seventh Chamber)
20 January 2015 (*)
(Action for annulment — Common Foreign and Security Policy — Restrictive measures against Iran — Freezing of assets — Period allowed for commencing proceedings — Starting point of the period — Manifest inadmissibility)
In Case T‑6/13,
Naftiran Intertrade Co. (NICO) Sàrl, established in Pully (Switzerland), represented by J. Grayston, Solicitor, G. Pandey, P. Gjørtler, D. Rovetta, D. Sellers and N. Pilkington, lawyers,
applicant,
v
Council of the European Union, represented by M. Bishop and I. Rodios, acting as Agents,
defendant,
APPLICATION for annulment in part of Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 282, p. 58) and of Implementing Regulation (EU) No 945/2012 of 15 October 2012 implementing Regulation (EU) No 267/2012 on restrictive measures against Iran (OJ 2012 L 282, p. 16) in so far as the applicant’s name was included on the list of persons and entities to which those restrictive measures apply,
THE GENERAL COURT (Seventh Chamber),
composed of M. van der Woude (Rapporteur), President, I. Wiszniewska-Białecka and I. Ulloa Rubio, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, Naftiran Intertrade Co. (NICO) Sàrl, is established in Switzerland.
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), Annex II of which lists the persons and entities — other than those designated by the UN Security Council or by the Sanctions Committee established pursuant to Resolution 1737 (2006), referred to in Annex I thereto — whose assets have been frozen. In the context of the Treaty on the Functioning of the European Union, the Council adopted on 23 March 2012, Regulation (EU) No 267/2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1).
3 On 15 October 2012, the Council adopted Decision 2012/635/CFSP amending Decision 2010/413 (OJ 2012 L 282, p. 58; ‘the contested decision’). Article 2 of the contested decision listed the applicant’s name at point I B 24 of Annex II to Decision 2010/413, including it on the list of ‘Persons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of Iran’.
4 Consequently, the same day, the Council adopted Implementing Regulation (EU) No 945/2012 implementing Regulation (EU) No 267/2012 (OJ 2012 L 282, p. 16; ‘the contested regulation’). Article 1 of the contested regulation listed the applicant’s name at point I B 24 of Part ‘B. Entities’ of Annex IX to Regulation No 267/2012, including it in the list of ‘Persons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of Iran’.
5 On 16 October 2012, the Council also published a notice in respect of the restrictive measures provided for in Decision 2010/413, as implemented by the contested decision, and in Regulation (EU) No 267/2012, as implemented by the contested regulation (OJ 2012 C 312, p. 21).
Procedure and forms of order sought by the applicant
6 By application lodged at the Registry of the General Court on 8 January 2013, the applicant brought the present action.
7 The applicant claims that the Court should:
– annul the contested decision and the contested regulation;
– order the Council to pay the costs.
8 The Council contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
9 By order of the President of the Fourth Chamber of the General Court of 3 September 2013, after hearing the parties, the proceedings were suspended and then reopened following delivery of the judgment of 16 July 2014 in National Iranian Oil Company v Council (T‑578/12, EU:T:2014:678).
10 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the present case was accordingly allocated.
11 Pursuant to Article 64 of its Rules of Procedure, the Court adopted a measure of organisation of procedure requesting the parties to answer questions relating to the admissibility of the action and the effect of judgment in National Iranian Oil Company v Council, paragraph 9 above (EU:T:2014:678), on the present dispute.
Law
12 Under Article 111 of the Rules of Procedure, where the action is manifestly inadmissible, the Court may, by reasoned order, give a decision on the action without taking further steps in the proceedings.
13 In the present case, the Court considers that there is sufficient information in the documents before it and has decided, pursuant to Article 111 of the Rules of Procedure, to give a decision on the action without taking further steps in the proceedings.
14 Under the sixth paragraph of Article 263 TFEU, proceedings for annulment must be instituted within two months of the publication of the measure, or of its notification to the applicant or, in the absence thereof, of the day on which it came to the latter’s knowledge, as the case may be.
