Contents
Judgment of the General Court (First Chamber)29 April 2015note(Common foreign and security policy — Restrictive measures against Iran to prevent nuclear proliferation — Freezing of funds — Action for annulment — Time-limit for bringing an action — Admissibility — Plea of illegality — Error of law — Proportionality — Right to property — Powers of the Council — Obligation to state reasons — Rights of the defence — Reconsideration of restrictive measures adopted — Right to effective judicial protection — Error of assessment)In Case T‑10/13,Bank of Industry and Mine, established in Teheran (Iran), represented by E. Glaser and S. Perrotet, lawyers,vCouncil of the European Union, represented by V. Piessevaux and M. Bishop, acting as Agents,THE GENERAL COURT (First Chamber),composed of H. Kanninen, President, I. Pelikánová (Rapporteur) and E. Buttigieg, judges,Registrar: S. Bukšek Tomac, Administrator,having regard to the written procedure and further to the hearing on 12 September 2014,gives the following
Judgment
Background to the dispute
1The applicant, Bank of Industry and Mine, is an Iranian bank owned by the Iranian State, whose role is to provide banking services to undertakings in the mining and industrial sector.
2This 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’).
3On 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 to that decision lists the persons and entities — other than those designated by the United Nations Security Council, mentioned in Annex I — whose funds are to be frozen.
4On 23 January 2012, the Council adopted Decision 2012/35/CFSP amending Decision 2010/413 (OJ 2012 L 19, p. 22). Article 1(7) of that decision inserted a new provision — Article 20(1)(c) — into Decision 2010/413, providing for the freezing of funds of ‘other persons and entities not covered by Annex I that provide support to the Government of Iran, and persons and entities associated with them, as listed in Annex II’.
5On 23 March 2012, the Council adopted Regulation (EU) No 267/2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1). For the purpose of implementing Article 20(1)(c) of Decision 2010/413, Article 23(2)(d) of that regulation provides for the freezing of funds of the persons, entities and bodies listed in Annex IX thereto, who have been identified as ‘being other persons, entities or bodies that provide support, such as material, logistical or financial support, to the Government of Iran, and persons and entities associated with them’.
6On 15 October 2012, the Council adopted Decision 2012/635/CFSP amending Decision 2010/413 (OJ 2012 L 282, p. 58).
7Article 1(8) of Decision 2012/635 amended Article 20(1)(c) of Decision 2010/413, which now applies to ‘other persons and entities not covered by Annex I that provide support to the Government of Iran and entities owned or controlled by them or persons and entities associated with them, as listed in Annex II’.
8Article 2 of Decision 2012/635 added the applicant’s name to the list set out in Annex II to Decision 2010/413.
9Consequently, on 15 October 2012, the Council adopted Implementing Regulation (EU) No 945/2012 implementing Regulation No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 282, p. 16). Article 1 of Implementing Regulation No 945/2012 included the applicant’s name in Annex IX to Regulation No 267/2012.
10In Decision 2012/635 and Implementing Regulation No 945/2012, the following reasons were given in respect of the applicant:‘State owned company which provides financial support to the Government of Iran.’
11Decision 2012/635 and Implementing Regulation No 945/2012 were notified to the applicant by letter of 16 October 2012, in which the Council drew the applicant’s attention to the possibility of submitting observations and of requesting reconsideration.
12By letter of 8 January 2013, the applicant challenged its inclusion in the lists of entities subject to the restrictive measures and asked the Council to reconsider that inclusion. It also asked to be sent the complete file on the basis of which Decision 2012/635 and Implementing Regulation No 945/2012 had been adopted.
13The Council replied by letter of 10 June 2013, to which several documents were attached. The Council stated that it was not in possession of any other documents or information concerning the applicant.
14By letter of 14 March 2014, the Council informed the applicant that it had decided, after reconsideration, to retain its name on the list set out in Annex II to Decision 2010/413 and Annex IX to Regulation No 267/2012. It stated that the applicant was owned by the Iranian State, that the Iranian Government was therefore the recipient of the profits made by the applicant and that the campaign against nuclear proliferation justified the freezing of funds of entities providing financial support to the Iranian Government.
Procedure and forms of order sought by the parties
15By application lodged at the Registry of the General Court on 9 January 2013, the applicant brought the present action.
16Following a change in the composition of the Chambers of the General Court, the Judge-Rapporteur was assigned to the First Chamber, to which the present case was accordingly allocated.
17By letter of 16 April 2014, the applicant modified its heads of claim in response to the letter from the Council of 14 March 2014.
18In the context of measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, the parties were requested, by letter of 10 July 2014, to reply in writing to certain questions. The Council and the applicant submitted their answers on 27 July and 15 August 2014, respectively.
19The parties presented oral arguments and answered the written and oral questions asked by the Court at the hearing on 12 September 2014.
20In the light of the explanations provided in its answers of 15 August 2014, the applicant contends that the Court should:— annul Article 1(8) of Decision 2012/635, in so far as it amends Article 20(1)(c) of Decision 2010/413;— annul Decision 2012/635, Implementing Regulation No 945/2012 and the decision notified by letter of 14 March 2014 in so far as they concern the applicant’s inclusion in the lists set out in Annex II to Decision 2010/413 and Annex IX to Regulation No 267/212;— order the Council to pay the costs.
21The Council contends that the Court should:— dismiss the action;— order the applicant to pay the costs.
Law
22In support of its action, the applicant relies on six pleas in law. The first plea in law alleges that Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012 are unlawful. The second plea in law alleges that the Council did not have the power to adopt Decision 2012/635 and Implementing Regulation No 945/2012 and that the latter has no legal basis. The third plea in law alleges infringement of the obligation to state reasons, of the applicant’s rights of the defence, of the Council’s obligation to reconsider the restrictive measures adopted and of the applicant’s right to effective judicial protection. The fourth plea in law alleges error of law and infringement of the principle of proportionality as regards the notion of support to the Iranian Government. The fifth plea in law alleges error of assessment of the facts. The sixth plea in law alleges infringement of the principle of proportionality.
23The Council contests the merits of the applicants’ pleas. It also contends that the action is inadmissible for several reasons.
24Before addressing the pleas of inadmissibility raised by the Council and the pleas in law relied on by the applicant, it is necessary to examine the Court’s jurisdiction to rule on the applicant’s first head of claim.
The jurisdiction of the Court
25By its first head of claim, the applicant seeks the annulment of Article 1(8) of Decision 2012/635, in so far as it amends Article 20(1)(c) of Decision 2010/413.
26To the extent that it is the subject of the applicant’s first head of claim, Article 1(8) of Decision 2012/635 provides:‘Article 20 [of Decision 2010/413] is amended as follows:(a) paragraphs 1(b) and (c) are replaced by the following:…(c) other persons and entities not covered by Annex I that provide support to the Government of Iran and entities owned or controlled by them or persons and entities associated with them, as listed in Annex II.…’
27It should be recalled that both Article 20(1)(c) of Decision 2010/413 and Article 1(8) of Decision 2012/635 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 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. The Court of Justice has held that, as regards acts adopted on the basis of provisions relating to the CFSP, it is the individual nature of those acts 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 (see, by analogy, judgment of 4 June 2014 in Sina Bank v Council, T‑67/12, EU:T:2014:348, paragraph 38 and the case-law cited).
