Contents
Judgment of the General Court (First Chamber)2 July 2019note(Non-contractual liability — Common foreign and security policy — Restrictive measures against the Islamic Republic of Iran — Freezing of funds — Compensation for the damage allegedly suffered following the inclusion and retention of the applicant’s name on lists of persons and entities subject to restrictive measures — Material damage — Non-material damage)In Case T‑405/15,Fulmen, established in Tehran (Iran), represented by A. Bahrami and N. Korogiannakis, lawyers,vCouncil of the European Union, represented by R. Liudvinaviciute-Cordeiro and M. Bishop, acting as Agents,supported byEuropean Commission, represented initially by A. Aresu and D. Gauci, and subsequently by A. Aresu and R. Tricot, acting as Agents,THE GENERAL COURT (First Chamber),composed of I. Pelikánová (Rapporteur), President, V. Valančius and U. Öberg, Judges,Registrar: M. Marescaux, Administrator,having regard to the written part of the procedure and further to the hearing on 11 December 2018,gives the following
Judgment
I.Background to the dispute
1The present 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’).
2The applicant, Fulmen, is an Iranian company, active in particular in the electrical equipment sector.
3The European Union adopted Council Common Position 2007/140/CFSP of 27 February 2007 concerning restrictive measures against Iran (OJ 2007 L 61, p. 49) and Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1).
4Article 5(1)(b) of Common Position 2007/140 provided for the freezing of all funds and economic resources which belong to certain categories of persons and entities. The list of those persons and entities was contained in Annex II to Common Position 2007/140.
5As regards the powers of the European Community, Article 7(2) of Regulation No 423/2007 provided for the freezing of the funds of the persons, entities or bodies identified by the Council of the European Union as being engaged in nuclear proliferation in accordance with Article 5(1)(b) of Common Position 2007/140. The list of those persons, entities and bodies constituted Annex V to Regulation No 423/2007.
6Common Position 2007/140 was repealed by Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran (OJ 2010 L 195, p. 39).
7Article 20(1) of Decision 2010/413 provides for the freezing of the funds of several categories of entities. That provision concerns, in particular, ‘persons and entities … that are engaged in, directly associated with, or providing support for [nuclear proliferation], or persons or entities acting on their behalf or at their direction, or entities owned or controlled by them, including through illicit means … as listed in Annex II’.
8The list in Annex II to Decision 2010/413 was replaced by a new list, adopted in Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L 281, p. 81).
9On 25 October 2010, the Council adopted Regulation (EU) No 961/2010 on restrictive measures against Iran and repealing Regulation No 423/2007 (OJ 2010 L 281, p. 1).
10From the adoption of Decision 2010/413 on 26 July 2010, the applicant was placed, by the Council, on the list of persons, entities and bodies in Table I of Annex II to that decision.
11Consequently, the applicant’s name was placed on the list of persons, entities and bodies in Table I of Annex V to Regulation No 423/2007 by Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation No 423/2007 (OJ 2010 L 195, p. 25). The consequence of the adoption of Implementing Regulation No 668/2010 was the freezing of the applicant’s funds and economic resources.
12In Decision 2010/413 the Council adopted the following reasons in relation to the applicant: ‘Fulmen was involved in the installation of electrical equipment on the Qom/Fordoo [Iran] site before its existence had been revealed’. In Implementing Regulation No 668/2010, the following wording was used: ‘Fulmen was involved in the installation of electrical equipment on the Qom/Fordoo site at a time when the existence of the site had not yet been revealed’.
13The Council informed the applicant by letter of 28 July 2010 of the listing of its name in Annex II to Decision 2010/413 and in Annex V to Regulation No 423/2007.
14By letter of 14 September 2010, the applicant asked the Council to reconsider its listing in Annex II to Decision 2010/413 and Annex V to Regulation No 423/2007. It also asked the Council to notify it of the evidence on the basis of which the restrictive measures imposed on it had been adopted.
15The listing of applicant’s name in Annex II to Decision 2010/413 was not affected by the adoption of Decision 2010/644.
16Since Regulation No 423/2007 was repealed by Regulation No 961/2010, the applicant’s name was placed by the Council in Table B, No 13, of Annex VIII to the latter regulation. Consequently, the applicant’s funds have since been frozen pursuant to Article 16(2) of Regulation No 961/2010.
17By letter of 28 October 2010, the Council responded to the applicant’s letter of 14 September 2010 stating that, after reconsideration, it rejected its request to have its name removed from the list in Annex II to Decision 2010/413, as amended by Decision 2010/644, and the list in Annex VIII to Regulation No 961/2010, which had replaced Annex V to Regulation No 423/2007. It stated in that regard that, as the file did not contain any new factors which justified a change in its position, the applicant was to remain subject to the restrictive measures laid down in those acts. The Council further stated that its decision to maintain the applicant’s name on the contested lists was not based on any factors other than those referred to in the reasons stated for those lists.
18By judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), the General Court annulled Decision 2010/413, Implementing Regulation No 668/2010, Decision 2010/644 and Regulation No 961/2010 in so far as they concerned Fereydoun Mahmoudian and the applicant.
19As regards the temporal effects of the annulment of the contested measures in the context of the action giving rise to the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), in paragraph 106 of the judgment, the Court recalled, in respect of Regulation No 961/2010, that, under the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void were to take effect only as from the date of expiry of the period for bringing an appeal referred to in the first paragraph of Article 56 of that Statute or, if an appeal has been brought within that period, as from the date of dismissal of the appeal. In the present case, it held that the risk of serious and irreparable harm to the effectiveness of the restrictive measures imposed by Regulation No 961/2010 did not appear sufficiently great, having regard to the considerable impact of those measures on the applicants’ rights and freedoms, to warrant the maintenance of the effects of that regulation with respect to the applicants for a period exceeding that laid down in the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union.
20Moreover, in paragraph 107 of the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), the Court maintained the effects of Decision 2010/413, as amended by Decision 2010/644, until the annulment of Regulation No 961/2010 took effect.
21On 4 June 2012, the Council brought an appeal before the Court of Justice against the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142). That appeal was registered as Case C‑280/12 P. In support of that appeal, the Council claimed inter alia that the General Court had erred in law in holding that the Council was required to adduce evidence to prove that the applicant was active on the Qom/Fordoo (Iran) site notwithstanding the fact that the evidence that could be put forward came from confidential sources and that the General Court’s errors of law concerned two aspects of the communication of that evidence, the first relating to the communication of evidence by the Member States to the Council, and the second to the communication of confidential material to the Court.
