ORDER OF THE GENERAL COURT (Seventh Chamber)
20 February 2014 (*)
(Action for annulment – Common foreign and security policy – Restrictive measures against Iran – List of persons and entities to which those restrictive measures apply – Period within which an action must be brought – Action brought out of time – Inadmissibility)
In Case T‑187/13,
Mahmoud Jannatian, residing in Tehran (Iran), represented by E. Rosenfeld and S. Monnerville, lawyers,
applicant,
v
Council of the European Union, represented by F. Naert and M. Bishop, acting as Agents,
defendant,
APPLICATION for annulment, in so far as they concern the applicant, of: (i) Council Common Position 2008/479/CFSP of 23 June 2008 amending Common Position 2007/140/CFSP concerning restrictive measures against Iran (OJ 2008 L 163, p. 43); (ii) Council Decision 2008/475/EC of 23 June 2008 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2008 L 163, p. 29); (iii) Council Common Position 2008/652/CFSP of 7 August 2008 amending Common Position 2007/140/CFSP concerning restrictive measures against Iran (OJ 2008 L 213, p. 58); (iv) Council Decision 2009/840/CFSP of 17 November 2009 implementing Common Position 2007/140/CFSP concerning restrictive measures against Iran (OJ 2009 L 303, p. 64); (v) Council Regulation (EC) No 1100/2009 of 17 November 2009 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran and repealing Decision 2008/475/EC (OJ 2009 L 303, p. 31); (vi) 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); (vii) Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L 281, p. 81); (viii) Council Regulation (EU) 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); and (ix) 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 (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 present case has been brought in the context of the restrictive measures introduced with a view to applying pressure on the Islamic Republic of Iran to end proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems.
2 The applicant, Mr Mahmoud Jannatian, is an Iranian citizen who works in the energy sector in Iran.
3 By Common Position 2008/479/CFSP of 23 June 2008 amending Common Position 2007/140/CFSP concerning restrictive measures against Iran (OJ 2008 L 163, p. 43), and by Decision 2008/475/EC of 23 June 2008 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2008 L 163, p. 29), the Council of the European Union decided to include the applicant’s name on the lists of persons and entities to which those restrictive measures applied.
4 The original lists have been amended on several occasions, resulting in the amended lists referred to in paragraphs 5 to 9 below (taken together, ‘the list’).
5 By Common Position 2008/652/CFSP of 7 August 2008 amending Common Position 2007/140/CFSP concerning restrictive measures against Iran (OJ 2008 L 213, p. 58), the Council maintained the applicant’s name on the list.
6 By Decision 2009/840/CFSP of 17 November 2009 implementing Common Position 2007/140/CFSP concerning restrictive measures against Iran (OJ 2009 L 303, p. 64), the Council maintained the applicant’s name on the list. Likewise, Regulation (EC) No 1100/2009 of 17 November 2009 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran and repealing Decision 2008/475/EC (OJ 2009 L 303, p. 31) maintained the applicant’s name on the list.
7 By 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), the Council maintained the applicant’s name on the list.
8 By Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L 281, p. 81), the Council maintained the applicant’s name on the list. Regulation (EU) 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) also maintained the applicant’s name on the list.
9 By 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 Council maintained the applicant’s name on the list.
10 All of the contested measures, in the form of common positions, decisions and regulations, are set out in paragraphs 3 to 9 above (‘the contested measures’).
11 A notice for the attention of those persons and entities to which the restrictive measures provided for in Decision 2010/413 and in Regulation No 267/2012 apply was published by the Council in the Official Journal of the European Union on 11 December 2012 (OJ 2012 C 380, p. 7). That notice informed those persons and entities appearing in Annex II to Decision 2010/413 and in Annex IX to Regulation No 267/2012 of the possibility of making a request to the Council, accompanied by supporting documents, for reconsideration of the decision to include them on the list in question.
Procedure
12 By application lodged at the Court Registry on 2 April 2013, the applicant brought the present action.
13 By separate document lodged at the Court Registry on 24 June 2013, the Council raised an objection of inadmissibility under Article 114 of the Rules of Procedure of the General Court.