15 According to case-law, that time-limit for bringing proceedings is mandatory and must be applied by the Court in such a way as to safeguard legal certainty and equality of persons before the law (judgment of 18 January 2007 in PKK and KNK v Council, C‑229/05 P, ECR, EU:C:2007:32, paragraph 101). It is thus for the Court to verify, if necessary of its own motion, whether that time-limit has been observed (see judgment of 23 April 2013 in Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, ECR, EU:C:2013:258, paragraph 53).
16 In the present case, the Council sent a letter to the applicant notifying it of the contested measures on 16 October 2012. That letter was received by the applicant on 19 October 2012, as is apparent from the acknowledgement of receipt produced by the Council. This is undisputed by the applicant.
17 It must therefore be found that the contested decision and the contested regulation were communicated directly to the applicant on 19 October 2012. As the period for bringing proceedings began to run on that date, and taking into account the extension of ten days on account of distance provided for in Article 102(2) of the Rules of Procedure, it expired on 31 December 2013, that is to say before the lodging of the application for annulment on 8 January 2013.
18 However, in its reply to the Court’s questions, the applicant claimed that the present action had been brought within the prescribed time-limit, on the basis of three arguments.
19 First, the applicant claims that the publication of the contested measures in the L-series of the Official Journal of the European Union constitutes a fundamental condition of their entry into force, so that the procedural rights for the persons and entities concerned resulting from that publication cannot be restricted by an earlier individual notification. The reduction of the period for bringing proceedings by such notification is contrary to the purpose of the obligation to notify, which is specifically intended to prevent the applicants’ procedural rights from being restricted. In the present case, the Council’s letter of 16 October 2012 aimed to communicate to the applicant the grounds for its inclusion, and not the listing measure as such.
20 Secondly, the applicant claims that when the communication of the grounds for the inclusion has been carried out by means of the publication of a notice in the C-series of the Official Journal, the period for bringing proceedings begins to run on the date of that publication and cannot be reduced by an earlier individual notification.
21 According to the applicant, in so far as the contested measures were published in the C-series of the Official Journal of 16 October 2012, the time-limit for bringing proceedings did not expire until 9 January 2013, in accordance with the provisions of Article 102(1) and (2) of the Rules of Procedure.
22 Thirdly, the applicant requests, in the alternative, leave to bring proceedings out of time because of the legal uncertainty regarding calculation of the time-limit for bringing proceedings when the present action was brought. Furthermore, according to the applicant, the Council created confusion by communicating the measures at issue individually and, at the same time, publishing a notice in the Official Journal. Indeed, when an action was brought, the Council did not consider it to be late.
23 The applicant’s line of argument cannot be accepted.
24 As regards the applicant’s first argument, it must be noted that, in fact, the Court of Justice pointed out, at paragraph 57 of the judgment in Gbagbo and Others v Council, paragraph 15 above (EU:C:2013:258), that, with respect to acts adopted on the basis of provisions relating to the common foreign and security policy, such as the contested decision and the contested regulation, 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.
25 Having regard to those particular features and the resulting publication and communication regime, the sixth paragraph of Article 263 TFEU would not be applied consistently if, when applied to persons and entities who are named in the lists contained in the annexes to those measures, the starting point for the calculation of the period for bringing an action for annulment was, for those persons, fixed as the date of publication of the measure at issue and not as the date when that measure was communicated to them. The purpose of that communication is precisely to ensure that persons to whom the measures are addressed are able to defend their rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in their applying to the Courts of the European Union (judgment in Gbagbo and Others v Council, paragraph 15 above, EU:C:2013:258, paragraph 58).
26 It follows that while, admittedly, the entry into force of measures such as the contested decision and the contested regulation is effected by their publication, the period for the bringing of an action for the annulment of those measures under the fourth paragraph of Article 263 TFEU runs, for each of those persons and entities, from the date of the communication which they must receive (judgments in Gbagbo and Others v Council, paragraph 15 above, EU:C:2013:258, paragraph 59; and of 3 July 2014 in Sorinet Commercial Trust Bankers v Council, T‑157/13, EU:T:2014:606, paragraph 38).