22By judgment of 28 November 2013, Council v Fulmen and Mahmoudian (C‑280/12 P, EU:C:2013:775), the Court of Justice dismissed the appeal as unfounded, confirming what the General Court had found in paragraph 103 of the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), namely that the Council had not adduced evidence that the applicant was active on the Qom/Fordoo site.
23By Council Implementing Regulation (EU) No 1361/2013 of 18 December 2013 implementing Regulation No 267/2012 (OJ 2013 L 343, p. 7), the Council, drawing conclusions from the judgment of 28 November 2013, Council v Fulmen and Mahmoudian (C‑280/12 P, EU:C:2013:775), removed the applicant’s name from the lists of persons and entities subject to restrictive measures in Annex II to Decision 2010/413 and Annex IX to Regulation No 267/2012, with effect from 19 December 2013. Since then, the applicant’s name has not been re-listed.
II.Procedure and forms of order sought
24By application lodged at the Registry of the General Court on 25 July 2015, the applicant brought the present action. The case was assigned to the First Chamber of the General Court.
25On 9 November 2015, the Council lodged its defence.
26By document lodged at the Registry of the General Court on 9 November 2015, the European Commission sought leave to intervene in the proceedings in support of the form of order sought by the Council.
27On 2 December 2015, the applicant lodged its observations on the Commission’s application to intervene. The Council did not submit observations on that application within the period prescribed.
28By decision of the President of the First Chamber of the General Court of 10 December 2015, adopted in accordance with Article 144(4) of the Rules of Procedure of the General Court, the Commission was granted leave to intervene in the present dispute.
29On 22 January 2016, the Commission lodged its statement in intervention. Neither the Council, nor the applicant submitted observations on that statement in intervention.
30On 25 January 2016, the applicant lodged its reply.
31On 8 March 2016, the Council lodged its rejoinder.
32By letter lodged at the Registry of the General Court on 29 March 2016, the applicant requested that a hearing be held, in accordance with Article 106(1) of the Rules of Procedure.
33Acting on a proposal from the Judge-Rapporteur, the General Court (First Chamber) adopted a first measure of organisation of procedure to hear the parties on the possibility of staying proceedings pending the final decision of the Court of Justice in Case C‑45/15 P, Safa Nicu Sepahan v Council. The Council submitted its observations in that regard within the period prescribed.
34Following a change in the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the First Chamber, to which this case was consequently allocated.
35By decision of 31 August 2016, the President of the First Chamber of the General Court decided to stay the proceedings in the present case.
36Following delivery of the judgment of 30 May 2017, Safa Nicu Sepahan v Council (C‑45/15 P, EU:C:2017:402), on a proposal from the Judge-Rapporteur, the General Court (First Chamber) adopted a second measure of organisation of procedure to hear the parties on the consequences for the present case that they drew from that judgment (‘the second measure of organisation of procedure’). The main parties submitted their observations in that regard within the period prescribed.
37On a proposal from the Judge-Rapporteur, the General Court (First Chamber) adopted a third measure of organisation of procedure to put a number of questions to the applicant (‘the third measure of organisation of procedure’). The applicant replied within the period prescribed.
38By letter of 28 November 2018, the Commission informed the Court that, whilst it continued to support the Council’s position, it did not consider it necessary to participate in the hearing in the present case.
39The main parties presented oral argument and replied to the questions put by the Court at the hearing on 11 December 2018.
40The applicant claims that the Court should:– declare the application admissible and well founded;– order the Council to pay it EUR 11009560 as compensation for the material damage it has suffered and EUR 100000 as compensation for the non-material damage it has suffered;– order the Council to pay the costs.
41The Council and the Commission contend that the Court should:– dismiss the action;– order the applicant to pay the costs.
III.Law
A.The jurisdiction of the General Court
42In the rejoinder, on the basis of the judgment of 18 February 2016, Jannatian v Council (T‑328/14, not published, EU:T:2016:86), the Council objects that, in so far as the applicant based its claim for compensation on the unlawfulness of its inclusion in the list in Annex II to Decision 2010/413, as amended by Decision 2010/644, the Court has no jurisdiction to rule on the present action, since the second paragraph of Article 275 TFEU does not give the Court any jurisdiction to rule on a claim for compensation based on the unlawfulness of an act relating to the common foreign and security policy (CFSP).
43In reply to a question put by the Court at the hearing, requesting that it submit its observations on the Council’s plea of inadmissibility, the applicant stated that, by the present action, it sought to claim compensation for the damage caused only by the regulations adopted by the Council, which was noted in the minutes of the hearing. In the light of that reply, it must be considered that, in essence, the applicant has modified the second head of claim in the application and therefore, ultimately, it is requesting solely that the Court order the Council to pay it EUR 11009560 as compensation for the material damage it has suffered as a result of the unlawful inclusion of its name in the lists annexed to Implementing Regulation No 668/2010 and Regulation No 961/2010 (‘the lists at issue’) and EUR 100000 as compensation for the non-material damage it has suffered as a result of that listing.
44In any event, it should be borne in mind that, under Article 129 of the Rules of Procedure, the Court may at any time, of its own motion, after hearing the parties, rule on whether there exists any absolute bar to proceeding with a case, which, according to case-law, includes the jurisdiction of the Courts of the European Union to hear the action (see, to that effect, judgments of 18 March 1980, Ferriera Valsabbia and Others v Commission, 154/78, 205/78, 206/78, 226/78 to 228/78, 263/78, 264/78, 31/79, 39/79, 83/79 and 85/79, EU:C:1980:81, paragraph 7, and of 17 June 1998, Svenska Journalistförbundet v Council, T‑174/95, EU:T:1998:127, paragraph 80).
45On that basis, it follows from the case-law that although a claim seeking compensation for the damage allegedly suffered as a result of the adoption of an act relating to the CFSP falls outside the jurisdiction of the Court (judgment of 18 February 2016, Jannatian v Council, T‑328/14, not published, EU:T:2016:86, paragraphs 30 and 31), by contrast, the Court has always held that it has jurisdiction to hear a claim for damages allegedly suffered by a person or entity, as a result of restrictive measures against it, in accordance with Article 215 TFEU (see, to that effect, judgments of 11 July 2007, Sison v Council, T‑47/03, not published, EU:T:2007:207, paragraphs 232 to 251, and of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraphs 45 to 149).
46The same holds true in the case of a claim for compensation for damages allegedly suffered by a person or entity as a result of restrictive measures against it, in accordance with Article 291(2) TFEU.
47According to the case-law, there is no provision in the FEU Treaty which provides that Part Six thereof, relating to the institutional and financial arrangements, would not be applicable to the restrictive measures. Relying on Article 291(2) TFEU, which provides that ‘where 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 of the Treaty on European Union, on the Council’ is thus not precluded, provided that the conditions in that provision are met (judgment of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraph 35).