14 By document lodged at the Court Registry on 21 August 2013, the applicant lodged his observations on that objection of inadmissibility and also amended his heads of claim to support the admissibility of the action, on the one hand, and to claim that Article 46(3) of Regulation No 267/2012 is illegal, on the other.
Forms of order sought
15 In the application and in his observations on the objection of inadmissibility, the applicant claims that the Court should:
– declare the action admissible;
– annul the contested measures, in so far as they concern him;
– declare Article 46(3) of Regulation No 267/2012 illegal;
– order the Council to pay the costs.
16 The Council contends that the Court should:
– dismiss the action as being inadmissible;
– order the applicant to pay the costs.
Law
17 Pursuant to Article 114(1) of the Rules of Procedure, the Court may, if a party so requests, rule on the plea of admissibility without going to the substance of the case.
18 In the present case, the Court considers that it has sufficient information from the documents in the file to give a decision on the Council’s plea without opening the oral procedure.
19 The Council claims that the present action brought against the contested measures is inadmissible on the ground that it was brought out of time. Even if the period of two months set out in Article 263 TFEU is calculated from the date of the most recent measures, that is to say, the notice of 11 December 2012 (see paragraph 11 above) and the notification letter sent to the applicant that same day, the action was brought out of time. In that regard, the Council states that, by letters of 25 June 2009, 18 November 2009, 24 May 2011 and 5 December 2011, it also notified the applicant that his name had been included on the list and informed him of the possibility of challenging that listing.
20 It should be borne in mind, first, that, under the sixth paragraph of Article 263 TFEU, an application for annulment must be instituted within two months of the publication of the contested measure, of its notification to the applicant or, in the absence thereof, of the day on which it came to the applicant’s knowledge, as the case may be.
21 It is settled case‑law that the period for bringing actions prescribed in the sixth paragraph of Article 263 TFEU is a matter of public policy, since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice. The Courts of the European Union must, if necessary, ascertain of their own motion whether that period has been observed (see, inter alia, Case C‑246/95 Coen [1997] ECR I‑403, paragraph 21, and Joined Cases T‑121/96 and T‑151/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1355, paragraphs 38 and 39).
22 It must be held, in the present case, that the action was brought on 2 April 2013, that is to say, more than three and a half months after the publication, on 11 December 2012, of the last notice announcing the continued inclusion of the applicant’s name on the list (see paragraph 11 above). Even taking into account the fact that the period of two months for bringing an action for annulment starts to run, in accordance with Article 102(1) of the Rules of Procedure, only from the end of the 14th day following publication of the measure in the Official Journal and that that period must be extended on account of distance by a single period of 10 days, in accordance with Article 102(2) of the Rules of Procedure, that period had expired when the action was brought on 2 April 2013. The same principle must necessarily apply to the periods prescribed for commencing proceedings against the listing measures or measures maintaining the applicant’s name on the list which are also the subject of the present action, in so far as all of those measures are based on strictly identical grounds. Those grounds refer to the duties performed by the applicant within the Atomic Energy Organisation of Iran at the time of his original listing, duties which he claims to have ceased carrying out in 2007.
23 The applicant nevertheless takes the view that his action is admissible. He claims in essence that the period for bringing an action set out in the sixth paragraph of Article 263 TFEU had not started to run because the publication of a notice cannot constitute the starting date of that period. He argues that the Council was not entitled to publish a notice for three reasons. First, the applicant claims that Article 46(3) of Regulation No 267/2012, which enables the Council, subject to certain conditions, to communicate a decision to include a person on a list by publishing a notice in the Official Journal, is illegal. Second, he submits, that provision applies only to initial listing decisions and not to subsequent decisions maintaining that listing. Third, the conditions set out in Article 46(3) of Regulation No 267/2012 are not, in any event, satisfied in the present case.
24 It is therefore necessary to establish whether those three arguments are capable of invalidating the finding in paragraph 22 above that the action was brought out of time.
25 So far as concerns, in the first place, the plea of illegality raised against Article 46(3) of Regulation No 267/2012, it should be borne in mind that that provision and the corresponding provisions in the previous regulations provide that the Council is to communicate its listing decision, including the grounds for listing, to the person concerned, either directly, if the address is known, or through the publication of a notice, providing that person with an opportunity to present observations.