28The restrictive measures provided for in Article 20(1)(c) of Decision 2010/413, as amended by Article 1(8) of Decision 2012/635, are measures of general application because they apply to situations determined objectively as relating to support to the Iranian Government and to a category of persons envisaged in a general and abstract manner as being ‘persons and entities … as listed in Annex II [to Decision 2010/413]’. Consequently, that provision cannot be classified as a ‘decision providing for restrictive measures against natural or legal persons’ within the meaning of the second paragraph of Article 275 TFEU (see, by analogy, judgment in Sina Bank v Council, cited in paragraph 27 above, EU:T:2014:348, paragraph 39).
29This approach is not affected by the fact that the name of the applicant is referred to in Annex II to Decision No 2010/413. The fact that Article 20(1)(c) of Decision 2010/413, as amended by Article 1(8) of Decision 2012/635, was applied to the applicant does not alter its legal nature as an act of general application (see, by analogy, judgment in Sina Bank v Council, cited in paragraph 27 above, EU:T:2014:348, paragraph 39).
30The claim for annulment of Article 1(8) of Decision 2012/635, in so far as it amends Article 20(1)(c) 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. Consequently, the claim must be dismissed as having been brought before a court that has no jurisdiction to hear it (see, by analogy, judgment in Sina Bank v Council, cited in paragraph 27 above, EU:T:2014:348, paragraph 40).
Admissibility
Compliance with the time-limit for bringing an action as regards Decision 2012/635 and Implementing Regulation No 945/2012
31Under the sixth paragraph of Article 263 TFEU, an action for annulment must be instituted within two months of the publication of the act, or of its notification to the applicant, or, in the absence thereof, of the day on which it came to the knowledge of the applicant, as the case may be.
32In accordance with Article 102(2) of the Rules of Procedure, that time-limit is to be extended on account of distance by a single period of 10 days.
33As regards acts adopting or maintaining restrictive measures against a person or entity, the time-limit for bringing an action for annulment runs from the date of the communication that must be sent to each person or entity (see, to that effect, 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, paragraphs 55 and 59).
34Under Article 24(3) of Decision 2010/413 and Article 46(3) of Regulation No 267/2012, if the address of the person or entity concerned is known, the Council must communicate the acts affecting that person or entity directly.
35In the present case, the Council claims that the letter of 16 October 2012, by which it communicated Decision 2012/635 and Implementing Regulation No 945/2012 to the applicant, was delivered to the applicant on 28 October 2012. In support of its claim, it relies on the acknowledgement of receipt for that letter as well as a screen shot from the website of the Iranian postal service, forwarded by the Belgian postal service at the Council’s request.
36In consequence, the Council considers that the time-limit of two months and ten days expired on 7 January 2013, meaning that the present action, brought on 9 January 2013, was lodged out of time and must therefore be found to be inadmissible.
37In reply, the applicant submits that the Council addressed the letter of 16 October 2012 to the wrong street number, as a result of which the letter was delivered, on 28 October 2012, to a third party located at that number. That third party re-sent the letter of 16 October 2012 by ordinary post to the applicant, which received it on 31 October 2012. In support of its claims, at the hearing the applicant produced a copy of the letter of 16 October 2012 bearing its internal stamp of 31 October 2012, together with a statement from the head of the Iranian postal service concerning the circumstances in which the letter of 16 October 2012 was sent to its destination.
38Accordingly, the applicant takes the view that the action was brought within the time-limit.
39As a preliminary point, it must be noted that since the Council relies on the lateness of the application, it is for the Council to prove the date on which the letter of 16 October 2012 was communicated to the applicant (see, to that effect, judgment of 5 June 1980 in Belfiore v Commission, 108/79, ECR, EU:C:1980:146, paragraph 7).
40It is apparent from the information submitted by the Council that the letter of 16 October 2012 was sent by registered post with acknowledgement of receipt, was addressed to the applicant at ‘No. 2817 Firouzeh Tower (above park junction) Valiaar St. Tehran IRAN’, and was delivered upon signature on 28 October 2012.
41That being the case, as the applicant points out, the address used by the Council is incorrect so far as concerns the street number, as the applicant is located at No 2917 Valiaar St., not No 2817. Furthermore, it is not possible to identify the person or entity to which the Iranian postal service actually delivered the letter from the acknowledgement of receipt.
42Thus, the Council has not succeeded in proving, to the requisite legal standard, that the letter of 16 October 2012 was delivered to the applicant on 28 October 2012.
43Accordingly, in the light of the discussion set out in paragraph 39 above, the uncertainty as to the date on which the letter of 16 October 2012 was communicated, due to the lack of reliable evidence attesting to that date, must benefit the applicant. The applicant’s claim that the letter was only delivered to it on 31 October 2012, after being re-sent to it by a third party, is not refuted by the information submitted by the Council and is borne out by the information submitted by the applicant at the hearing.
44Therefore, 31 October 2012 must be taken to be the date on which the letter of 16 October 2012 was communicated to the applicant.
45In consequence, the time-limit for bringing an action against Decision 2012/635 and Implementing Regulation No 945/2012 expired on 10 January 2013, as a result of which the application, brought on 9 January 2013, was lodged within the time-limit.
46The plea of inadmissibility relied on by the Council must therefore be rejected.
Plea of inadmissibility of the action alleging that all of the pleas in law put forward in support thereof are based on the applicant’s reliance on fundamental rights protection and guarantees
47The Council disputes the admissibility of the action arguing that, as an Iranian public entity, the applicant does not have locus standi to invoke an infringement of its fundamental rights.
48In so far as the Court has jurisdiction to decide on this action, the action falls within the scope of the second paragraph of Article 275 TFEU and the applicant has locus standi to challenge before the Courts of the European Union its inclusion in the list set out in the acts at issue, as that listing is of direct and individual concern to it within the meaning of the fourth paragraph of Article 263 TFEU (see, to that effect, judgment of 28 November 2013 in Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, ECR, EU:C:2013:776, paragraph 50).
49Therefore, the argument as to whether the applicant was entitled to invoke fundamental rights protection and guarantees does not concern the admissibility of the action or even of a plea, but relates to the merits of the case (see, to that effect, judgment in Council v Manufacturing Support & Procurement Kala Naft, cited in paragraph 48 above, EU:C:2013:776, paragraph 51).
50Consequently, the plea of inadmissibility raised by the Council must be rejected as unfounded. In view of the grounds of defence put forward by the Council, this rejection is subject to a review of the applicant’s ability to rely on fundamental rights protection and guarantees, conducted in paragraphs 53 to 58 below.
Substance
51As a preliminary point, it is necessary to review the applicant’s ability to rely on fundamental rights protection and guarantees, which the Council disputes.
52Thereafter, having regard to the way the applicant’s arguments are structured, the first and fourth pleas in law — which concern the lawfulness and the interpretation of the provisions laying down the criterion applied to the applicant — should be considered together, as these two questions are closely linked. The other pleas will be considered in the order in which they appear in paragraph 22 above.
The applicant’s ability to rely on fundamental rights protection and guarantees
53According to the case-law, neither in the Charter of Fundamental Rights of the European Union nor in European Union primary law are there any provisions which state that legal persons which are emanations of States are not entitled to the protection of fundamental rights. On the contrary, the provisions of the Charter which are relevant to the pleas raised by the applicant, and in particular Articles 17, 41 and 47, guarantee the rights of ‘[e]veryone’ or ‘[e]very person’, a form of wording which includes legal persons such as the applicant (judgment of 6 September 2013 in Bank Melli Iran v Council, T‑35/10 and T‑7/11, ECR, EU:T:2013:397, paragraph 65).
