JUDGMENT OF THE GENERAL COURT (First Chamber)
4 June 2014 (*)
(Common foreign and security policy — Restrictive measures taken against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Prohibition on entry or on transit — Action for annulment — Interest in bringing proceedings — Admissibility — Obligation to state reasons)
In Case T‑68/12,
Abdolnaser Hemmati, residing in Tehran (Iran), represented by B. Mettetal and C. Wucher-North, lawyers,
applicant,
v
Council of the European Union, represented by B. Driessen and D. Gicheva, acting as Agents,
defendant,
APPLICATION for annulment, first, 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), in so far as it included the applicant’s name 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), and of 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), in so far as it included the applicant’s name in Annex VIII to 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, secondly, of Article 16(2) of Regulation No 961/2010 and of Article 19(1)(b) and Article 20(1)(b) of Decision 2010/413, in so far as those provisions concern the applicant,
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, I. Pelikánová (Rapporteur) and E. Buttigieg, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 10 December 2013,
gives the following
Judgment
Background to the dispute
Restrictive measures taken against the Islamic Republic of Iran
1 This case has been brought in connection with the restrictive measures 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 (‘nuclear proliferation’).
Restrictive measures directed at Sina Bank and the applicant
2 On 23 September 2006, the applicant, Mr Abdolnaser Hemmati, was appointed as Managing Director and Chief Executive Officer of Sina Bank, an Iranian bank incorporated as a public joint-stock company.
3 On 26 July 2010, Sina Bank was included on the list 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).
4 Consequently, Sina Bank was also included on 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). Its inclusion on that list took effect on the date of publication of 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) in the Official Journal of the European Union, namely 27 July 2010, and resulted in the freezing of its funds and economic resources.
5 The inclusion of Sina Bank on the abovementioned lists was based on the following grounds:
‘This bank is very closely linked to the interests of “Daftar” (Office of the Supreme Leader [of the Islamic Revolution], with an administration of some 500 collaborators). It contributes in this way to funding the regime’s strategic interests.’
6 After reviewing Sina Bank’s situation, the Council of the European Union maintained Sina Bank’s name on the list in Annex II to Decision 2010/413, as amended by Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L 281, p. 81), with effect from the same date.
7 When Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation No 423/2007 (OJ 2010 L 281, p. 1) was adopted, Sina Bank was included, for the same reasons as those already stated in paragraph 5 above, on the list in Annex VIII to that regulation, with effect from 27 October 2010.
8 By application lodged at the Court Registry on 6 January 2011, Sina Bank brought an action seeking, in essence, annulment of Annex II to Decision 2010/413, as amended by Decision 2010/644, and of Annex VIII to Regulation No 961/2010, in so far as they concerned Sina Bank. The case was registered at the Court Registry as Case T‑15/11.
9 After reviewing Sina Bank’s situation, the Council maintained Sina Bank’s name on the lists in Annex II to Decision 2010/413 and in Annex VIII to Regulation No 961/2010 (‘the lists at issue’), with effect, respectively, from 1 December 2011, the date of the adoption of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413 (OJ 2011 L 319, p. 71), and from 2 December 2011, the date of the publication in the Official Journal of the European Union of Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11).
10 It was also by virtue of Decision 2011/783 and implementing Regulation No 1245/2011 that the applicant’s name was included on the lists at issue, with effect from 1 and 2 December 2011, respectively. His inclusion on those lists had the effect that his funds and economic resources were frozen and he was prohibited from entering or passing through the territory of the European Union.
11 The inclusion of the applicant’s name on the lists at issue was based on the following grounds:
‘Managing Director and Chief Executive Officer of [European Union]-designated [Sina Bank].’
12 On 2 December 2011, the Council, not being aware of the applicant’s personal address, published a notice in the Official Journal of the European Union to inform him that his name had been included on the lists at issue (OJ 2011 C 351, p. 15).
13 By letter of 5 December 2011, the Council notified Sina Bank that its name was being maintained on the lists at issue and informed it of the grounds for maintaining that listing. A copy of Decision 2011/783 and implementing Regulation No 1245/2011 was enclosed with the letter.
14 By letter of 23 January 2012, the applicant submitted his observations, disputing the grounds on which his name had been included.