48In the present case, the restrictive measures taken against the applicant, by Decision 2010/413, subsequently amended by Decision 2010/644, were implemented by Implementing Regulation No 668/2010, adopted in accordance with Article 291(2) TFEU, and by Regulation No 961/2010, adopted in accordance with Article 215 TFEU.
49It follows that, even if the Court does not have jurisdiction to hear the applicant’s claim for compensation, in so far as the applicant seeks compensation for the damage that it allegedly suffered as a result of the adoption of Decision 2010/413, subsequently amended by Decision 2010/644, it does have jurisdiction to hear that claim, in so far as the applicant seeks compensation for the damage that it allegedly suffered as a result of the implementation of that decision by Implementing Regulation No 668/2010 and by Regulation No 961/2010 (‘the acts at issue’).
50Consequently, it must be concluded that the Court has jurisdiction to examine the present action as modified at the hearing, thus in so far as it seeks compensation for the damage that the applicant alleges to have suffered as a result of the fact that the restrictive measures taken against it in Decision 2010/413, subsequently amended by Decision 2010/644, were implemented by the acts at issue (‘the measures at issue’).
B.Substance
51Under the second paragraph of Article 340 TFEU, ‘in the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties’. In accordance with settled case-law, in order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU for unlawful conduct of the institutions, a number of conditions must be satisfied: the institutions’ conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded (see judgments of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 106 and the case-law cited, and of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 47).
52In support of the present action, the applicant argues that the three conditions referred to above are satisfied in the present case.
53The Council, supported by the Commission, contends that the present action should be dismissed as unfounded on the grounds that it is for the applicant to adduce evidence that all the conditions necessary for the European Union to incur non-contractual liability are satisfied in the present case, and that it has failed to do so.
54According to settled case-law, the conditions necessary for the European Union to incur non-contractual liability within the meaning of the second paragraph of Article 340 TFEU, as already listed in paragraph 51 above, are cumulative (judgment of 7 December 2010, Fahas v Council, T‑49/07, EU:T:2010:499, paragraphs 92 and 93, and order of 17 February 2012, Dagher v Council, T‑218/11, not published, EU:T:2012:82, paragraph 34). It follows that, where one of the conditions is not satisfied, the application must be dismissed in its entirety without it being necessary to examine the other preconditions (judgment of 26 October 2011, Dufour v ECB, T‑436/09, EU:T:2011:634, paragraph 193).
55It is therefore necessary to ascertain, in the present case, whether the applicant has discharged the burden of proving the unlawfulness of the conduct that it alleges against the Council, namely the adoption of the acts at issue and maintaining its name on the lists at issue, that it has actually suffered the material and non-material damage that it claims and the causal link between that adoption and the damage that it alleges.
1.The alleged unlawfulness
56The applicant submits that the condition relating to the unlawful conduct on the part of an institution is satisfied since, in essence, the adoption of the acts at issue and maintaining its name on the lists at issue amount to a sufficiently serious breach, on the part of the Council, of rules of law intended to confer rights on individuals for the European Union to incur non-contractual liability in accordance with the case-law.
57In that regard, first, the applicant notes that it is clear from the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), and the judgment of 28 November 2013, Council v Fulmen and Mahmoudian (C‑280/12 P, EU:C:2013:775), on an appeal brought by the Council and dismissing that appeal (see paragraph 22 above), that the acts at issue are unlawful.
58On the one hand, it recalls that, in the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), the Court held that the Council did not have the slightest evidence against it to substantiate the inclusion of its name in the lists at issue and considers that that fact constitutes a sufficiently serious breach of a rule of law that is intended to confer rights on individuals capable of giving rise to non-contractual liability on the part of the European Union. In reply to the question put to it in the context of the second measure of organisation of procedure, it states that, given that the facts giving rise to the present case and those which gave rise to the judgment of 30 May 2017, Safa Nicu Sepahan v Council (C‑45/15 P, EU:C:2017:402), are similar, all of the findings regarding the gravity of the unlawfulness of the Council’s conduct in that case are transposable mutatis mutandis to the present case. It adds that the Court should conclude that the annulment of the acts at issue alone is not capable of constituting sufficient compensation for the non-material damage it has suffered.
59On the other, the applicant considers that the Council’s decision, notwithstanding the blatant nature of the unlawfulness found by the Court in the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), to bring appeal proceedings against that judgment, constitutes a misuse of powers which has resulted in the damage it has suffered being exacerbated.
60Secondly, the applicant submits that the measures at issue resulted in its freedom to conduct a business and its right to property, which it enjoys under Articles 16 and 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’), being infringed. It states that that infringement of those fundamental rights makes the unlawful act committed by the Council worse, to the point of constituting a clear infringement.
61In its reply to the question put to it in the context of the second measure of organisation of procedure, the Council, supported by the Commission, no longer disputes the unlawfulness deriving from the adoption of the measures at issue and acknowledges that the conclusions drawn by the Court of Justice in the judgment of 30 May 2017, Safa Nicu Sepahan v Council (C‑45/15 P, EU:C:2017:402), relating to the existence of a sufficiently serious breach of a rule of law that is intended to confer rights on individuals are relevant in the present case, since the applicant was listed in circumstances similar to those in the case which gave rise to that judgment. However, it denies the applicant’s allegations regarding a misuse of powers and an infringement of Articles 16 and 17 of the Charter and considers that the judgment of 30 May 2017, Safa Nicu Sepahan v Council (C‑45/15 P, EU:C:2017:402), offers no guidance of any relevance in that regard.
62In the present case, in the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), the General Court found that the acts at issue were unlawful.
63Nevertheless, it should be borne in mind that, according to well-established case-law of the General Court, the finding that a legal act is unlawful is not sufficient, however regrettable that unlawfulness may be, for a finding that the condition for the non-contractual liability of the European Union relating to the unlawfulness of the conduct of the institutions complained of is satisfied (judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 50; see also, to that effect, judgments of 6 March 2003, Dole Fresh Fruit International v Council and Commission, T‑56/00, EU:T:2003:58, paragraphs 71 to 75, and of 23 November 2011, Sison v Council, T‑341/07, EU:T:2011:687, paragraph 31). The fact that one or more of the acts of the Council giving rise to the losses claimed by the applicant may have been annulled, even by a judgment of the General Court delivered before the action for damages had been brought, is not, therefore, irrefutable evidence of a sufficiently serious breach on the part of that institution, giving rise ipso jure to non-contractual liability on the part of the European Union.