54None the less, the Council relies, in this context, on Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), the effect of which is that applications submitted by governmental organisations to the European Court of Human Rights are not admissible.
55First, Article 34 of the ECHR is a procedural provision which is not applicable to procedures before the Courts of the European Union. Secondly, according to the case-law of the European Court of Human Rights, the aim of that provision is to ensure that a State which is a party to the ECHR is not both applicant and defendant before that court (see, to that effect, judgment of the European Court of Human Rights of 13 December 2007 in Islamic Republic of Iran Shipping Lines v. Turkey, no. 40998/98, § 81, ECHR 2007-V). That reasoning is not applicable to the present case (judgment in Bank Melli Iran v Council, cited in paragraph 53 above, EU:T:2013:397, paragraph 67).
56The Council also argues that the justification for the rule on which it relies is that a State is the guarantor of respect for fundamental rights in its territory but cannot qualify for such rights.
57However, even if that justification were applicable in relation to an internal situation, the fact that a State is the guarantor of respect for fundamental rights in its own territory is of no relevance as regards the extent of the rights to which legal persons which are emanations of that same State may be entitled in the territory of third countries (judgment in Bank Melli Iran v Council, cited in paragraph 53 above, EU:T:2013:397, paragraph 69).
58In the light of the foregoing, it must be held that EU law contains no rule preventing legal persons which are emanations of non-Member States from taking advantage of fundamental rights protection and guarantees. Consequently, even if the applicant, as a public entity, is an emanation of the Iranian State, it may rely on those rights before the Courts of the European Union in so far as they are compatible with its status as a legal person (see, to that effect, Bank Melli Iran v Council, cited in paragraph 53 above, EU:T:2013:397, paragraph 70).
First and fourth pleas in law alleging illegality of Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012, and error of law and infringement of the principle of proportionality in relation to the concept of support to the Iranian Government
59In the context of its first plea in law, the applicant submits that the provisions on which the restrictive measures affecting it are based, namely Article 20(1)(c) of Decision 2010/413, as amended by Decision 2012/35 and Decision 2012/635, and Article 23(2)(d) of Regulation No 267/2012, infringe the principles of proportionality and legal certainty and the right to property, in so far as they use imprecise, vague and unintelligible criteria to define the persons and entities that may be subject to restrictive measures.
60First, the criterion of ‘support to the Iranian Government’ laid down in Article 20(1)(c) of Decision 2010/413, as amended by Decision 2012/35 and Decision 2012/635, and in Article 23(2)(d) of Regulation No 267/2012 (‘the criterion at issue’), is excessively vague.
61Second, the same observation applies to the notion of ‘association’, also used in those provisions.
62Third, Article 20(1)(c) of Decision 2010/413 is unintelligible as regards the notion of support provided to entities other than the Iranian Government.
63Consequently, according to the applicant, Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012 are excessively vague, as a result of which they are unlawful and must therefore be held not to apply to the applicant, pursuant to Article 277 TFEU.
64In the context of the fourth plea in law, the applicant contends that the criterion at issue, even if it were lawful, only covers the situation where specific assistance, linked to nuclear proliferation activities, is provided by the person or entity concerned. Thus, that notion only covers either direct support to nuclear proliferation activities or support to the Government in the implementation of the Iranian nuclear programme.
65The applicant refers, in that regard, to the objectives underpinning the restrictive measures in question, which, in its opinion, are solely to prevent nuclear proliferation and not to encroach upon areas unconnected with such proliferation.
66From this, the applicant infers that the Council committed an error of law and infringed the principle of proportionality by adopting a contrary interpretation of the criterion at issue. It states that this interpretation confers an excessive and arbitrary power on the Council enabling it, inter alia, to freeze the funds of all entities owned by the Iranian Government or linked to it.
67The Council claims that the first and fourth pleas in law are inadmissible pursuant to Article 44(1)(c) of the Rules of Procedure. It argues that those pleas are contradictory since the applicant relies on the vagueness of the criterion at issue at the same time as arguing that it only covers support linked to nuclear proliferation.
68The Council also disputes the merits of the applicant’s arguments.
69As a preliminary point, the plea of inadmissibility relied on by the Council must be rejected. It is apparent from the applicant’s written pleadings that the fourth plea in law is submitted only if the Court rejects the first plea in law. Furthermore, in its pleadings, the Council was able to reply to both pleas in law, and the Court is also able to assess their merits.
70As to the substance, it should be recalled that Article 20(1)(c) of Decision 2010/413, as last amended by Decision 2012/635, provides for the freezing of all funds and economic resources belonging to ‘other persons and entities not covered by Annex I that provide support to the Government of Iran and entities owned or controlled by them or persons and entities associated with them, as listed in Annex II’. Article 23(2)(d) of Regulation No 267/2012 refers to ‘other persons, entities or bodies that provide support, such as material, logistical or financial support, to the Government of Iran, and persons and entities associated with them’.
71The applicant, for its part, was identified by the Council in the statement of reasons for the contested acts as a ‘[s]tate owned company which provides financial support to the Government of Iran’.
72The consequence of this statement of reasons is that the Court must, at the outset, reject as ineffective the applicant’s arguments alleging that the notion of ‘association’ is vague and that Article 20(1)(c) of Decision 2010/413 is unintelligible as regards the notion of support provided to entities other than the Iranian Government (see paragraphs 61 and 62 above). It is clear from the statement of reasons referred to in the previous paragraph that, according to the Council, the applicant provides support or assistance directly to the Iranian Government, rather than being ‘associated’ or providing support to entities other than the Iranian Government. Accordingly, even if the applicant’s arguments concerning the notion of ‘association’ and the provision of support to entities other than the Iranian Government are well founded, they would not justify the annulment of the contested acts in so far as the listing of the applicant is concerned.
73Consequently, it is only necessary to examine the arguments concerning the alleged vagueness of the criterion at issue and how that criterion should be interpreted.
74It should be noted that the Courts of the European Union must, in accordance with the powers conferred on them by the Treaties, ensure the review, in principle the full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the European Union legal order. That obligation is expressly laid down by the second paragraph of Article 275 TFEU (see judgments of 28 November 2013 in Council v Fulmen and Mahmoudian, C‑280/12 P, ECR, EU:C:2013:775, paragraph 58 and the case-law cited, and in Council v Manufacturing Support & Procurement Kala Naft, cited in paragraph 48 above, EU:C:2013:776, paragraph 65 and the case-law cited).
75The fact remains that the Council enjoys a broad discretion as regards the general and abstract definition of the legal criteria and procedures for adopting restrictive measures. Consequently, rules of general application defining these criteria and procedures — such as the provisions of Decision 2010/413 and Regulation No 267/2012 providing for the criterion at issue, referred to in the first and fourth pleas in law — are subject to a limited judicial review, restricted to checking that the rules governing procedure and the statement of reasons have been complied with, that the facts are materially accurate, and that there has been no manifest error of assessment of the facts or misuse of power. That limited review applies, especially, to the assessment of the considerations of appropriateness on which the restrictive measures are based (see, to that effect and by analogy, judgments of 9 July 2009 in Melli Bank v Council, T‑246/08 and T‑332/08, ECR, EU:T:2009:266, paragraphs 44 and 45, and of 14 October 2009 in Bank Melli Iran v Council, T‑390/08, ECR, EU:T:2009:401, paragraphs 35 and 36).