15 By application lodged at the Court Registry on 10 February 2012, Sina Bank brought a new action seeking, in essence, annulment of Decision 2011/783, in so far as it maintained, after review, the listing of its name in Annex II to Decision 2010/413, as amended by Decision 2010/644, with effect from 1 December 2011, and of implementing Regulation No 1245/2011, in so far as it maintained, after review, the listing of its name in Annex VIII to Regulation No 961/2010 with effect from 2 December 2011. The case was registered at the Court Registry as Case T‑67/12.
16 When 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) was adopted, the names of Sina Bank and of the applicant were included, for the same reasons as those stated in paragraphs 5 and 11 above, on the list in Annex IX to that regulation, with effect from 24 March 2012.
17 On 3 August 2012, the date of publication in the Official Journal of the European Union of Council Decision 2012/457/CFSP of 2 August 2012 amending Decision 2010/413 (OJ 2012 L 208, p. 18) and of 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 removed from the lists in Annex II to Decision 2010/413, as amended by Decision 2011/783, and in Annex IX to Regulation No 267/2012. On that date, the restrictive measures taken against the applicant therefore came to an end.
18 By judgment of 11 December 2012 in Case T‑15/11 Sina Bank v Council [2012] ECR, the Court annulled Annex II to Decision 2010/413, as amended by Decision 2010/644, and Annex VIII to Regulation No 961/2010, in so far as they concerned Sina Bank. However, it ordered that the effects of Annex II to Decision 2010/413, as amended by Decision 2010/644, be maintained in relation to Sina Bank until such time as the annulment of Annex VIII to Regulation No 961/2010 took effect. As no appeal was lodged against the judgment in Sina Bank v Council, that judgment became final and acquired the force of res judicata.
Procedure and forms of order sought by the parties
19 By application lodged at the Court Registry on 10 February 2012, the applicant brought the present action, which was assigned to the Fourth Chamber of the Court on account of the connection between cases.
20 On 24 April 2012 the Council lodged its defence.
21 On 20 June 2012 the applicant lodged his reply.
22 On 25 July 2012 the Council lodged its rejoinder.
23 On 6 September 2012, on a proposal from the Judge-Rapporteur, the Court (Fourth Chamber) adopted a measure of organisation of procedure, pursuant to Article 64 of its Rules of Procedure, questioning the parties about the conclusions to be drawn from the adoption of Decision 2012/457 and implementing Regulation No 709/2012 as regards the applicant’s continuing interest in proceeding with the action. The parties answered that question within the prescribed period.
24 Following changes to the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the First Chamber, to which the present case has therefore been allocated.
25 Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, requested the Council to produce the notice published in the Official Journal of the European Union on 2 December 2011 (paragraph 12 above), and the applicant to answer a question. The applicant and the Council complied with those requests within the prescribed period.
26 The applicant and the Council presented oral argument and answered the oral questions put to them by the Court at the hearing on 10 December 2013. In the course of his submissions, the applicant withdrew his head of claim seeking annulment of the Council’s letter of 5 December 2011 (paragraph 13 above), in so far as it constituted a decision concerning him.
27 The applicant claims, in essence, that the Court should:
– annul Decision 2011/783, in so far as it included the applicant in Annex II to Decision 2010/413, and implementing Regulation No 1245/2011, in so far as it included the applicant in Annex VIII to Regulation No 961/2010 (‘the contested inclusion measures’);
– annul Article 16(2) of Regulation No 961/2010 and Article 19(1)(b) and Article 20(1)(b) of Decision 2010/413;
– order the Council to pay the costs.
28 The Council contends that the Court should:
– primarily:
– declare that there is no need to adjudicate on the action;
– order each party to bear its own costs;
– in the alternative:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
The jurisdiction of the Court and the admissibility of the form of order sought by the applicant
29 In accordance with the case-law, the Courts of the European Union may at any time of their own motion consider whether there exists any bar to proceeding with a case, including the extent of their jurisdiction and the conditions for the admissibility of an action (see, to that effect, Case 6/60 Humblet v État belge [1960] ECR 559, 570).