64The condition underlying the existence of unlawful conduct by EU institutions requires a sufficiently serious breach of a rule of law that is intended to confer rights on individuals (see judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 29 and the case-law cited).
65The requirement of a sufficiently serious breach of a rule of law that is intended to confer rights on individuals is intended, whatever the nature of the unlawful act at issue, to avoid the risk of having to bear the losses claimed by the persons concerned obstructing the ability of the institution concerned to exercise to the full its powers in the general interest, whether that be in its legislative activity or in that involving choices of economic policy or in the sphere of its administrative competence, without however thereby leaving individuals to bear the consequences of flagrant and inexcusable misconduct (see judgments of 23 November 2011, Sison v Council, T‑341/07, EU:T:2011:687, paragraph 34 and the case-law cited, and of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 51).
66In the light of the case-law recalled in paragraphs 63 to 65 above, it is necessary to examine whether the rules of law which are alleged by the applicant, in the present case, to have been infringed are intended to confer rights on individuals and whether the Council has committed a sufficiently serious breach of those rules.
67In support of its claim for compensation, the applicant relies, in essence, on two heads of unlawfulness, namely, first, the adoption of the acts at issue and maintaining its name on the lists at issue although the Council had no evidence to substantiate that conduct, and states that the effects of the unlawfulness were made worse by a misuse of power by the Council in so far as it brought an appeal against the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142) and, secondly, an infringement of Articles 16 and 17 of the Charter.
68First, as regards the plea of unlawfulness resulting from the adoption of the acts at issue and the Council maintaining its name on the lists at issue although it had no evidence to substantiate that conduct, it should be recalled that, in paragraphs 68 and 69 of the judgment of 25 November 2014, Safa Nicu Sepahan v Council (T‑384/11, EU:T:2014:986), the Court held that an administrative authority, exercising ordinary care and diligence, would have realised, at the time the act at issue in that case was adopted, that the onus was upon it to gather the information or evidence substantiating the restrictive measures concerning the applicant in that case in order to be able to establish, in the event of a challenge, that those measures were well founded by producing that information or evidence before the EU judicature. It concluded that, since it did not act in that way, the Council had incurred liability for a sufficiently serious breach of a rule of law intended to confer rights on individuals within the meaning of the case-law cited in paragraphs 63 and 64 above. In paragraph 40 of the judgment of 30 May 2017, Safa Nicu Sepahan v Council (C‑45/15 P, EU:C:2017:402), delivered in appeal proceedings against the judgment of 25 November 2014, Safa Nicu Sepahan v Council (T‑384/11, EU:T:2014:986), and dismissing those appeals, the Court of Justice held that the General Court was fully entitled to find, notably in paragraphs 68 and 69 of its judgment, that the breach, over a period of almost three years, of the obligation on the Council to provide, in the event of a challenge, information or evidence substantiating the reasons for the adoption of restrictive measures against a natural or legal person constituted a sufficiently serious breach of a rule of law intended to confer rights on individuals.
69In the present case, as is clear from the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), as confirmed by the judgment of 28 November 2013, Council v Fulmen and Mahmoudian (C‑280/12 P, EU:C:2013:775), the fact remains that the infringement committed by the Council is not only identical in its subject matter but also lasted for around six months longer than the infringement committed by the Council in the case giving rise to the judgment of 25 November 2014, Safa Nicu Sepahan v Council (T‑384/11, EU:T:2014:986).
70It follows, first, that the rule of law alleged to have been infringed in the present case is a rule of law that confers rights on individuals, including the applicant, as a legal person concerned by the acts at issue. Secondly, the breach of that rule is sufficiently serious, within the meaning of the case-law recalled in paragraph 64 above.
71Moreover, it is clear from the observations made by the parties, following the second measure of organisation of procedure, regarding the consequences that they drew from the judgment of 30 May 2017, Safa Nicu Sepahan v Council (C‑45/15 P, EU:C:2017:402), for the present case, that they agree, currently, that the unlawfulness invoked constitutes a sufficiently serious breach of a rule of law conferring rights on individuals.
72With regard to the allegation that, in essence, that latter infringement is even more serious since it was exacerbated by the fact that the Council misused its powers by bringing an appeal against the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), that argument cannot succeed.
73It is settled case-law that a measure is vitiated by misuse of powers only if it appears on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or of evading a procedure specifically prescribed in the Treaty for dealing with the circumstances of the case (see judgment of 29 November 2017, Montel v Parliament, T‑634/16, not published, EU:T:2017:848, paragraph 161 and the case-law cited).
74In that regard, first, it should be recalled that the right to bring an appeal against judgments of the General Court is enshrined in the second subparagraph of Article 256(1) TFEU and is an integral part of the legal remedies available in the EU judicial system. Under that same article, an appeal before the Court of Justice is limited to points of law. Moreover, under the first sentence of the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union, an appeal may be brought by any party that has been unsuccessful, in whole or in part, in its submissions. It is clear from the provisions of primary EU law that, subject to the limits laid down therein, any party is free not only to bring an appeal against a judgment of the General Court, but, in addition, to raise any ground of appeal that it considers useful in order to set out its case and for it to succeed. Accordingly, to that end, contrary to the applicant’s claims, the Council cannot be criticised for having brought an appeal against the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), in order to have, as it states in its defence, ‘settled case-law concerning geographic restrictive measures’, since that argument clearly relates to a point of law, within the meaning of the second subparagraph of Article 256(1) TFEU.
75Secondly, the applicant’s claim that the Council brought an appeal against the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), solely in order to apply pressure on the Islamic Republic of Iran to cease its nuclear programme, thus maintaining the effects of the acts at issue against the applicant, cannot succeed. That claim is not only not substantiated by any evidence or information but, in any event, the fact remains that the maintenance of those effects is an inherent part of the decision to bring appeal proceedings and to bring them under the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union. Accordingly, under that article, ‘by way of derogation from Article 280 [TFEU], decisions of the General Court declaring a regulation to be void shall take effect only as from the date of expiry of the period referred to in the first paragraph of Article 56 of this Statute or, if an appeal shall have been brought within that period, as from the date of dismissal of the appeal’.
76Moreover, it should be recalled (see paragraph 19 above) that, as regards the temporal effects of the annulment of Regulation No 961/2010, in paragraph 106 of the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), the Court held that, in the present case, the risk of serious and irreparable harm to the effectiveness of the restrictive measures imposed by Regulation No 961/2010 did not appear sufficiently great to warrant the maintenance of the effects of that regulation with respect to the applicants for a period exceeding that laid down in the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union. Furthermore, in paragraph 107 of that judgment (see paragraph 20 above), it decided to maintain the effects of Decision 2010/413, as amended by Decision 2010/644, until the annulment of Regulation No 961/2010 took effect.