26 The applicant claims that that provision is contrary to the sixth paragraph of Article 263 TFEU. That article, he submits, does not allow individual notification to be replaced by the publication of a general notice. According to the applicant, the decisive criterion laid down by that article is whether the person concerned was actually aware of the restrictive measures adopted against him. The publication of a notice, in accordance with Article 46(3) of Regulation No 267/2012, does not, however, resolve that issue.
27 That argument cannot be accepted.
28 First, the sixth paragraph of Article 263 TFEU provides neither an exhaustive set of rules concerning the possible methods by which measures liable to be the subject of an application for annulment may be notified, nor rules concerning the calculation of the period within which an action must be brought. It is a provision which is liable to be the subject of more detailed rules.
29 Thus, Articles 253 TFEU, 254 TFEU and 257 TFEU provide for the adoption of Rules of Procedure by the European Union Courts which, according to Article 45 of the Statue of the Court of Justice of the European Union, also concern periods of grace based on considerations of distance which must be taken into account when calculating the period within which an action must be brought. Moreover, in so far as the sixth paragraph of Article 263 TFEU sets out three types of communication of acts of the European Union institutions against which an action may be brought, that is to say, the publication of the contested measure, its notification to the applicant, or, in the absence thereof, the coming of that measure to the applicant’s knowledge, without specifying the conditions under which each of those methods of communication applies, more detailed rules, such as those contained in Article 46(3) of Regulation No 267/2012, may be required in order to provide the necessary additional information.
30 Second, it must be noted that the Court of Justice has been called upon to give a ruling on the interpretation of provisions similar to Article 46(3) of Regulation No 267/2012, without expressing any reservations as to the validity of those provisions. One such judgment is that in Joined Cases C‑478/11 P to C‑482/11 P Gbagbo and Others v Council [2013] ECR, in which the Court of Justice upheld the validity of the indirect communication of the contested measures to the persons concerned by means of a notice published in the Official Journal, where it was impossible to notify those persons directly. The Court of Justice did not make its assessment conditional on whether communication by way of a notice had enabled the persons concerned actually to become aware of the contested measures (see Gbagbo and Others v Council, paragraphs 60 to 62).
31 So far as concerns, in the second place, the argument that Article 46(3) of Regulation No 267/2012 cannot be applied to decisions maintaining an original listing, the applicant claims that that provision must be interpreted in the light of Article 46(2), which authorises the Council to amend Annex IX to that regulation in the case where it decides to subject a person or entity to restrictive measures. In the applicant’s view, it follows a contrario that Article 46(3) of Regulation No 267/2012 does not concern decisions to maintain a name on a list.
32 That argument cannot be accepted.
33 Contrary to what the applicant claims, Article 46(3) of Regulation No 267/2012 concerns both original listing decisions and decisions to maintain a person’s name on a list. That provision must be interpreted not only in the light of Article 46(2) of that regulation but in relation to all of the paragraphs of Article 46. It is clear from all of its provisions that Article 46 of Regulation No 267/2012, including paragraph 2 thereof, refers to decisions to include a person on the list and makes no distinction between the original listing and subsequent decisions to maintain that name on the list. On the contrary, it is clear from the last three paragraphs of Article 46 that decisions to subject a natural or legal person to restrictive measures are reviewed at regular intervals, in particular where new evidence is presented or where observations from the parties concerned are submitted, which implies that decisions to maintain the names of persons on the lists are also covered by that provision.
34 So far as concerns, third and finally, the argument that the conditions for the application of Article 46(3) of Regulation No 267/2012 were not met in the present case, the importance of the right to effective judicial protection in the area of restrictive measures must be borne in mind. According to the case-law, that right means that the European Union authority which adopts an act imposing restrictive measures against a person or entity is obliged to communicate the grounds on which it is based, so far as possible, either when that act is adopted or, at the very least, as swiftly as possible after it has been adopted in order to enable that person or entity to exercise his or its right to bring an action (Case C‑548/09 P Bank Melli Iran v Council [2011] ECR I‑11381, paragraph 47). It is also clear from the case‑law that, while, admittedly, the entry into force of measures such as the contested measures is effected by their publication, the period for the bringing of an action for the annulment of those measures runs, for each of those persons and entities, from the date of the communication which they must receive (Gbagbo and Others v Council, paragraph 59).