30 In the present case, the Court must examine of its own motion (i) whether the claim for annulment of Article 19(1)(b) and Article 20(1)(b) of Decision 2010/413 has been brought before a court that has jurisdiction to hear it and (ii) the admissibility of the claim for annulment of Article 16(2) of Regulation No 961/2010.
31 As regards the claim for annulment of Article 19(1)(b) and Article 20(1)(b) of Decision 2010/413, it must be observed that those provisions were adopted on the basis of Article 29 TEU, which is a provision concerning the common foreign and security policy (CFSP) within the meaning of Article 275 TFEU. However, as provided for in the second paragraph of Article 275 TFEU, read in conjunction with Article 256(1) TFEU, the General Court has jurisdiction only to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 TFEU, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the EU Treaty. As the Court of Justice held in Joined Cases C‑478/11 P to C‑482/11 P Gbagbo v Council [2013] ECR, paragraph 57, as regards measures adopted on the basis of provisions relating to the CFSP, 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.
32 The restrictive measures provided for in Article 19(1)(b) and Article 20(1)(b) of Decision 2010/413 are measures of general application because they apply to situations determined objectively as relating to nuclear proliferation and to a category of persons envisaged in a general and abstract manner as being persons and entities listed in Annex II to Decision 2010/413 (see, to that effect, Sina Bank v Council, paragraph 18 above, paragraph 45; see also, to that effect and by analogy, Gbagbo v Council, paragraph 31 above, paragraph 56). Consequently, those provisions cannot be classified as ‘decisions providing for restrictive measures against natural or legal persons’ within the meaning of the second paragraph of Article 275 TFEU. That outcome is not altered by the fact that the applicant stated that he was challenging those provisions only in so far as they concerned him. The fact that those provisions were applied to the applicant does not alter their legal nature as acts of general application. In the present case, the ‘decisions providing for restrictive measures against natural or legal persons’ within the meaning of the second paragraph of Article 275 TFEU lie in the measure by which the applicant’s name was included in Annex II to Decision 2010/413, as amended by Decision 2010/644, with effect from 1 December 2011.
33 The claim for annulment of Article 19(1)(b) and Article 20(1)(b) of Decision 2010/413 therefore does not satisfy the rules governing the jurisdiction of the Court laid down in the second paragraph of Article 275 TFEU. It must therefore be dismissed as having been brought before a court that has no jurisdiction to hear it.
34 As regards the claim for annulment of Article 16(2) of Regulation No 961/2010, it must be observed that that provision was adopted on the basis of Article 215 TFEU which governs the restrictive measures adopted by the Council within the framework of the European Union’s external action. As provided in the fourth paragraph of Article 263 TFEU, read in conjunction with Article 256(1) TFEU, the General Court has jurisdiction to rule in actions brought by any natural or legal person, under the conditions laid down in the first and second paragraphs of Article 263 TFEU, against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
35 The restrictive measures provided for in Article 16(2) of Regulation No 961/2010 are measures of general application because they apply to situations determined objectively as relating to nuclear proliferation and to a category of persons envisaged in a general and abstract manner as being the persons, entities and bodies listed in Annex VIII to that regulation (see the case-law already cited in paragraph 32 above). The application of that provision requires the adoption of an implementing measure or, in other words, of a measure of an individual nature consisting, as is apparent from Article 36(2) and (3) of Regulation No 961/2010, of the inclusion or, after review, the maintenance of the name of the person, entity or body referred to in Annex VIII to that regulation. Consequently, Article 16(2) of Regulation No 961/2010 is not, as such, a measure which the applicant could directly challenge on the basis of the fourth paragraph of Article 263 TFEU. That outcome is not altered by the fact that the applicant stated that he was challenging that provision only in so far as it concerned him. The fact that that provision was applied to the applicant does not alter its legal nature as an act of general application. In the present case, the individual measure, which is directly challengeable by the applicant, is the measure by which the applicant’s name was included in Annex VIII to Regulation No 961/2010, with effect from 2 December 2011.
36 The claim for annulment of Article 16(2) of Regulation No 961/2010 therefore does not meet the conditions for admissibility laid down in the fourth paragraph of Article 263 TFEU. It must therefore be dismissed as inadmissible.
