ORDER OF THE GENERAL COURT (Fourth Chamber)
17 June 2013 (*)
(Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Plea of inadmissibility – Lis pendens – Plea of illegality – Removal of the persons concerned from the list – No need to adjudicate)
In Case T‑70/12,
Ali Divandari, residing in Tehran (Iran), represented by S. Zaiwalla, P. Reddy and F. Zaiwalla, Solicitors, M. Brindle QC, and R. Blakeley, Barrister,
applicant,
v
Council of the European Union, represented by M. Bishop and I. Rodios, acting as Agents,
defendant,
APPLICATION for (i) annulment 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 No 961/2010 (OJ 2012 L 88, p. 1), in so far as those measures concern the applicant, and (ii) a declaration that 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) and Article 16(2) of Council Regulation 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) are not to apply to the applicant,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová (Rapporteur), President, K. Jürimäe and M. van der Woude, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, Mr Ali Divandari, is an Iranian national and a member of the Board of Directors of Bank Mellat, an Iranian commercial bank. He is also Chairman of Persia International Bank plc, a United Kingdom commercial bank.
2 On 26 July 2010, the applicant’s name was included in the list of persons and entities involved in 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).
3 Accordingly, pursuant to Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation No 423/2007 (OJ 2010 L 195, p. 25), the applicant’s name was included in the list in Annex V to Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1).
4 On 7 October 2010, the applicant brought an action before the General Court seeking the annulment of Decision 2010/413 and Implementing Regulation No 668/2010, in so far as those measures concerned him. The case number T‑497/10 was assigned to the action.
5 When Regulation No 423/2007 was repealed by Council Regulation (EU) No 961/2010 of 25 October 2010 concerning restrictive measures against Iran (OJ 2010 L 281, p. 1), the applicant’s name was included by the Council of the European Union in Annex VIII to the latter regulation.
6 The inclusion of the applicant’s name in Annex II to Decision 2010/413 and Annex VIII to Regulation No 961/2010 was not affected by the entry into force of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413 (OJ 2011 L 319, p. 71) and Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11).
7 By document lodged at the Registry of the General Court on 6 February 2012, the applicant amended his heads of claim in Case T‑497/10 in order to request the annulment of Decision 2011/783 and Implementing Regulation No 1245/2011, in so far as those measures concerned him.
8 When 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 applicant’s name was included by the Council in Annex IX to the latter regulation.
9 By document lodged at the Court Registry on 4 April 2012, the applicant amended his heads of claim in Case T‑497/10 in order to request the annulment of Regulation No 267/2012, in so far as it concerned him.
10 Under Council Decision 2012/457/CFSP of 2 August 2012 amending Decision 2010/413 (OJ 2012 L 208, p. 18), the applicant’s name was removed from the list in Annex II to Decision 2010/413. Under Council Implementing Regulation (EU) No 709/2012 of 2 August 2012 implementing Regulation No 267/2012 (OJ 2012 L 208, p. 2), the applicant’s name was also removed from the list in Annex IX to Regulation No 267/2012.
11 By Order of the General Court of 14 January 2013 in Case T‑497/10 Divandari v Council, not published in the ECR, the Court held that there was no need to adjudicate on the action in that case, following the removal of the applicant’s name from the lists in Annex II to Decision 2010/413 and Annex IX to Regulation No 267/2012.
Procedure
12 By application lodged at the Court Registry on 17 February 2012, the applicant brought the present action.
13 By document lodged at the Court Registry on 4 April 2012, the applicant amended his heads of claim in the present case in order to request the annulment of Regulation No 267/2012, in so far as it concerned him.
14 By a document dated 2 July 2012, the Council raised a plea of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the General Court, pleading, on the one hand, lis pendens between the application for annulment and the action in Case T‑497/10 and, on the other, the inadmissibility of the application for a declaration of inapplicability.
15 On 20 September 2012, the General Court asked the parties to submit their observations on the likely consequences for the present case of the removal of the applicant’s name from the list in Annex II to Decision 2010/413 and the list in Annex IX to Regulation No 267/2012.
16 By letter of 4 October 2012, the applicant indicated that he was not opposed to the Court taking no further steps in the proceedings, provided that the Council would be ordered to pay the costs.
17 By letter of 5 October 2012, the Council stated that, following the removal of the applicant’s name from the lists in question, there was no need to adjudicate on the action. It asked that each party be ordered to pay its own costs.
Law
Admissibility
18 The Council submits, first, that the application for annulment of Decision 2011/783, Implementing Regulation No 1245/2011 and Regulation No 267/2012 is inadmissible on grounds of lis pendens with regard to Case T‑497/10.
19 The applicant contests the merits of the Council’s arguments.
20 According to case-law, if an action is to be declared inadmissible on grounds of lis pendens three conditions must be met: the action must be between the same parties, seek the same object and do so on the basis of the same submissions (see Joined Cases T‑246/08 and T‑332/08 Melli Bank v Council [2009] ECR II‑2629, paragraph 34 and the case-law cited).
21 In the present case, the main parties to the disputes giving rise to the actions in Case T‑497/10 and the present case are the same. Similarly, both actions seek the same object, since they seek the annulment of the same measures, namely Decision 2011/783, Implementing Regulation No 1245/2011 and Regulation No 267/2012. However, they are not based on the same pleas in law, given in particular that the action in the present case includes a plea, based on the fact that the applicant is no longer Chairman of Bank Mellat, which was not raised in Case T‑497/10. In those circumstances, it cannot be considered, regarding the application for annulment of Decision 2011/783, Implementing Regulation No 1245/2011 and Regulation No 267/2012, that the conditions laid down by case-law for making a declaration of inadmissibility on grounds of lis pendens are met in the present case.