35 Moreover, reference must be made to the purpose served by a time-limit for bringing proceedings, which is to safeguard legal certainty by ensuring that European Union measures which produce legal effects may not indefinitely be called into question, in particular with regard to applicants wishing to defer the starting point of the period for bringing proceedings by relying on the fact that there was no direct communication or that they actually became aware of the contested measures at a later date. Furthermore, the strict application of procedural rules not only serves the requirements of legal certainty but also addresses the need to avoid any discrimination or arbitrary treatment in the administration of justice (see Gbagbo and Others v Council, paragraphs 62 and 71 and the case‑law cited).
36 The rules provided for in Article 46(3) of Regulation No 267/2012 make it possible to reconcile the right of persons subject to restrictive measures to effective judicial protection with the principle of legal certainty, which is in the public interest. The same holds true of the similar rules which preceded the provision at issue, such as, for example, Article 36(3) of Regulation No 961/2010. By providing that the Council must communicate its decision, including the grounds for the inclusion of the name of a person or entity on a list, to the person or entity concerned, either directly, if the address is known, or through the publication of a notice, thereby providing that person or entity with an opportunity to present observations, those rules emphasise individual communication, while allowing for communication through the publication of a notice in cases where individual communication is not possible.
37 In the light of the foregoing, it is necessary to examine whether it was possible for the Council to communicate the contested measures to the applicant by means of individual notification before relying on communication by way of a notice.
38 In the present case, the Council claims that it took care to communicate the contested measures both by individual letters of notification and by publication of a notice in the Official Journal. However, it turned out that the address to which those letters were sent was no longer the applicant’s address and that he therefore did not receive those letters.
39 The applicant submits that his address was not unknown. He claims that a straightforward search on the internet would have enabled the Council’s services to locate the correct address. In so far as it undertook no research, the applicant argues that the Council cannot rely on the possibility of communication of the contested measures to him by means of the publication of a notice.
40 It follows from both the wording of Article 46(3) of Regulation No 267/2012 and the case-law of the Court of Justice in Gbagbo and Others v Council, paragraph 61, that communication by way of a notice is merely an alternative method of communication on which the Commission can rely only if individual communication proves to be impossible (see paragraph 30 above).
41 In the present case, the Council sent individual letters of notification, as mentioned in paragraph 19 above. It is true that those letters were sent only as from 2009 and, moreover, to the applicant’s old address. Furthermore, the Council did not obtain acknowledgments of receipt to show that the letters had in fact been received by the applicant.
42 However, in the light of the circumstances of the case, the Council had no reason to believe, in 2012, that those letters had not reached their addressee and that it was necessary to verify the applicant’s address. The applicant’s name had been included on the list without interruption and his assets had been frozen since 2008. Since then, the Council has sent out several successive notifications – first, of the original inclusion of the applicant’s name on the list, followed by the subsequent decisions maintaining that listing – to a professional address of the applicant, without the documents before the Court showing that the Council had been informed that the address used was incorrect. Moreover, those letters were sent to a government body within which the applicant held a senior position. It was therefore not unreasonable for the Council to take the view that that body would forward the Council’s letters sent to the applicant to the applicant’s new address or that it would return them to the sender.
43 It follows that the applicant’s actual address was unknown to the Council and that there was no reason for the Council to verify whether the address in its possession was correct. In so far as the applicant’s address was thus objectively unknown to the Council, Article 46(3) of Regulation No 267/2012 allowed the Council to communicate the contested measures by means of publication of a notice in the Official Journal.
44 Consequently, none of the three arguments put forward by the applicant with a view to invalidating the finding, set out in paragraph 22 above, that the application was submitted out of time is well founded. The present action must therefore be declared inadmissible in its entirety.
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, he 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:
1. The action is dismissed as being inadmissible.
2. Mr Mahmoud Jannatian shall bear his own costs and pay those incurred by the Council of the European Union.
Luxembourg, 20 February 2014.
E. Coulon | | M. van der Woude |