The Council’s primary request for a declaration that there is no need to adjudicate on the action
37 The Council submits that there is no longer any need to adjudicate on the present action because, following the entry into force of Decision 2012/457 and implementing Regulation No 709/2012 on 3 August 2012, the applicant has lost any interest in bringing proceedings.
38 It must be borne in mind that the conditions governing the admissibility of an action must be judged, subject to the separate question of the loss of an interest in bringing proceedings, at the time when the application is lodged. In the interest of the proper administration of justice, that consideration relating to the time when the admissibility of the action is assessed does not prevent the Court from finding that there is no longer any need to adjudicate on the action in the event that an applicant who initially had a legal interest in bringing proceedings has lost all personal interest in having the contested decision annulled on account of an event occurring after that application was lodged. For an applicant to be entitled to pursue an action seeking the annulment of a decision, he must retain a personal interest in the annulment of the contested decision, because, otherwise, if the applicant’s interest in bringing proceedings disappears in the course of proceedings, a decision of the General Court on the merits cannot bring him any benefit (order in Case T‑36/10 Internationaler Hilfsfonds v Commission [2011] ECR II‑1403, paragraph 46).
39 In the present case, as the Council notes, the applicant’s name was removed from Annex II to Decision 2010/413, as amended by Decision 2011/783, and from Annex IX to Regulation No 267/2012 following the entry into force of Decision 2012/457 and implementing Regulation No 709/2012 on 3 August 2012. On that same date, the restrictive measures taken against the applicant came to an end.
40 However, the Court’s case-law shows that if recognition of the alleged illegality is such as to procure an advantage for the applicant, it establishes that his interest in bringing proceedings for annulment is retained even where the contested act has ceased to have effect after he brought his action (see Case C‑183/12 P Ayadi v Commission [2013] ECR, paragraph 76 and the case-law cited). In the case of a restrictive measure, the interest of an applicant is retained, despite the removal of the measure, for the purpose of having the Courts of the European Union recognise that he should never have been included on the list or that he should not have been included under the procedure which was adopted by the EU institutions (see, to that effect, Ayadi v Commission, paragraph 69).
41 Therefore, even though the applicant’s name has, since 3 August 2012, no longer been included on the lists for the purpose of the application of restrictive measures, he nevertheless still has an interest in bringing proceedings for annulment of the contested inclusion measures by virtue of which he became subject to restrictive measures.
42 Consequently, the Council’s primary request for a declaration that there is no need to adjudicate on the action must be dismissed and judgment must be given on the substance of the action, in so far as it seeks annulment of the contested inclusion measures.
Substance
43 The applicant puts forward three pleas in law in support of his claim for annulment of the contested inclusion measures. The first plea alleges breach of the obligation to state reasons, the principle of respect for the rights of the defence and the right to effective judicial protection, owing to the fact that he was not informed of either the precise grounds or the evidence and documents that would have justified the inclusion of his name on the lists at issue. The second plea alleges error of assessment owing to the fact that the Council included or maintained Sina Bank on the lists at issue although it did not satisfy the substantive criteria that would permit such inclusion. The third plea alleges breach of the right to property and the principle of proportionality, owing to the fact that, in any event, the restrictive measures taken against him constituted an unnecessary and disproportionate interference with Sina Bank’s right to property.
44 In the alternative, the Council submits that the claim for annulment should be rejected, on the ground that none of the pleas put forward in order to support it is well founded.
45 By the first plea, the applicant takes issue with the Council for having, when adopting the contested inclusion measures, breached the obligation to state reasons, the principle of respect for the rights of the defence and the right to effective judicial protection in that it did not inform him of either the precise grounds or the evidence and documents that would have justified the inclusion of his name on the lists at issue.
46 The Council disputes the applicant’s arguments and submits that the first plea should be rejected.
47 The complaint alleging breach of the obligation to state reasons should be examined first.
48 According to a consistent body of case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, secondly, to enable those Courts to review the legality of that act (see Case C‑417/11 P Council v Bamba [2012] ECR, paragraph 49 and the case-law cited).
49 The statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review (see Council v Bamba, paragraph 48 above, paragraph 50 and the case-law cited).