27 Thus, the case-law cited at paragraphs 25 to 26 above expressly provides that the period for the bringing of an action does not begin to run from the date when a listing measure has been published in the L-series of the Official Journal.
28 As regards the applicant’s second argument regarding the publication of a notice in the C-series of the Official Journal, (see paragraph 20 above), it must be pointed out that the time-limit for bringing annulment proceedings against an act imposing restrictive measures against a person or entity starts to run either 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, if it was impossible directly to communicate that act to the party concerned (judgments in Sorinet Commercial Trust Bankers v Council, EU:T:2014:606, paragraph 37, and of 3 July 2014 in Sharif University of Technology v Council, T‑181/13, EU:T:2014:607, paragraph 30).
29 The Council is not free to choose arbitrarily the means of communication of those measures to the persons concerned. It is obliged, in principle, to communicate them directly to those persons. It is only if it is not possible to communicate directly that it may discharge its communication obligation by publishing a notice in the Official Journal. To conclude otherwise would, de facto, allow the Council a convenient means of evading its obligation to effect individual communication (see, to that effect, judgments in Gbagbo and Others v Council, paragraph 15 above, EU:C:2013:258, paragraph 61; Sorinet Commercial Trust Bankers v Council, paragraph 26 above, EU:T:2014:606, paragraph 38, and Sharif University of Technology v Council, paragraph 26 above, EU:T:2014:607, paragraph 31).
30 Therefore, when the Council is able to communicate the listing measures directly to the persons and entities concerned, the period for the bringing of an action cannot begin to run from the date of the indirect communication of those measures through the publication of a notice in the Official Journal without infringing the right of those persons and entities to effective judicial protection.
31 In those circumstances, when a listing measure has been notified to its addressee, under the sixth paragraph of Article 263 TFEU, the period within which proceedings must be brought begins to run at the end of the day of the notification (judgment of 15 January 1987 in Misset v Council, 152/85, EU:C:1987:10, paragraph 7).
32 It must be recalled that the strict application of procedural rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see judgment in Gbagbo and Others v Council, paragraph 15 above, EU:C:2013:258, paragraph 71).
33 Therefore, contrary to the applicant’s claims (see paragraph 21 above), the fact that some of the restrictive measures were published immediately in a notice in the Official Journal cannot confer procedural rights on the persons and entities concerned to whom those measures were already communicated individually, and cannot enable them to choose the starting point of the period for bringing proceedings by opting for the date of the publication of the notice, increased by fourteen days, in accordance with Article 102(1) of the Rules of Procedure.
34 In the present case, as the contested decision and the contested regulation were communicated directly to the applicant, at its address, the period for bringing proceedings started to run in respect of applicant from the date of that communication.
35 As regards the applicant’s third argument, put forward in the alternative (see paragraph 23 above), it must be pointed out that, according to the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union ‘[n]o right shall be prejudiced in consequence of the expiry of a time-limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure’. In accordance with the sixth paragraph of Article 263 TFEU and Article 45 of the Statute of the Court of Justice, it is for the party concerned to establish, first, that abnormal circumstances, unforeseeable and outside his control, made it impossible for him to comply with the time-limit for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU and, secondly, that he could not guard against the consequences of those circumstances by taking appropriate steps without making unreasonable sacrifices (see judgment in Gbagbo and Others v Council, paragraph 15 above, EU:C:2013:258, paragraph 72).
36 However, in the present case, the applicant has not invoked any particular circumstance which was such as to prevent it from bringing its action in a timely manner.