76It must be acknowledged that, by its very broad formulation, the criterion at issue confers a discretion on the Council. However, in contrast to the applicant’s arguments, this discretion is compatible with the principles of proportionality and legal certainty, as well as with the right to property, and is not excessive or arbitrary.
77First, it is true that the principle of legal certainty, which is one of the general principles of EU law and requires, particularly, that rules of law be clear, precise and predictable in their effects, in particular where they may have negative consequences on individuals and undertakings (judgment of 18 November 2008 in Förster, C‑158/07, ECR, EU:C:2008:630, paragraph 67), applies as regards restrictive measures such as those at issue in the present case, which have a considerable impact on the rights and freedoms of the persons and entities concerned (see, to that effect, judgment of 16 July 2014 in National Iranian Oil Company v Council, T‑578/12, under appeal, EU:T:2014:678, paragraphs 112, 113, 116 and 117).
78Second, the criterion at issue forms part of a legal framework which is clearly delimited by the objectives pursued by the rules governing restrictive measures against Iran. In that regard, recital 13 in the preamble to Decision 2012/35, which inserted that criterion into Article 20(1) of Decision 2010/413, states expressly that the freezing of funds has to be applied to persons and entities ‘providing support to the Government of Iran allowing it to pursue proliferation-sensitive nuclear activities or the development of nuclear weapon delivery systems, in particular persons and entities providing financial, logistical or material support to the Government of Iran’. Article 23(2)(d) of Regulation No 267/2012 also states that this support may be ‘material, logistical or financial’ (judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraph 118).
79The criterion at issue is not therefore aimed at any form of support to the Iranian Government, but covers forms of support which, by their quantitative or qualitative significance, contribute to the pursuit of Iran’s nuclear activities. Interpreted, subject to review by the European Union Courts, by reference to the objective of applying pressure on the Iranian Government to end activities posing a risk of nuclear proliferation, the criterion at issue thus objectively defines a limited category of persons and entities that may be subject to fund-freezing measures (judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraph 119).
80In view of the aims of fund-freezing measures mentioned in paragraph 79 above, the criterion at issue clearly shows that it is directed, in a targeted and selective way, at the activities specific to the person or entity concerned which, even if they do not, as such, have any direct or indirect link with nuclear proliferation, are nevertheless capable of encouraging it, by providing the Iranian Government with resources or facilities of a material, financial or logistical nature allowing it to pursue such proliferation (judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraph 120).
81This finding also means that the Court must reject the applicant’s argument submitted under the fourth plea in law that the criterion at issue can only cover either direct support to nuclear proliferation activities or support to the Government in the implementation of the Iranian nuclear programme.
82In this respect, the applicant confuses the criterion at issue, which is the only relevant criterion in this case, with the criterion relating to the provision of ‘support for Iran’s proliferation-sensitive nuclear activities or the development of nuclear weapon delivery systems’, set out in Article 20(1)(b) of Decision 2010/413 and Article 23(2)(a) of Regulation No 267/2012, entailing a certain degree of connection to Iran’s nuclear activities (see, to that effect, judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraph 139).
83As indicated in paragraph 78 above, as regards the criterion at issue, recital 13 in the preamble to Decision 2012/35 expressly states that fund-freezing measures should be applied to persons and entities providing support to the Iranian Government allowing it to pursue nuclear proliferation activities. The existence of a link between the provision of support to the Iranian Government and the pursuit of nuclear proliferation activities is thus expressly set out in the applicable legislation; the criterion at issue is aimed at depriving the Iranian Government of its sources of revenue, in order to oblige it to end the development of its nuclear proliferation programme as a result of insufficient financial resources (judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraph 140).
84Thus, contrary to what the applicant claims, the criterion at issue may be applied to any entity that provides support, particularly financial support, to the Iranian Government. By contrast, it does not cover all entities owned by the Iranian Government or linked to it, or Iranian taxpayers as a whole.
85Third, it should be recalled that the discretion conferred on the Council by the criterion at issue is counterbalanced by an obligation to state reasons and by strengthened procedural rights, guaranteed by the case-law (judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraph 122; also see, by analogy, judgments of 21 November 1991 in Technische Universität München, C‑269/90, ECR, EU:C:1991:438, paragraph 14, and 18 July 2013 in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, ECR, EU:C:2013:518, paragraph 114).
86In the third plea in law in this case, the applicant argues that the Council did not protect these guarantees. The merits of its arguments in that respect will be examined by the Court in paragraphs 121 to 169 below.
87In the light of the discussion set out in paragraphs 74 to 85 above, it must be held that the criterion at issue limits the Council’s discretion, by establishing objective criteria, and ensures the level of predictability required under EU law (judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraph 123; also see, by analogy, judgment of 22 May 2008 in Evonik Degussa v Commission, C‑266/06 P, EU:C:2008:295, paragraph 58).
88Consequently, this criterion is compatible with the principle of legal certainty and cannot be regarded as arbitrary.
89In addition, since the relevant provisions of Decision 2010/413 and Regulation No 267/2012 provide for the adoption of fund-freezing measures on the basis of the criterion at issue, any interference with the right to property resulting from the application of that criterion is consistent with Article 52(1) of the Charter of Fundamental Rights, stating that any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law (judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraph 124).
90According to the case-law, by virtue of the principle of proportionality, which is one of the general principles of EU law, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures should be appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment in Bank Melli Iran v Council, cited in paragraph 53 above, EU:T:2013:397, paragraph 179 and the case-law cited).
91In the present case, in the light of the prime importance of the preservation of peace and international security, the Council was entitled to take the view, without exceeding the bounds of its discretion, that the interference with the right to property resulting from the application of the criterion at issue was appropriate and necessary in order to apply pressure on the Iranian Government to oblige it to end its nuclear proliferation activities (see, by analogy, judgment of 13 March 2012, Melli Bank v Council, C‑380/09 P, ECR, EU:C:2012:137, paragraph 61).
92Consequently, the criterion at issue, as interpreted in paragraphs 76 to 84 above, is compatible with the principle of proportionality and does not confer an excessive power on the Council.
93In the light of all of the foregoing, the first plea in law must be rejected as in part ineffective and in part unfounded and the fourth plea in law must be rejected as unfounded.
Second plea in law, alleging that the Council did not have the power to adopt Decision 2012/635 and Implementing Regulation No 945/2012 and that the latter has no legal basis
94The applicant submits that the Council did not have the power to adopt Decision 2012/635 and Implementing Regulation No 945/2012. It recalls that, pursuant to Article 215(2) TFEU, the Council may adopt restrictive measures acting upon a proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission.
95In the present case, in the first place, Decision 2012/635 was adopted by the Council acting alone, so that the requirement set out in Article 215(2) TFEU was not complied with. In that respect, Article 215 TFEU draws no distinction between measures adopted under the CFSP and other measures, and therefore applies to decisions adopted pursuant to Article 29 TEU, such as Decision 2012/635.
96In the second place, in so far as Implementing Regulation No 945/2012 implements Decision 2012/635, it has no legal basis and is vitiated by lack of powers.