77It is clear from the foregoing considerations that maintaining the effects of the acts at issue against the applicant, following the annulment of those acts by the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), derives from the application of provisions of the Statute of the Court of Justice of the European Union and the General Court’s assessment which is not subject to appeal, and not the Council’s conduct as alleged by the applicant, in so far as it brought an appeal against that judgment.
78Consequently, in the absence of any objective evidence, adduced by the applicant, capable of demonstrating that the Council brought the appeal against the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), with the aim of causing it injury or applying pressure on the Islamic Republic of Iran to cease its nuclear programme, the argument alleging a misuse of powers by the Council which exacerbated the breach of the rule of law at issue in the present case must be rejected as unfounded.
79As regards the second plea of unlawfulness, alleging an infringement of Articles 16 and 17 of the Charter, it must be noted that the applicant merely recalls the requirements in order to constitute an infringement of the exercise of the rights and freedoms recognised by the Charter and submits that the measures at issue that were imposed against it had as their object and effect considerable restrictions on its right to property and its freedom to pursue an economic activity, as recognised by Articles 16 and 17 of the Charter.
80Although, according to settled case-law, the right to property is guaranteed by Article 17 of the Charter, it does not enjoy, under EU law, absolute protection, but must be viewed in relation to its function in society. Consequently, the exercise of that right may be restricted, provided that those restrictions correspond to objectives of public interest pursued by the European Union and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the right thus guaranteed (see judgment of 13 September 2013, Makhlouf v Council, T‑383/11, EU:T:2013:431, paragraph 97 and the case-law cited). That case-law may be transposed, by analogy, to the freedom to conduct a business, which is guaranteed by Article 16 of the Charter.
81In the present case, first, it should be pointed that the adoption of the acts at issue against the applicant, in so far as they provided for the freezing of its funds, its financial assets and its other economic resources, pursued the objective of preventing nuclear proliferation and therefore putting pressure on the Islamic Republic of Iran to end the activities concerned. That objective formed part of the more general framework of the efforts relating to maintaining peace and international security and, consequently, was legitimate and appropriate (see, to that effect and by analogy, judgment of 13 September 2013, Makhlouf v Council, T‑383/11, EU:T:2013:431, paragraphs 100 and 101 and the case-law cited).
82Secondly, the measures at issue were also necessary since alternative and less restrictive measures, such as a system of prior authorisation or an obligation to justify, a posteriori, how the funds transferred were used, were not as effective in achieving the goal pursued, namely preventing nuclear proliferation and therefore putting pressure on the Islamic Republic of Iran to end the activities concerned, particularly given the possibility of circumventing the restrictions imposed (see, by analogy, judgment of 13 September 2013, Makhlouf v Council, T‑383/11, EU:T:2013:431, paragraph 101 and the case-law cited).
83Therefore, the applicant has not demonstrated that the acts at issue infringed its rights under Articles 16 and 17 of the Charter.
84In the light of all the foregoing considerations, it must be concluded that only the first head of unlawfulness, resulting from the adoption of the acts at issue and the Council maintaining its name on the lists at issue, although it had no evidence to substantiate that conduct, constitutes unlawful conduct that may give rise to liability on the part of the European Union, in accordance with the case-law recalled in paragraph 64 above.
2.The alleged damage and the existence of a causal link between the unlawfulness of the conduct complained of and that damage
85The applicant considers that it has proved that it suffered actual and certain material and non-material damage as a result of the acts at issue and the causal link between the unlawfulness of the conduct complained of and the alleged damage. In view of the particular circumstances of the case, it considers that the judgment of 30 May 2017, Safa Nicu Sepahan v Council (C‑45/15 P, EU:C:2017:402), does not call into question the merits of its claim for compensation.
86In the reply, it claims that the Council is trying, contrary to Article 340 TFEU, to impose conditions capable of making it, in practice, impossible or excessively difficult for individuals to exercise the right to compensation.
87In response to the Council’s argument alleging the lack of a causal link, with regard to the restrictive measures adopted against it, in 2011, in the United States (‘the United States measures’), the applicant notes that the United States measures were taken one and a half years after the acts at issue and that they refer to those acts as ‘evidence’. Therefore, since those measures derive from those acts, they could not have caused it separate damage and therefore any damage caused results directly from the Council’s unlawful conduct and it is for the Council to make good that damage. Secondly, the applicant notes that relations between the Islamic Republic of Iran and the United States had been severed since 1980 and that, since 1995, the United States has prohibited all activities and all transactions with Iranian companies. Therefore, since it has not maintained relationships with companies established in the United States and has not held assets there, the United States measures did not cause it any damage.
88The Council, supported by the Commission, contests the arguments put forward by the applicant. It considers that the conclusions drawn by the Court of Justice in the judgment of 30 May 2017, Safa Nicu Sepahan v Council (C‑45/15 P, EU:C:2017:402), concerning the conditions governing compensation for material and non-material damage are relevant and support its arguments in the present case. Moreover, with regard to the material and non-material damage that the applicant has allegedly sustained in Iran, the Council notes that, during the period in which the measures at issue applied, the applicant was also subject to United States measures which could have had just as negative an effect, or even a more negative effect, and which are still in force. In the rejoinder, it submits that the United States measures had a real impact on the applicant’s economic activity.
89It must be examined whether the applicant has adduced evidence of the alleged damage and of the causal link between the unlawfulness of the conduct complained of and that damage.
90As regards the condition of actual damage, according to the case-law, the European Union can incur non-contractual liability only if an applicant has actually suffered real and certain damage (see to that effect, judgments of 27 January 1982, De Franceschi v Council and Commission, 51/81, EU:C:1982:20, paragraph 9, and of 16 January 1996, Candiotte v Council, T‑108/94, EU:T:1996:5, paragraph 54). It is for the applicant to prove that this condition has been fulfilled (see judgment of 9 November 2006, Agraz and Others v Commission, C‑243/05 P, EU:C:2006:708, paragraph 27 and the case-law cited), and, in particular, to adduce conclusive proof of both the existence and extent of the damage (see judgment of 16 September 1997, Blackspur DIY and Others v Council and Commission, C‑362/95 P, EU:C:1997:401, paragraph 31 and the case-law cited).
91More specifically, any claim for compensation for damage, whether the damage is material or non-material, and whether the indemnity is symbolic or substantial, must give particulars of the nature of the damage alleged in connection with the conduct at issue and must quantify the whole of that damage, even if approximately (see judgment of 26 February 2015, Sabbagh v Council, T‑652/11, not published, EU:T:2015:112, paragraph 65 and the case-law cited).