37 First, when that action was brought, the obligation to communicate the listing measures directly to the persons and entities concerned had clearly been demonstrated by the Court of Justice in paragraphs 47 and 52 of the judgment of 16 November 2011 in Bank Melli Iran v Council (Case C‑548/09 P, ECR, EU:C:2011:735) in relation to the right to effective judicial protection. That judgment upheld the judgment of 14 October 2009 in Bank Melli Iran v Council (T‑390/08, ECR, EU:T:2009:401, paragraph 87), in which the General Court held, in essence, that the restrictive measures were in the nature of individual measures in relation to the persons and entities concerned, and thus those persons or entities had to be notified when their address was known. The General Court, inter alia, observed that ‘the fact that individual notification proves impossible in certain cases is without prejudice to the interest of those [persons and entities] in receiving such notification and is therefore irrelevant in those cases in which the address of the entity concerned is known’.
38 Admittedly, the highlighting, in the judgments cited in paragraph 37 above, of a duty of individual notification did not form part of an assessment of the time-limit for bringing an action.
39 However, notably in the light of the arguments in paragraphs 41 to 44 of the Opinion of Advocate General Mengozzi in Bank Melli Iran v Council (C‑548/09 P, ECR, EU:C:2011:426), it was apparent from the judgment in Bank Melli Iran v Council, paragraph 15 above (EU:C:2011:735), that acts adopting restrictive measures have a hybrid nature. The Court of Justice found, first, that in so far as the measure or those acts had effects vis-à-vis third parties, they had the nature of a regulation. Consequently, for their entry into force, Article 254(1) and (2) EC did not require such a measure to be notified, but to be published in the Official Journal (judgment in Bank Melli Iran v Council, paragraph 15 above, EU:C:2011:735, paragraphs 45 and 46). Secondly, the Court explicitly confirmed the existence of a duty of individual notification, in relation to the right to effective judicial protection (see paragraph 37 above). The Court thus established a clear distinction between publication of listing measures, as a precondition for their entry into force, and notification of the measures to the persons and entities concerned which was intended to ensure their procedural rights, in particular their right to an effective remedy.
40 In that context, the applicant cannot rely on the argument that the starting point of the period for bringing proceedings was not foreseeable as justification for not having the date when the period for bringing proceedings expires invoked against it. It was expressly stated in the Council’s letter of 16 October 2012 that its purpose was to notify the applicant of the restrictive measures adopted in its regard. In addition, and in any event, even if in doubt, it was for the applicant to proceed with prudence and diligence following receipt of the Council’s letter of 16 October 2012 by taking into consideration the date of the receipt of that letter, that is 19 October 2012, as the starting point of the period for bringing proceedings, in order to protect itself against the risk of an action brought out of time.
41 Secondly, contrary to the applicant’s claims, the immediate publication of a notice in the Official Journal, at the same time as the notification of the contested measures to the applicant, was not such as to create confusion, thus preventing the applicant from understanding that, by its letter of 16 October 2012, the Council directly communicated to the applicant its decision to include it on the list of persons and entities in Annex II to Decision 2010/413 and in Annex IX to Regulation No 267/2012, as expressly stated in that letter. Furthermore, the applicant could be misled even less, as regards the nature of that letter, by the publication of the notice, since the contested decision and contested regulation were not concerned solely with the applicant, but also concerned other persons and entities without ties to the applicant.
42 Thirdly, the fact that the Council did not raise the argument that the action was out of time following the lodging of the application, but only in its reply to a written question put by the Court on that point, is irrelevant. Since the time-limit for the bringing of an action is a matter of public policy, it is not at the disposition of the parties or the Court, which is authorised to verify, of its own motion, whether that time-limit has been observed (see paragraph 15 above).
43 It follows that the applicant has not established the existence of unforeseeable circumstances beyond its control which prevented it from bringing the present action within the period provided for in the sixth paragraph of Article 263 TFEU.
44 It follows from all the foregoing considerations that the present action is out of time. It must therefore be dismissed as manifestly inadmissible.
Costs
45 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 applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Council.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders as follows:
1. The action is dismissed.
2. Naftiran Intertrade Co. (NICO) Sàrl is ordered to bear its own costs and to pay the costs incurred by the Council of the European Union.
Luxembourg, 20 January 2015.
E. Coulon | | M. van der Woude |