97In the third place, Article 46(2) of Regulation No 267/2012 is contrary to Article 215(2) TFEU in so far as it confers on the Council, acting alone, the power to amend Annex IX listing the persons, entities and bodies to be subject to restrictive measures. Consequently, Article 46(2) of Regulation No 267/2012 should be held not to apply to the applicant, in accordance with Article 277 TFEU, as a result of which, in the applicant’s opinion, Implementing Regulation No 945/2012, adopted under it, has no legal basis and is vitiated by lack of powers for this reason also.
98The Council contests the merits of the applicants’ arguments.
–The procedure for adopting Decision 2012/635
99It should be noted, as the Council does, that Decision 2012/635 is not based on Article 215 TFEU, but only on Article 29 TEU, which is included in Chapter 2 of Title V of the EU Treaty concerning the CFSP and entitles the Council to act alone when adopting the decisions envisaged therein.
100Under Article 215(2) TFEU, ‘[w]here a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-State entities’.
101Thus, the prior adoption of a decision in accordance with Chapter 2 of Title V of the EU Treaty — such as, in the present case, Decision 2012/635, adopted under Article 29 TEU — is a prerequisite in order for the Council to be able to adopt restrictive measures under the powers conferred on it by Article 215(2) TFEU. However, this finding does not mean that the adoption of a decision such as Decision 2012/635 is subject to the procedural requirements set out in Article 215(2) TFEU, rather than the requirements set out in Article 29 TEU itself.
102Accordingly, the applicant’s first argument must be rejected, as the Council had the power under Article 29 TEU to adopt Decision 2012/635 alone.
103In consequence, the applicant’s second argument, which is based on the incorrect premiss that the Council did not have the power to adopt Decision 2012/635, must also be rejected.
–Compatibility of Article 46(2) of Regulation No 267/2012 with Article 215 TFEU
104The Council submits that Article 46(2) of Regulation No 267/2012, which entitles it to amend Annex IX thereto containing the list of persons, entities and bodies to be subject to restrictive measures, was adopted under Article 291(2) TFEU, which provides that ‘[w]here uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or, in duly justified specific cases and in the cases provided for in Articles 24 and 26 [TEU], on the Council’.
105As a preliminary point, it must be stated that neither Article 215 TFEU nor any other provision of primary law precludes a regulation adopted on the basis of Article 215 TFEU from conferring implementing powers on the Commission or on the Council under the conditions laid down in Article 291(2) TFEU, where uniform conditions for implementing certain restrictive measures provided for by that regulation are needed. In particular, it is not apparent from Article 215 TFEU that individual restrictive measures must be adopted under the procedure provided for in Article 215(1) TFEU. Therefore, in the absence of any indication limiting the possibility of conferring implementing powers, the application of the provisions of Article 291(2) TFEU cannot be ruled out as far as concerns restrictive measures based on Article 215 TFEU (judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraph 54).
106Furthermore, the procedure provided for in Article 215(1) TFEU, in which the Council acts on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and from the Commission, may be inappropriate for the purpose of adopting mere implementing measures. By contrast, Article 291(2) TFEU makes it possible for a more effective implementing procedure to be laid down, tailored to the type of measure to be implemented and each institution’s capacity for action. Thus, the considerations that led the framers of the TFEU to permit, in Article 291(2) thereof, the allocation of implementing powers apply as regards both the implementation of acts based on Article 215 TFEU and the implementation of other legally binding acts (judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraph 55).
107Consequently, it must be considered that the Council was entitled to provide for implementing powers, under Article 291(2) TFEU, for the adoption of individual fund-freezing measures implementing Article 23(2) of Regulation No 267/2012 (judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraph 56).
108That being the case, it remains to be determined whether the Council complied with the conditions set out in Article 291(2) TFEU when it reserved the implementing powers at issue to itself rather than conferring them on the Commission.
109It should be recalled that the aim of regulations, such as Regulation No 267/2012, which impose restrictive measures on the basis of Article 215 TFEU, is to implement — within the scope of the TFEU — decisions adopted under Article 29 TEU in the context of the CFSP. Consequently, Regulation No 267/2012 falls within the ambit of the objectives and the implementation of the actions of the European Union in the field of the CFSP (see, to that effect, judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraph 60).
110In particular, on account of their purpose, nature and objectives, restrictive measures adopted under Article 23(2) of Regulation No 267/2012, which aim to put pressure on the Islamic Republic of Iran to end nuclear proliferation, are more closely related to the implementation of the CFSP than to the exercise of the powers conferred on the European Union by the TFEU (see, to that effect, judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraphs 66 and 67).
111In the context of the TEU, it is clear from a combined reading of the second subparagraph of Article 24(1) TEU, Article 29 TEU and Article 31(1) TEU that, as a general rule, the Council, acting unanimously, is called upon to take decisions in the sphere of the CFSP (see, to that effect, judgment of 19 July 2012 in Parliament v Council, C‑130/10, ECR, EU:C:2012:472, paragraph 47).
112In particular, it is the Council, acting alone, that decides on the inclusion of the name of a person or entity in Annex II to Decision 2010/413. It is precisely this inclusion that is implemented, within the scope of the TFEU, by the adoption of a fund-freezing measure under Article 23(2) of Regulation No 267/2012.
113Accordingly, having regard to the particularities of the measures adopted under Article 23(2) of Regulation No 267/2012 and the need to ensure consistency between the list set out in Annex II to Decision 2010/413 and that set out in Annex IX to Regulation No 267/2012, and in view of the fact that the Commission does not have access to the data held by the information services of the Member States which may prove necessary for the implementation of those measures, the Council was right to consider that the implementation of Article 23(2) of Regulation No 267/2012, relating to the freezing of funds, was a specific case within the meaning of Article 291(2) TFEU, and it was therefore entitled to reserve the power to implement it to itself, in Article 46(2) of that regulation (see, to that effect, judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraphs 68 to 73).
114As regards the question whether the existence of a specific case was duly substantiated, it should be noted that the Council did not expressly state in Regulation No 267/2012 that it was reserving implementing powers to itself for the reasons summarised in paragraph 113 above. However, the fact remains that the justification for reserving implementation to the Council, in Article 46(2) of Regulation No 267/2012, is clear from a combined reading of the recitals in the preamble to, and the provisions of, that regulation, in the context of the organisation of the relevant provisions of the TEU and TFEU on the freezing of funds (judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraph 77).
115First, in recital 28 in the preamble to Regulation No 267/2012, the Council expressly referred to the exercise of its powers concerning ‘the designation of persons subject to [fund-]freezing measures’ and to its own involvement in the procedure for reviewing listing decisions on the basis of observations or new evidence received from the persons concerned (judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraph 78).
116Second, the provisions of Article 23(2) of Regulation No 267/2012, read in conjunction with recital 14 in the preamble to that regulation, make it possible to understand that the implementation of fund-freezing measures against persons or entities is more closely related to the Council’s sphere of action in the context of the CFSP than to measures of an economic nature usually adopted in the field of the TFEU (judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraphs 79 and 80).
117Third, the parallelism between the restrictive measures adopted under Decision 2010/413 and those adopted under Regulation No 267/2012 is made clear in recital 11 et seq. in the preamble to that regulation, which show that the regulation implements the amendments to Decision 2010/413 inserted by Decision 2012/35. Similarly, the need to ensure consistency between the list set out in Annex II to Decision 2010/413 and that set out in Annex IX to Regulation No 267/2012 is apparent from the recitals in the preamble to the implementing regulations amending Annex IX, particularly recital 2 in the preamble to Regulation No 945/2012, which expressly refers to Decision 2012/635 (judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraph 81).