22 Second, the Council argues that the application for a declaration of inapplicability regarding Article 20(1)(b) of Decision 2010/413 and Article 16(2) of Regulation No 961/2010 is inadmissible in so far as it seeks a general declaration confirming that certain legal provisions are not to apply to the applicant.
23 The applicant argues that a general declaration confirming that the legal provisions concerning him are not to apply may be made by the General Court by virtue of Article 277 TFEU. He submits that a declaration of that kind would help to prevent the Council from adopting new restrictive measures on the same basis.
24 In that regard, it should be observed that Article 277 TFEU gives expression to a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision which is being attacked, if that party was not entitled under Article 263 TFEU to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be declared void (see, by analogy, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraph 39).
25 Thus, contrary to what the applicant claims, Article 277 TFEU does not give the Court the power to make general declarations; it enables it only to declare an act to be inapplicable where a party has specifically invoked – and established – the illegality of that act.
26 In the present case, although the applicant is applying for a declaration that Article 20(1)(b) of Decision 2010/413 and Article 16(2) of Regulation No 961/2010 are not to apply to him, he raises no pleas or arguments calling in question the legality of those provisions. In those circumstances, his application does not meet the requirement set out in Article 44(1)(c) of the Rules of Procedure and must, therefore, be declared inadmissible.
27 In the light of the foregoing, the action must be declared inadmissible in so far as it seeks a declaration of inapplicability regarding Article 20(1)(b) of Decision 2010/413 and Article 16(2) of Regulation No 961/2010. The remainder of the plea of inadmissibility raised by the Council must be rejected.
No need to adjudicate on the application for annulment of Decision 2011/783, Implementing Regulation No 1245/2011 and Regulation No 267/2012
28 Under Article 113 of the Rules of Procedure, the General Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action or declare that the action has become devoid of purpose and that there is no need to adjudicate on it.
29 In the present case, the Court considers itself sufficiently informed by the documents in the file to give a decision without taking further steps in the proceedings.
30 According to settled case-law, an interest in bringing proceedings must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be likely, if successful, to procure an advantage for the party bringing it (Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 42, and Order of the General Court of 7 December 2011 in Case T‑255/11 Fellah v Council, not published in the ECR, paragraph 12).
31 In the present case, under Decision 2012/457 and Implementing Regulation No 709/2012, the Council has deleted the applicant’s name from the list of persons to which the restrictive measures, which were 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, apply. That deletion entails repealing Decision 2011/783, Implementing Regulation No 1245/2011 and Regulation No 267/2012, in so far as those measures concern the applicant.
32 It is true that, in principle, the interest of an applicant in bringing proceedings is retained despite the removal of his name from the lists of persons to which restrictive measures apply, for the purpose of having the Courts of the European Union recognise that he should never have been included on those lists or that he should not have been included under the procedure which was adopted by the European Union institutions (Case C‑239/12 P Abdulrahim v Council and Commission [2013] ECR I‑0000, paragraph 71).
33 However, in the present case, the applicant expressly indicated that he was not opposed to the Court taking no further steps in the proceedings (see paragraph 16 above). Thus, the applicant has himself admitted that he no longer has an interest in the annulment of Decision 2011/783, Implementing Regulation No 1245/2011 and Regulation No 267/2012.
34 Accordingly, there is no need to adjudicate on the application for annulment of Decision 2011/783, Implementing Regulation No 1245/2011 and Regulation No 267/2012.
Costs
35 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.
36 Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the General Court may order that the costs be shared or that each party bear its own costs.
37 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 General Court.
38 In the present case, it must be noted, first, that the applicant and the Council have both failed on part of their heads of claim relating to the plea of inadmissibility. Accordingly, each party should be ordered to bear its own costs relating to that plea.
39 Next, the applicant has been unsuccessful concerning his application for a declaration of inapplicability regarding Article 20(1)(b) of Decision 2010/413 and Article 16(2) of Regulation No 961/2010. That being said, since the merits of that application have not been considered, it cannot have generated costs for the Council beyond those relating to the plea of inadmissibility. In those circumstances, it is sufficient that the applicant be ordered to pay his own costs relating to the application for a declaration of inapplicability.
40 Lastly, regarding the application for annulment of Decision 2011/783, Implementing Regulation No 1245/2011 and Regulation No 267/2012, taking into account the particular circumstances of the present case, the Court considers that it is appropriate to order the Council to bear both its own costs and those incurred by the applicant.
41 In that regard, the Court considers, inter alia, first, that the applicant cannot be criticised for having brought an action for annulment against acts of the European Union institutions which included or kept his name on lists entailing the freezing of his funds, particularly as the Council provided no details regarding the grounds for his inclusion on the lists in question except during the proceedings before the General Court, and, second, that the action has become devoid of purpose as a result of the applicant’s name being deleted from those lists on the Council’s initiative, without that institution giving any specific reasons for that deletion.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1. The action is dismissed as being inadmissible in so far as it seeks a declaration that 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 and 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 are not to apply to the applicant.
2. The remainder of the plea of inadmissibility is rejected.
3. There is no need to adjudicate on the action in so far as it seeks the annulment of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413, Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010, and Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010, in so far as those measures concern the applicant.
4. The Council shall bear, in addition to its own costs, the applicant’s costs relating to the application for annulment of Decision 2011/783, Implementing Regulation No 1245/2011 and Regulation No 267/2012.
5. The applicant shall bear his own costs relating to (i) the application for a declaration of inapplicability regarding Article 20(1)(b) of Decision 2010/413 and Article 16(2) of Regulation No 961/2010 and (ii) the objection of inadmissibility.
Luxembourg, 17 June 2013.