92As regards the condition that there be a causal link between the alleged conduct and the damage, that damage must be a sufficiently direct consequence of the alleged conduct, which must be the determining cause of the damage, although there is no obligation to make good every harmful consequence, even a remote one, of an unlawful situation (see judgment of 10 May 2006, Galileo International Technology and Others v Commission, T‑279/03, EU:T:2006:121, paragraph 130 and the case-law cited; see also, in that regard, judgment of 4 October 1979, Dumortier and Others v Council, 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79, EU:C:1979:223, paragraph 21). It is for the applicant to adduce proof of the existence of a causal link between the alleged conduct and the damage (see judgment of 30 September 1998, Coldiretti and Others v Council and Commission, T‑149/96, EU:T:1998:228, paragraph 101 and the case-law cited).
93In the light of the case-law recalled above, it is necessary to examine whether, in the present case, the applicant has proved that it suffered actual and certain material and non-material damage following the adoption of the acts at issue and its name being maintained on the lists at issue and the existence of a causal link between that adoption and that damage.
(a)The material damage alleged and the existence of a causal link
94Relying on a report, dated 21 July 2015 and prepared by an accountancy firm listed on the register of chartered accountants in the region of Paris Île-de-France (France) and attached in Annex A.2 to the application (‘the accountant’s report’), the applicant claims to have sustained, following the adoption of the acts at issue, two types of material damage in Iran and two types of material damage in Europe. In respect of that damage, it requests that the Council be ordered to pay it damages totalling EUR 11009560.
95In response to a question raised in the context of the third measure of organisation of procedure, concerning the discrepancy between the total amount of the material damage set out in the form of order sought in the application, namely EUR 11009560, and the sum of the amounts relating to the various types of material damage alleged as referred to in the grounds of the application, the applicant states that that discrepancy derives from an obvious clerical error on its part which must be taken into account by the General Court. Where it set out the amount of each type of financial and operational damage sustained in Iran under the headings E.1.1.2, E.1.1.3 and E.1.1.4 in the application, it states that it forgot to do so in respect of the financial and operational damage sustained in Iran set out under heading E.1.1.1. Moreover, it states that the amount of the latter instance of material damage, resulting from the ‘fall in net income’, that it estimates to be EUR 2932367, is included in the total amount of the material damage, which it confirms as ‘EUR 11009560, as set out in both the operative part of the application and in Annex A.2, page 35, to the application’.
96It should be noted that, in order to demonstrate the existence of damage and of a causal link, the applicant relies substantially on the accountant’s report. This is manifestly evident from a combined reading of paragraphs 60 to 101 of the application, which are under heading E entitled ‘The material damage and the existence of a causal link’, and pages 8 to 27 of that report. Those paragraphs of the application reproduce verbatim entire passages contained in those pages of the accountant’s report. At most, the applicant has sometimes endeavoured to summarise certain parts of that report by merely omitting passages from it.
97In those circumstances and since a large part of the applicant’s claims regarding the material damage upon which it relies is based on assessments contained in the accountant’s report, before examining the material damage that the applicant has allegedly sustained in Iran and in Europe and the existence of a causal link, it is first necessary to examine the probative value of the accountant’s report.
(1)The examination of the probative value of the accountant’s report
98Given that there is no legislation at EU level governing the concept of proof, the Courts of the European Union have laid down a principle of unfettered production of evidence or freedom as to the form of evidence adduced, which is to be interpreted as the right to rely, in order to prove a particular fact, on any form of evidence, such as oral testimony, documentary evidence, confessions, and so on (see, to that effect, judgments of 23 March 2000, Met-Trans and Sagpol, C‑310/98 and C‑406/98, EU:C:2000:154, paragraph 29; of 8 July 2004, Dalmine v Commission, T‑50/00, EU:T:2004:220, paragraph 72, and Opinion of Advocate General Mengozzi in Archer Daniels Midland v Commission, C‑511/06 P, EU:C:2008:604, points 113 and 114). Correspondingly, the Courts of the European Union have laid down a principle of the unfettered evaluation of evidence, according to which the determination of reliability or, in other words, the probative value of an item of evidence is a matter for those Courts (judgment of 8 July 2004, Dalmine v Commission, T‑50/00, EU:T:2004:220, paragraph 72, and Opinion of Advocate General Mengozzi in Archer Daniels Midland v Commission, C‑511/06 P, EU:C:2008:604, points 111 and 112).
99In order to establish the probative value of a document, it is necessary to take account of several factors, such as the origin of the document, the circumstances in which it was drawn up, the person to whom it was addressed and its content, and to consider whether, according to those aspects, the information it contains appears sound and reliable (judgments of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraph 1838, and of 7 November 2002, Vela and Tecnagrid v Commission, T‑141/99, T‑142/99, T‑150/99 and T‑151/99, EU:T:2002:270, paragraph 223).
100In that context, the Courts of the European Union have already taken the view that an analysis, produced by an applicant, could not be regarded as a neutral and independent expert report, in so far as it was requested and paid for by the applicant and drawn up on the basis of information provided by the applicant, without the accuracy or the relevance of that information being subject to any kind of independent assessment (see, to that effect, judgment of 3 March 2011, Siemens v Commission, T‑110/07, EU:T:2011:68, paragraph 137).
101The Courts of the European Union have also already had occasion to state that an expert report could only be deemed of any evidential value as regards its objective content and that a mere unsubstantiated statement in such a document was not, in itself, conclusive (see, to that effect, judgment of 16 September 2004, Valmont v Commission, T‑274/01, EU:T:2004:266, paragraph 71).
102It is in the light of the principles referred to in paragraphs 98 to 101 above that it is appropriate to assess, in the present case, the probative value of the accountant’s report.
103It must be noted in this respect that the accountant’s report was prepared by an accountancy firm listed on the register of chartered accountants in the region of Paris Île-de-France. It is clear from the letter on pages 2 and 3 of that report, sent by that accounting firm to the applicant and dated 21 July 2015, that, in accordance with the terms established at a meeting on 18 June 2015, the objective of the assignment entrusted to that firm by the applicant was to evaluate the damage that the measures at issue had caused, in Iran and in Europe, to the applicant and to its majority shareholder, Mr Mahmoudian. To carry out that assignment, that letter states in particular that ‘[that] report has been prepared on the basis of the documents provided to us by Fulmen and information from Iranian institutions’. It is clear from the wording of that letter that the accountant’s report was prepared at the applicant’s request for the purposes of demonstrating, in the context of the present dispute, the fact and the extent of the material damage alleged and that it relies mainly on the documents provided by the applicant. It is important to point out that those documents, to which reference is sometimes had in footnotes, are not annexed to the accountant’s report.