118Accordingly, the specific reasons underpinning the allocation of implementation powers to the Council in Article 46(2) of Regulation No 267/2012 are sufficiently comprehensible having regard to the relevant provisions of, and the background to, that regulation (judgment in National Iranian Oil Company v Council, cited in paragraph 77 above, under appeal, EU:T:2014:678, paragraph 82).
119Consequently, the requirements set out in Article 291(2) TFEU, in order for implementing powers to be granted to the Council, were satisfied as regards Article 46(2) of Regulation No 267/2012, with the result that it cannot be claimed that the Council infringed Article 215 TFEU.
120In the light of this finding, the Court must reject the applicant’s third argument and, therefore, the second plea in law in its entirety.
Third plea in law, alleging infringement of the obligation to state reasons, of the applicant’s rights of the defence, including its right of access to the file, of the Council’s obligation to reconsider the restrictive measures adopted and of the applicant’s right to effective judicial protection
121The applicant submits that, by adopting the contested acts, the Council infringed the obligation to state reasons, the applicant’s rights of the defence, including its right of access to the file, the Council’s obligation to reconsider the restrictive measures adopted and the applicant’s right to effective judicial protection
–The obligation to state reasons
122According 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, second, to enable the latter to review the legality of that act (see judgment of 15 November 2010 in Council v Bamba, C‑417/11 P, ECR, EU:C:2012:718, paragraph 49 and the case-law cited).
123The 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 act 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 judgment in Council v Bamba, cited in paragraph 122 above, EU:C:2012:718, paragraph 50 and the case-law cited).
124Where the person concerned is not afforded the opportunity to be heard before the adoption of an initial decision to freeze funds, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling the person concerned, at least after the adoption of that decision, to make effective use of the legal remedies available to him in order to challenge the lawfulness of that decision (see judgment in Council v Bamba, cited in paragraph 122 above, EU:C:2012:718, paragraph 51 and the case-law cited).
125Therefore, the statement of reasons for an act of the Council which imposes a measure freezing funds must identify the actual and specific reasons why the Council considers, in the exercise of its discretion, that that measure must be adopted in respect of the person concerned (see judgment in Council v Bamba, cited in paragraph 122 above, EU:C:2012:718, paragraph 52 and the case-law cited).
126The statement of reasons required by Article 296 TFEU must, however, be appropriate to the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the act in question, the nature of the reasons given and the interest which the addressees of the act, 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 (see judgment in Council v Bamba, cited in paragraph 122 above, EU:C:2012:718, paragraph 53 and the case-law cited).
127In particular, the reasons given for an act adversely affecting a person are sufficient if that act was adopted in circumstances known to that person which enable him to understand the scope of the act concerning him (see judgment in Council v Bamba, cited in paragraph 122 above, EU:C:2012:718, paragraph 54 and the case-law cited).
128In the present case, the applicant contends that the reasons for Decision 2012/635 and Implementing Regulation No 945/2012 are not stated to the requisite legal standard in so far as the inclusion of its name is concerned.
129According to the applicant, the Council did not identify which criterion among those provided for in Article 20 of Decision 2010/413 and Article 23 of Regulation No 267/2012 it relied on in order to adopt the restrictive measures affecting the applicant.
130In addition, the Council did not explain the manner in which the applicant allegedly provided financial support to the Iranian Government, nor did it make clear the nature or extent of such support. In particular, it did not identify the specific financial transactions which could justify the measures taken against the applicant, or the link between those transactions and nuclear proliferation. These inadequacies in the statement of reasons cannot be compensated for by the Council’s subsequent assertion, put forward in its defence, that the adoption of fund-freezing measures against the applicant is justified by the dividend payments it made, in its capacity as public undertaking, to its shareholder.
131The Council contests the merits of the applicant’s arguments.
132As a preliminary point, it should be recalled that the applicant was identified as a ‘[s]tate owned company which provides financial support to the Government of Iran’.
133First, the statement of reasons clearly shows that the restrictive measures were directed at the applicant on the basis of the criterion at issue.
134Second, it is true that the statement of reasons concerning the applicant does not contain details on the manner in which the support was allegedly provided to the Iranian Government or its extent; the only information given by the Council is that the support is of a financial nature.
135However, despite the conciseness of the reasons given, the applicant was able to understand the key facts used against it by the Council and to defend itself appropriately.
136In the fourth plea in law put forward in its application, the applicant expressly referred to the situation whereby a ‘natural or legal person other than a State’ funds, ‘through his/its taxes or, potentially, as regards public undertakings, through dividends distributed to the shareholder, a budget in which the sums paid are indissociable from revenues as a whole and are not, by definition, earmarked to cover specific expenditure, particularly State activities considered to be unlawful’, to argue that, in such a situation, the notion of support to the Iranian Government did not apply.
137Thus, the applicant was able to ascertain from the reasons given for its listing that the Council relied on the fact that, as a State undertaking, it provided financial support to the Iranian Government through the transfer of its financial resources. It was also able to challenge the relevance and accuracy of that information.
138Similarly, the statement of reasons given by the Council enables the Court to review the legality of the contested acts.
139Accordingly, the statement of reasons given in Decision 2012/635 and Implementing Regulation No 945/2012, although exceptionally concise, is sufficient.
140Third, this finding means that the information the Council provided in its defence does not constitute an a posteriori statement of reasons which cannot be taken into consideration by the Court, nor does it demonstrate that the statement of reasons given was inadequate. This information merely clarifies and explains the crucial factor relied on by the Council and identified by the applicant in the statement of reasons for Decision 2012/635 and Implementing Regulation No 945/2012.
141Having regard to all of the foregoing, the complaint alleging infringement of the obligation to state reasons must be rejected.
–Access to the file
142The applicant submits that it only obtained access to the file after expiry of the time-limit set for requesting reconsideration of the measures affecting it. Such unduly late disclosure is not compatible with the principle of respect for the rights of the defence.
143The Council contests the merits of the applicant’s arguments.
144According to the case-law, when sufficiently precise information has been communicated, enabling the entity concerned to make its point of view on the evidence adduced against it by the Council known to advantage, the principle of respect for the rights of the defence does not mean that the institution is obliged spontaneously to grant access to the documents in its file. It is only on the request of the party concerned that the Council is required to provide access to all non-confidential official documents concerning the measure at issue (see judgment in Bank Melli Iran v Council, cited in paragraph 53 above, EU:T:2013:397, paragraph 84 and the case-law cited).
145In the present case, the applicant requested access to the file on 8 January 2013, that is to say, the day before it lodged its application on 9 January 2013. The Council replied to that request on 10 June 2013.
146Accordingly, first of all, the Council cannot be criticised for failing to reply to the request for access to the file before the action was lodged, as the interval of one day between the request and the lodging of the action was too short.
147Next, neither the letter of 16 October 2012 by which the Council notified the applicant of Decision 2012/635 and Implementing Regulation No 945/2012, nor these acts themselves, nor the notice for the attention of the person to which the restrictive measures provided for in Decision 2010/413, as implemented by Decision 2012/635, and in Regulation No 267/2012, as implemented by Implementing Regulation No 945/2012 apply (OJ 2012 C 312, p. 21), lay down any time-limit for the submission of observations by the entities affected by the restrictive measures. Accordingly, the argument that the applicant only obtained access to the file after the expiry of such a time-limit clearly has no basis in fact.