50 Where (i) the restrictive measures have considerable consequences for the persons, entities and bodies concerned, for they may restrict the exercise of their fundamental rights (Case C‑548/09 P Bank Melli Iran v Council [2011] ECR I‑11381, paragraph 49), and (ii) those persons, entities and bodies are not afforded the opportunity to be heard before the adoption of the initial act imposing the restrictive measures, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling those persons, entities and bodies, at least after the adoption of the initial act, to make effective use of the legal remedies available to them in order to challenge the lawfulness of that initial act (see Council v Bamba, paragraph 48 above, paragraph 51 and the case-law cited).
51 The principle of effective judicial protection means, therefore, that the EU authority which adopts the initial act imposing the restrictive measures is bound to communicate the grounds of that act to the person, entity or body in question, 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, entity or body properly to exercise its right to bring an action (see Case C‑548/09 P Bank Melli Iran v Council, paragraph 50 above, paragraph 47 and the case-law cited). In addition, the statement of reasons on which the act is based must be provided before the person, entity or body in question brings an action against that act, and non-compliance with this requirement cannot be remedied by the fact that that person, entity or body learns the reasons for that act during the proceedings before the Courts of the European Union (see, to that effect, Case T‑390/08 Bank Melli Iran v Council [2009] ECR II‑3967, paragraph 80 and the case-law cited).
52 It is also with a view to ensuring compliance with the right to effective judicial protection that Article 24(3) of Decision 2010/413 and Article 36(3) of Regulation No 961/2010 require the Council to state individual and specific reasons for the restrictive measures taken in accordance with Article 19(1)(b) and Article 20(1)(b) of Decision 2010/413 and Article 16(2) of Regulation No 961/2010, and to make them known to the persons, entities and bodies concerned (see, to that effect and by analogy, Case C‑548/09 P Bank Melli Iran v Council, paragraph 50 above, paragraph 48). According to the case-law, the Council must, in principle, fulfil its obligation to state reasons by an individual communication, since the mere publication in the Official Journal of the European Union is not sufficient (see, to that effect, Case T‑383/11 Makhlouf v Council [2013] ECR, paragraphs 47 and 48; see also, to that effect and by analogy, Case C‑548/09 P Bank Melli Iran v Council, paragraph 50 above, paragraph 52). However, where the person concerned actually became aware, in good time, of the reasons for the fund-freezing measure adopted in his regard, those reasons may be relied upon against him (see, to that effect and by analogy, Case C‑548/09 P Bank Melli Iran v Council, paragraph 50 above, paragraphs 55 and 56, and Makhlouf v Council, paragraph 48).
53 The statement of reasons required by Article 296 TFEU, Article 24(3) of Decision 2010/413 and Article 36(3) of Regulation No 961/2010 must be appropriate to the provisions under which the restrictive measures were 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 (see Council v Bamba, paragraph 48 above, paragraph 53 and the case-law cited).
54 In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him (see Council v Bamba, paragraph 48 above, paragraph 54 and the case-law cited).
55 In the present case, the Council stated that, since it was not aware of the applicant’s address, it had informed the applicant that his name had been included on the lists at issue by a notice published in the Official Journal of the European Union on 2 December 2011 (see paragraph 12 above), a process which was not disputed by the applicant. In that notice, which was produced by the Council at the Court’s request (see paragraph 25 above), it is stated that ‘the Council of the European Union has … decided that additional persons and entities should be included in the [lists at issue]’ and that ‘the grounds for designations of those persons and entities appear[ed] in the relevant entries in those [lists]’. According to the case-law of the Court of Justice, recourse to publication of the notice provided for in Article 24(3) of Decision 2010/413 and in Article 36(3) of Regulation No 961/2010 constitutes communication of the restrictive measures and their grounds to the persons, bodies or entities concerned (see, to that effect and by analogy, Gbagbo v Council, paragraph 31 above, paragraphs 60 to 62).
56 In any event, the applicant admits, in paragraph 8 of the reply, that he actually became aware of the inclusion of his name on the lists at issue and the grounds for that inclusion by the letter of 5 December 2011, with which those lists were enclosed.
57 It follows that the grounds for including the applicant’s name on the lists at issue, as set out in those lists, are effective against the applicant. Those grounds are that the applicant is ‘Managing Director and Chief Executive Officer of [European Union]-designated [Sina Bank]’.