104On account of the context in which the accountant’s report was prepared and in accordance with the principles referred to in paragraphs 98 to 101 above, the probative value of that report must be qualified. The report cannot be regarded as being sufficient to prove its contents, in particular in relation to the fact and extent of the damage alleged. At most, it may serve as prima facie evidence, provided that it is corroborated by other, conclusive evidence.
105As regards the fact noted in paragraph 96 above, namely that, in order to demonstrate the existence of damage and of a causal link, the applicant relies substantially, or even exclusively, on the accountant’s report, in the light of the principle of unfettered production of evidence or freedom as to the form of evidence adduced recalled in paragraph 98 above, such use of that type of document is, in itself, permitted.
106However, as noted in paragraph 104 above, in the light of the context in which it was prepared, even though it is bears the ‘seal’ of a chartered accountant, and in accordance with the case-law recalled in paragraphs 98 to 101 above, the accountant’s report cannot be regarded as sufficient, as it is not substantiated by other evidence, to establish its contents, in particular in relation to the fact and extent of the damage alleged.
(2)The material damage allegedly sustained in Iran and the existence of a causal link
107The applicant submits that, after the measures at issue were imposed, it sustained material damage in Iran, which it separates into two categories, namely, on the one hand, financial and operational damage and, on the other, in essence, commercial or structural damage.
108It must be noted at the outset that, in paragraphs 78, 80 and 81 of the application, the applicant expressly states, although identifying them in the two categories of material damage mentioned in paragraph 107 above, that the present claim for compensation does not include the heads of damage concerning respectively the contractual penalties payable to its customers for delays in the completion of construction work, a reduction in its international scope and the loss of key staff and managers.
(i)Financial and operational damage
109The applicant submits that the measures at issue affected the implementation of ongoing projects as it was impossible for it to purchase certain equipment imported from Europe, it was impossible, in some cases, to substitute that equipment and, therefore, the applicant was unable to carry out the projects concerned and, where it managed to substitute that equipment, it suffered significant delays in implementing projects and a loss of margin as a result of those changes. This has resulted in three types of damage, namely a fall in annual net income, the inability to complete four existing contracts in Iran between 2010 and 2014 and the inability to secure new contracts in Iran during the period at issue.
110The Council, supported by the Commission, contests the applicant’s arguments relating to its claim for compensation for the various types of financial and operational damage allegedly sustained in Iran.
111In the first place, with regard to the head of damage resulting from a fall in its net income, the applicant submits that turnover, the accounting net profit and the profit margin fell significantly from 2011 onwards. According to the applicant, the fall in the ‘net profit/turnover’ ratio (from 2.14% in the 2007 to 2011 period to -4.35% in the 2011 to 2014 period) is directly linked to its inclusion in the lists at issue. That fall is said to be due to the following five factors: the increase in financial and bank charges, contractual penalties for delays in delivering projects to customers that were due, the increase in the purchase price of raw materials caused by the use of intermediaries for its foreign purchases, the cancellation of high-margin distribution contracts, such as the distribution contract with Omicron and the additional costs incurred as a result of the measures at issue, such as the subsequent revision of proposed studies and facilities, searching for potential new suppliers and reassigning members of staff to manage the measures at issue. In the reply, the applicant provides a schematic summary table containing the method for calculating the damage it has sustained resulting from the fall in its net income.
112With regard to evidence that actual damage was sustained, in respect of the damage resulting from a fall in its net income, first of all, it must be stated, as the Council has noted, that, in the application, the applicant makes no claim for compensation in figures for that damage as a whole.
113As set out in paragraph 95 above, in response to a question raised in the context of the third measure of organisation of procedure, the applicant has explained that that absence of a claim for compensation in figures for the damage resulting from a fall in its net income is the result of an obvious clerical error on its part which must, therefore, be taken into account by the General Court.
114However, first, it must be held that, although the absence of an assessment of the material damage set out under heading E.1.1.1 of the application is an objective reality, by contrast that absence does not appear, as the applicant claims, to be indicative of an obvious clerical error.
115It is readily apparent, after all, that, in respect of the five factors which are alleged to have given rise to the damage set out under heading E.1.1.1, the statement regarding the second factor, resulting from ‘penalties paid to customers for delays’ and the third, resulting from an ‘increase in the purchase price of raw materials’, does not contain any assessment. In those circumstances, it may be considered that the lack of any assessment of the total amount of the damage set out under heading E.1.1.1 may be attributed to each of those factors resulting in the total amount of damage not being assessed. Therefore, the clerical error made by the applicant does not appear to be obvious to the point that it may be taken into account by the General Court.
116Secondly, it should be recalled that, according to well-established case-law, whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed to it, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential submissions in law which must appear in the application. Moreover, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see judgment of 14 December 2005, Honeywell v Commission, T‑209/01, EU:T:2005:455, paragraph 57 and the case-law cited).
117In the present case, admittedly, in its reply to the question put to it in the context of the third measure of organisation of procedure, as is noted in paragraph 95 above, the applicant makes no reference to the fact that the obvious clerical error upon which it relies may be found in the accountant’s report.
118However, it must be pointed out that paragraphs 62 to 74 of the application, which are under heading E.1.1.1, reproduce almost word for word the passages contained in pages 9 to 13 of the accountant’s report, which appear under the title ‘Paragraph 1: Fall in net income’ in that report. A combined reading of those paragraphs of the application and those passages of the accountant’s report supports the finding that the applicant did not fully reproduce that report. Both Table 6, reproduced on pages 12 and 13 of that report, entitled ‘Impact of the fall in net income on [turnover between 2011 and 2014]’, and the conclusion, on page 13 of that report, which contains the assessment of the material damage at issue, namely EUR 2932367, have not been copied by the applicant.
119However, in the light of the case-law recalled in paragraph 116 above, it is not for the Court to assess whether the fact that the applicant did not copy the table or the conclusion mentioned in paragraph 118 above is a deliberate decision on its part, under its own free will when developing its line of argument and drafting its pleadings, or a mere oversight, constituting an obvious clerical error which may be taken into account by the Court.
120In the light of the foregoing considerations, it must be concluded that the applicant has not adduced evidence as to the actual damage alleged and therefore, without it being necessary to examine whether there is a causal link, the claim for compensation for the head of damage resulting from a ‘fall in its net income’ must be rejected as unfounded.