148Lastly, it should be pointed out that the five-month period for replying is unreasonable.
149In this connection, the Council refers to the need to secure the agreement of a Member State before disclosing the documents at issue. This argument cannot be accepted since, according to the case-law, when the Council intends to rely on information provided by a Member State in order to adopt restrictive measures affecting an entity, it is obliged to ensure, before adopting those measures, that the entity concerned can be notified of the information in question in good time so that it is able effectively to make known its point of view (judgment of 6 September 2013 in Persia International Bank v Council, T‑493/10, ECR (Extracts), EU:T:2013:398, paragraph 84).
150The fact remains that the applicant has not put forward specific arguments to show that the unreasonable period for replying actually made its defence more difficult.
151In addition, according to the case-law, the belated disclosure of a document on which the Council relied in order to adopt or maintain restrictive measures to which an entity is subject does not constitute a breach of the rights of the defence that would justify the annulment of acts adopted previously unless it is established that the restrictive measures concerned could not have been lawfully adopted or maintained if the document belatedly disclosed had to be excluded as inculpatory evidence (judgment in Persia International Bank v Council, cited in paragraph 149 above, EU:T:2013:398, paragraph 85).
152In the present case, it is apparent from the examination conducted in paragraphs 170 to 189 below that the restrictive measures affecting the applicant are well founded, even without taking into account the documents disclosed by the Council in its reply of 10 June 2013. Accordingly, the infringement of the obligation to grant access to the file in good time does not justify the annulment of the contested acts.
153In the light of the foregoing, the present complaint must be rejected.
–The obligation to conduct an annual review of restrictive measures adopted
154In its amendment to the heads of claim of 16 April 2014, the applicant submits that the Council failed to fulfil its obligation to conduct an annual review of the restrictive measures adopted, as the latter only notified the former that those measures would continue on 14 March 2014.
155Under Article 26(3) of Decision 2010/413, ‘[t]he measures referred to in Articles 19(1)(b) and (c) and 20(1)(b) and (c) shall be reviewed at regular intervals and at least every 12 months’.
156Similarly, Article 46(6) of Regulation No 267/2012 states that ‘[t]he list in Annex IX shall be reviewed in regular intervals and at least every 12 months’.
157Accordingly, the Council was indeed required to review the restrictive measures affecting the applicant within 12 months from the adoption of Decision 2012/635 and Implementing Regulation No 945/2012.
158The Council argues that it reconsidered the applicant’s listing on two occasions when it adopted, first, Council Decision 2013/270/CFSP of 6 June 2013 amending Decision 2010/413 (OJ 2013 L 156, p. 10) and Council Implementing Regulation (EU) No 522/2013 of 6 June 2013 implementing Regulation No 267/2012 (OJ 2013 L 156, p. 3) and, second, Council Decision 2013/661/CFSP of 15 November 2013 amending Decision 2010/413 (OJ 2013 L 306, p. 18) and Council Implementing Regulation (EU) No 1154/2013 of 15 November 2013 implementing Regulation No 267/2012 (OJ 2013 L 306, p. 3).
159However, it should be noted that none of the acts referred to by the Council state that it conducted a periodic review of all of the listings in Annex II to Decision 2010/413 and Annex IX to Regulation No 267/2012. Nor do the acts at issue specifically relate to the applicant’s listing.
160Accordingly, it must be concluded that the Council did not review the restrictive measures affecting the applicant within the time-limit set by Decision 2010/413 and Regulation No 267/2012.
161That being the case, it is necessary to examine whether this infringement of the obligation to reconsider the restrictive measures adopted justifies the annulment of the contested acts.
162It should be noted that the aim of the obligation at issue is to ensure that the continued justification for the restrictive measures adopted is regularly reviewed.
163In the present case, it is not disputed that, when this complaint was raised by the applicant in its amendment to the heads of claim of 16 April 2014, the Council had already conducted the review at issue and had notified the applicant of the outcome thereof by letter of 14 March 2014.
164Accordingly, the aim of the provisions requiring the periodic review of the restrictive measures was observed, although late, and the Council’s failure to comply with the time-limit for review does not, therefore, adversely affect the situation of the applicant.
165In consequence, without prejudice to the applicant’s right to claim compensation for any damage sustained as a result of the failure to comply with the time-limit for review, under Article 340 TFEU, it cannot rely on the delay at issue to secure the annulment of the restrictive measures adopted or continued by the contested acts.
166Consequently, this complaint must be rejected.
–The other alleged infringements
167The applicant submits that the defective statement of reasons for Decision 2012/635 and Implementing Regulation No 945/2012 entails an infringement of its rights of the defence, including the right to reconsideration of the restrictive measures adopted, and of its right to effective judicial protection. In view of the vagueness of the statement of reasons provided, in order to defend itself properly the applicant is required not only to challenge the detailed matters of law or of fact relied on by the Council, but also to adduce negative evidence that it did not provide support to the Iranian Government or to the Iranian nuclear programme.
168As is apparent from paragraphs 122 to 141 above, the reasons for Decision 2012/635 and Implementing Regulation No 945/2012 are stated to the requisite legal standard, with the result that this complaint is based on an incorrect premiss.
169Consequently, this complaint and the third plea in law in its entirety must be rejected.
Fifth plea in law, alleging error of assessment of the facts
170As noted in paragraph 74 above, the Courts of the European Union must, in accordance with the powers conferred on them by the TFEU, ensure the review, in principle the full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the European Union legal order. That obligation is expressly laid down by the second paragraph of Article 275 TFEU (see judgments in Council v Fulmen and Mahmoudian, cited in paragraph 74 above, EU:C:2013:775, paragraph 58 and the case-law cited, and Council v Manufacturing Support & Procurement Kala Naft, cited in paragraph 74 above, EU:C:2013:776, paragraph 65 and the case-law cited).
171Those fundamental rights include, inter alia, the right to effective judicial protection (see judgment in Council v Fulmen and Mahmoudian, cited in paragraph 74 above, EU:C:2013:775, paragraph 59 and the case-law cited).
172The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights also requires that the Courts of the European Union are to ensure that the decision, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the allegations factored in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (see judgment in Council v Fulmen and Mahmoudian, cited in paragraph 74 above, EU:C:2013:775, paragraph 64 and the case-law cited).
173In that respect, it is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (see judgment in Council v Fulmen and Mahmoudian, cited in paragraph 74 above, EU:C:2013:775, paragraph 66 and the case-law cited).
174In the present case, it is therefore necessary to determine whether the Council was right to consider, when adopting the contested acts, that the applicant could be subject to restrictive measures as an entity providing support to the Iranian Government, in the form of financial assistance.
175In the first place, the applicant reiterates that the criterion of support to the Iranian Government only covers the situation where specific assistance, linked to nuclear proliferation activities, is provided by the entity concerned. The applicant does not provide such support, since its activities are intended for private undertakings.
176In this connection, it is sufficient to refer back to paragraphs 74 to 93 above, which show that the criterion of support to the Iranian Government may also apply to entities which are not involved themselves in nuclear proliferation.
177In the second place, the applicant claims that, in contrast to what is stated in the reasons for the contested acts, it does not provide financial support to the Iranian Government.
178The applicant explains, first of all, that its function is not to pay dividends to the Iranian Government.
