Judgment_paragraph 35 · Council of the European Union v Fulmen and Fereydoun Mahmoudian (C-280/12 P)

35In paragraphs 96 to 104 of the judgment under appeal, the General Court ruled as follows:96 In that regard, it must be recalled that the judicial review of the lawfulness of a measure whereby restrictive measures are imposed on an entity extends to the assessment of the facts and circumstances relied on as justifying it, and to the evidence and information on which that assessment is based. In the event of challenge, it is for the Council to present that evidence for review by [the C]ourts of the European Union (see, to that effect, Case T-390/08 Bank Melli Iran v Council [[2009] ECR II-3967], paragraphs 37 and 107).97 Accordingly, contrary to what is claimed by the Council, the review of lawfulness which must be carried out in the present case is not limited to an appraisal of the abstract “probability” of the grounds relied on, but must include the question whether those grounds are supported, to the requisite legal standard, by concrete evidence and information.98 Nor can the Council claim that it is not required to adduce such evidence.99 In that regard, first, the Council contends that the restrictive measures imposed on the applicants were adopted on the proposal of a Member State, in accordance with the procedure provided for in Article 23(2) of Decision 2010/413. That circumstance however in no way detracts from the fact that the [acts at issue] are measures taken by the Council, which must, therefore, ensure that their adoption is justified, if necessary by requesting the Member State concerned to submit to it the evidence and information required for that purpose.100 Secondly, the Council cannot rely on a claim that the evidence concerned comes from confidential sources and cannot, consequently, be disclosed. While that circumstance might, possibly, justify restrictions in relation to the communication of that evidence to [Fulmen or Mr Mahmoudian] or their lawyers, the fact remains that, taking into consideration the essential role of judicial review in the context of adoption of restrictive measures, the [C]ourts of the European Union must be able review the lawfulness and merits of such measures without it being possible to raise objections that the evidence and information used by the Council is secret or confidential (see, by analogy, [Case T-228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II-4665,] paragraph 155). Further, the Council is not entitled to base an act adopting restrictive measures on information or evidence in the file communicated by a Member State, if that Member State is not willing to authorise its communication to the [C]ourts of the European Union whose task is to review the lawfulness of that decision (see, by analogy, Case T-284/08 People’s Mojahedin Organization of Iran v Council [2008] ECR II-3487, paragraph 73).101 Thirdly, the Council is incorrect in its claim that it cannot be expected to adduce proof of the involvement of an entity in nuclear proliferation, taking into consideration the clandestine nature of the conduct concerned. The mere fact that the adoption of restrictive measures is proposed pursuant to Article 23(2) of Decision 2010/413 presupposes that the Member State concerned or the High Representative of the Union for Foreign Affairs and Security Policy, as the case may be, are in possession of evidence or information demonstrating, in their opinion, that the entity concerned is involved in nuclear proliferation. Further, difficulties which may be encountered by the Council when attempting to prove that involvement may, in some cases, have an effect on the standard of proof required of it. On the other hand, the effect of such difficulties cannot be that the Council is entirely relieved of the burden of proof which rests on it.102 As regards the assessment in the present case, the Council has produced no information or evidence in support of the reasons relied on in the [acts at issue]. As the Council itself admits, in essence, it has relied on mere unsubstantiated allegations that Fulmen installed electrical equipment on the Qom/Fordoo site before the existence of that site was discovered.103 In those circumstances, since it must be held that the Council has not adduced evidence that Fulmen was active on the Qom/Fordoo site and, therefore, the third plea in law must be upheld, it is unnecessary to express any view on the second argument, put forward by Mr Mahmoudian in Case T‑440/10, concerning his position within Fulmen.104 Since the Council has not, in the [acts at issue], relied on other circumstances justifying the adoption of restrictive measures with regard to Fulmen and Mr Mahmoudian, the [acts at issue] must be annulled in so far as they concern [Fulmen and Mr Mahmoudian].’