58 It is not disputed that the Council relied, in the present case, on the criterion of providing support for nuclear proliferation set out in Article 20(1)(b) of Decision 2010/413 and in Article 16(2)(a) of Regulation No 961/2010. The Council claims, in the context of the present action, that that criterion may also be applied to the persons, bodies or entities which direct persons, bodies and entities through which such support for nuclear proliferation may be provided.
59 In that regard, it must be observed that persons performing duties which confer on them management power over persons or entities themselves providing support for nuclear proliferation, at the time when that support is provided, may, as a general rule, be considered to provide support for nuclear proliferation.
60 In that context, in order to be considered to be sufficient, within the meaning of the case-law, the grounds for the contested inclusion measures must state (i) the duties conferring management power over Sina Bank performed by the applicant on the date when the contested inclusion measures were adopted, namely 1 December 2011, and (ii) the reasons why Sina Bank may itself be considered to be a person providing support for nuclear proliferation.
61 As regards the duties conferring management power over Sina Bank performed by the applicant on 1 December 2011, it is sufficient that, in the grounds for the contested inclusion measures cited in paragraph 57 above, the Council referred to the function of ‘Chief Executive Officer’ or ‘CEO’, together with that of ‘Managing Director’, performed by the applicant within Sina Bank on 1 December 2011, which conferred on him, as the applicant accepted in his reply to a question from the Court (paragraph 25 above), management power over Sina Bank.
62 As regards the reasons why Sina Bank was itself included on the lists at issue, those reasons are not mentioned in the grounds for the contested inclusion measures, as cited in paragraph 57 above.
63 Even if the Council implicitly stated its reasons, in that regard, for the contested inclusion measures by reference to the grounds stated for including or, after review, maintaining Sina Bank on the lists at issue, and even if such a reference is, in principle, an acceptable method of fulfilling the Council’s obligation to state reasons, that reference cannot, in the particular circumstances of the present case, produce any effect.
64 The measures by which Sina Bank was included or, after review, maintained on the lists at issue were annulled by the judgment in Sina Bank v Council, paragraph 18 above, and by the judgment of today’s date in Case T‑67/12 Sina Bank v Council. Those measures are therefore not capable of providing the possible grounds for Sina Bank’s support for nuclear proliferation that are lacking in the contested inclusion measures.
65 It follows that the contested inclusion measures are vitiated by a failure to state reasons in that regard.
66 Consequently, the complaint, raised in the context of the first plea, alleging breach of the obligation to state reasons must be upheld, and, without its being necessary to rule on the other pleas and complaints relied on in support of this action, the contested inclusion measures must be annulled.
Costs
67 Pursuant to Article 87(3) of the Rules of Procedure, the Court may order that the costs be shared or that each party bear its own costs where each party succeeds on some and fails on other heads.
68 In the circumstances of the present case, in which the Council has essentially been unsuccessful, the Council must be ordered to bear four fifths of its own costs and to pay four fifths of the applicant’s costs, and the applicant must be ordered to bear the remaining one fifth of its own costs and to pay one fifth of the Council’s costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Dismisses the action as having been brought before a court that has no jurisdiction to hear it, in so far as it seeks annulment of Article 19(1)(b) and 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 as being inadmissible, in so far as it seeks annulment of 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;
2. Annuls Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413, in so far as it included Mr Abdolnaser Hemmati’s name in Annex II to Decision 2010/413, and Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010, in so far as it included Mr Hemmati’s name in Annex VIII to Regulation No 961/2010;
3. Orders the Council of the European Union to bear four fifths of its own costs and to pay four fifths of Mr Hemmati’s costs;
4. Orders Mr Hemmati to bear one fifth of his own costs and to pay one fifth of the Council’s costs.
Kanninen | Pelikánová | Buttigieg |
Delivered in open court in Luxembourg on 4 June 2014.
[Signatures]
Table of contents
Background to the dispute
Restrictive measures taken against the Islamic Republic of Iran
Restrictive measures directed at Sina Bank and the applicant
Procedure and forms of order sought by the parties
Law
The jurisdiction of the Court and the admissibility of the form of order sought by the applicant
The Council’s primary request for a declaration that there is no need to adjudicate on the action
Substance
Costs