179Next, the applicant admits paying a proportion of its profits to the national treasury, which is subordinate to the Iranian Ministry of Finance, in addition to income tax. However, the applicant explains that this obligation, to which all public companies in Iran are subject under Paragraph 17 of the Law on the budget for the Iranian year 1389 (‘Paragraph 17’), cannot constitute financial support to the Iranian Government within the meaning of the criterion at issue since it does not amount to a dividend, being more akin to a tax or a parafiscal charge.
180Lastly, the applicant argues that the sums it pays to the national treasury under Paragraph 17 are not used freely by the Iranian Government, but are earmarked for the performance of common interest activities and public service duties to the benefit of the Iranian people. The applicant also states that the sums at issue are in particular reinvested, together with other State resources, in increases in its share capital.
181As a preliminary point, it should be noted that the fact that the applicant’s function is not to pay dividends to the Iranian Government, even if proven, does not mean that it does not actually provide financial support to the Iranian Government.
182As is apparent from the information provided by the applicant itself, between the financial years 1387 and 1391 under the Iranian calendar (20 March 2008 to 20 March 2013, ‘the reference period’), it transferred a total of IRR 1687181 million to the national treasury pursuant to the obligation laid down in Paragraph 17.
183Contrary to the applicant’s claims, these sums are not comparable to taxes or parafiscal charges and cannot, for that reason, avoid being classified as financial support as referred to in the criterion at issue. As the applicant itself admits, the obligation laid down in Paragraph 17 applies in addition to income tax. This obligation only applies to Iranian public companies and cannot, therefore, be considered to form part of the general fiscal or parafiscal system in Iran.
184As to the alleged budgetary earmarking of the sums transferred pursuant to the obligation laid down in Paragraph 17, the applicant does not substantiate its claims in any way. In any event, the wording of the alleged earmarking, as produced by the applicant, is so general that it is, a priori, capable of applying to all State expenditure. Accordingly, the existence of this earmarking, even if proven, does not mean that the sums transferred pursuant to the obligation laid down in Paragraph 17 in respect of the reference period do not amount to financial support provided to the Iranian Government within the meaning of the criterion at issue.
185In that respect, it is apparent from the documents submitted by the applicant in reply to a question from the Court that, in 2012, its share capital was increased by IRR 1054102 million. This sum is considerably lower than the total amount of IRR 1687181 million transferred by the applicant to the national treasury pursuant to the obligation laid down in Paragraph 17 in respect of the reference period. Accordingly, the increase in the applicant’s share capital does not permit the inference that the applicant did not provide financial support to the Iranian Government during that period.
186In the light of the foregoing, it must be concluded that, in respect of the reference period, the applicant paid considerable amounts to the Iranian national treasury which constitute financial support to the Iranian Government. Consequently, the Council was entitled to make the applicant subject to restrictive measures as an entity that provided support to the Iranian Government.
187The applicant further maintains that, in contrast to the requirements of the case-law cited in paragraph 173 above, the Council did not adduce evidence to substantiate its claims.
188It is apparent from the review carried out in paragraphs 175 to 186 above that the applicant does not actually challenge the accuracy of the crucial fact justifying the restrictive measures affecting it, namely that it paid a proportion of its profits in respect of the reference period to the national treasury. In the absence of such a challenge, the Council is not required to adduce evidence to substantiate that fact, as is apparent from the case-law cited in paragraph 173 above.
189In the light of the foregoing, the fifth plea in law must be rejected.
Sixth plea in law, alleging infringement of the principle of proportionality
190The applicant submits that the adoption of the restrictive measures affecting it constitutes an unjustified interference with its right to property and its freedom to pursue an economic activity and, therefore, infringes the principle of proportionality.
191First of all, according to the case-law, the infringement of its procedural rights as alleged in the third plea in law entails an infringement of its right to property and the principle of proportionality.
192Next, since the applicant is not involved in nuclear proliferation, the restrictive measures affecting it are not consistent with the general aim pursued by the contested acts, namely the campaign against nuclear proliferation.
193Lastly, the measures at issue cause particularly serious harm to the applicant and its employees in disproportion to the aim pursued by the Council. The applicant also states, in this context, that in contrast to the Council’s claims, quite apart from funds held in the European Union, the restrictive measures at issue also affect funds held in Iran, in that they prevent all transfers of funds from Iran to the European Union and deter Iranian operators from entering into contracts with it.
194As a preliminary point, it should be noted that, as is apparent from paragraphs 121 to 169 above, the contested acts are not vitiated by an infringement of the applicant’s procedural rights justifying their annulment. Therefore, the argument put forward by the applicant that the infringement of its procedural rights entails an infringement of the right to property and the principle of proportionality cannot succeed.
195As regards the other complaints, it has already been noted in paragraph 90 above that by virtue of the principle of proportionality, which is one of the general principles of EU law, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures should be appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment in Bank Melli Iran v Council, cited in paragraph 53 above, EU:T:2013:397, paragraph 179 and the case-law cited).
196First, as is apparent from paragraphs 59 to 93 above, the adoption of restrictive measures against entities providing financial support to the Iranian Government seeks to deprive the latter of its sources of revenue, in order to oblige it to end the development of its nuclear proliferation programme as a result of insufficient financial resources. Thus, the restrictive measures affecting the applicant are not consistent with the aim pursued by the Council, notwithstanding the fact that the applicant is not involved itself in nuclear proliferation.
197Second, so far as concerns the harm caused to the applicant, it is true that its right to property and its freedom to carry on an economic activity are considerably curtailed by the restrictive measures at issue, since it cannot, in particular, dispose of its funds situated within the territory of the European Union or held by Iranian nationals, or transfer its funds to the European Union, except pursuant to special authorisation. Similarly, the restrictive measures affecting the applicant may result in its trading partners feeling a degree of mistrust towards it.
198However, the case-law makes it clear that the fundamental rights relied on by the applicant, namely the right to property and the right to carry on an economic activity, are not absolute rights and that their exercise may be subject to restrictions justified by objectives of public interest pursued by the European Union. Thus, any restrictive economic or financial measure entails, ex hypothesi, consequences affecting the right to property and the right to the free exercise of economic activities, so causing harm to parties who have not been found to be responsible for the situation giving rise to the measures in question. The importance of the aims pursued by the legislation at issue is such as to justify negative consequences, even of a substantial nature, for some operators (see, to that effect, judgment in Melli Bank v Council, paragraph 75 above, EU:T:2009:266, paragraph 111 and the case-law cited).
199In the present case, given the prime importance of the preservation of international peace and security, the difficulties caused are not disproportionate to the ends sought. This is especially the case because, first of all, the freezing of funds concerns only part of the applicant’s assets. Second, Decision 2010/413 and Implementing Regulation No 267/2012 provide for certain exceptions allowing the entities affected by fund-freezing measures to meet essential expenditure, among others. Lastly, it should be noted that the Council does not claim that the applicant is involved itself in nuclear proliferation. Hence, since it is not personally associated with behaviour posing a risk to international peace and security, the degree of mistrust towards it is therefore lower.
200Accordingly, the sixth plea in law must be rejected and, in consequence, the action must be dismissed in its entirety.
Costs
201Under 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.
Operative part
On those grounds,THE GENERAL COURT (First Chamber)hereby:
1.Dismisses the action;
2.Orders Bank of Industry and Mine to pay the costs.
Delivered in open court in Luxembourg on 29 April 2015.
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