121In the second place, with regard to the head of damage resulting from the cancellation of four contracts that were in progress, namely the Kamyaran & Shaked, Mahyar, 6 Trans Khouzestan and GIS Tehran projects, that the applicant estimates to be worth EUR 771577, it is sufficient to state that the applicant has clearly adduced no evidence of the causal link between the alleged conduct and the damage.
122The applicant merely claims that, first, since its business partners had refused to deliver to it the equipment it had to supply, it was forced to terminate four projects in Iran between 2010 and 2014 and, secondly, the adoption of the acts at issue is the only decisive factor which resulted in the contracts being terminated.
123In support of those two claims, the applicant merely refers to Annex A.6 to the application which contains the ‘copy of project documents for the Kamyaran, Trans, Mahyar and GIS Tehran [projects]’. In the reply, it attaches in Annexes C.5, C.6 and C.7 three documents containing the margin calculation for three of the four projects and the related budget statement.
124The fact remains that neither the arguments put forward in the application, which are limited to a few lines, and in the reply, nor the documents annexed to those pleadings may be regarded as being even the slightest evidence of a causal link between the alleged conduct and the damage.
125Neither the application nor the reply contains any evidence capable of demonstrating that the measures at issue were, as the applicant claims, a determining cause of not continuing the four projects referred to in the application. Similarly, with regard to the alleged refusal by its business partners to deliver to it the equipment it needed to carry out those projects, the applicant does not provide any evidence at all of those refusals.
126At most it states in the reply that the alleged damage cannot have been caused by the United States measures since, first, it had no relationships with United States companies, nor did it trade supplies with the United States and, secondly, in the equipment sector, the largest global suppliers are three European companies, namely Schneider, ABB and Siemens.
127Nevertheless, such assertions cannot in any way be regarded as constituting proof that the alleged conduct is the determining cause of the damage at issue here, namely the cancellation of four contracts that were in progress in Iran.
128It follows from the foregoing considerations that, since the applicant has adduced no evidence of a causal link, the claim for compensation for the damage resulting from the cancellation of four contracts must be rejected as unfounded.
129In the third place, with regard to the head of damage resulting from the loss of new contracts in Iran, the applicant submits that, since it no longer had its sources of supplies and it had lost members of staff, it was unable to secure new contracts in that country during the period at issue. It must be held that, by ‘period at issue’, the applicant is referring to the period from the first listing of its name on 26 July 2010 (see paragraph 10 above) to its name being removed from the lists at issue on 19 December 2013 (see paragraph 23 above) (‘the period at issue’). It assesses the amount of the damage thus sustained at EUR 2838897. Once more, it must be noted at the outset that the applicant has adduced no evidence of the causal link between the alleged conduct and the damage.
130In that respect, it merely states that, with regard to the statistics concerning investments in the electricity sector in Iran and how its market share in that sector changed, falling from 10.69% in the eight-year period prior to the measures at issue to 2.70% during the period at issue, ‘it becomes clear that the sanctions led to a significant decrease in the applicant’s market share’.
131First of all, it is clear from the data in Table 9 of the accountant’s report that the investments in the electricity sector in Iran, after having risen from EUR 786000000 in 2007-2008 to EUR 1070785714 in 2008-2009, have fallen since the financial year 2009/2010, falling by approximately 16.6%, and then, in the financial year 2010/2011 by approximately 10%, in the financial year 2011/2012 by approximately 33.44% and, finally, in the financial year 2012/2013 by approximately 52.7%. Accordingly, those data show that, since the financial year 2009/2010, thus before the acts at issue were adopted, investments in the electricity sector in Iran had started to decline significantly.
132Secondly, it is clear from Table 10 of the accountant’s report that, admittedly, the applicant did not conclude any new contracts during the financial years 2012/2013 and 2013/2014. However, that same table also shows that, during the financial year 2011/2012, thus more than a year after the acts at issue were adopted, the applicant had successfully concluded contracts worth more than two times the amount of the contracts it had concluded in 2010/2011.
133Therefore, the data in Tables 9 and 10 of the accountant’s report are not capable of providing proof of the causal link between the alleged conduct and the damage at issue.
134Moreover, it should also be noted that the measures at issue applied only within the European Union and therefore, as such, they did not prohibit the applicant from putting itself forward in order to try and secure new contracts in Iran. The applicant has adduced no evidence to show that, at the very least, it had tendered for such contracts and that its tender had been rejected on account, in particular, as it claims, of its insufficient technical capacity and expertise. Ultimately, it does not even claim to have submitted a tender for any contracts in Iran, but merely states that it did not conclude any contracts between 2012 and 2014.
135Finally, the applicant does not specify which sources of electrical installation supplies and which members of its staff, who had the professional experience required to perform those types of contracts, it had lost following the adoption of the acts at issue.
136In the light of the foregoing considerations, the applicant has not proved that the adoption of the measures at issue explains why its market share in the electricity sector in Iran has fallen. Both the difficulties encountered by that sector, in relation to the fall in investments, and the lack of evidence that it had tendered for contracts in that sector may explain that decrease in market share.
137Therefore, since the applicant has adduced no evidence of a causal link, the claim for compensation for the damage resulting from the loss of new contracts in Iran must be rejected as unfounded.
138In the light of all the foregoing considerations, the claim for compensation for financial and operational damage must be rejected as unfounded.
(ii)Commercial or structural damage
139As regards, in essence, the commercial or structural damage for which it seeks compensation, the applicant claims, first, that its inclusion in the lists at issue resulted in its relations with its banks and its privileged partners being interrupted. Secondly, in order to avoid ‘a domino effect of sanctions’, its inclusion in the lists at issue required it to reduce the structure of the group, by the compulsory sale of its shareholdings, including three majority holdings, in six other Iranian companies.
140The Council, supported by the Commission, contends that the claim for compensation for commercial or structural damage allegedly sustained in Iran should be rejected.
141In the first place, with regard to the breakdown of its commercial relations with the bank Tejarat and six privileged partners, Omicron on the one hand and five other companies on the other, which are said to have been caused by the acts at issue, it is true that the applicant acknowledges that the termination of those partnerships had an impact on its business which is already included in the calculation of the fall in its net income and has already been put forward in the financial and operational damage section. However, in respect of the damage claimed here, it also relies on damage that occurred after the sanctions were annulled and that relates, in essence to the prospects of restoring those privileged partnerships. The loss of those privileged partnerships, irrespective of the profits that were not realised during the period at issue, resulted in it sustaining a loss which it estimates to be EUR 1026974.
142In response to a question put by the Court, first in the third measure of organisation of procedure and, secondly, at the hearing, the applicant stated that it was abandoning its claim for compensation for damage related to the breakdown of relations with Tejarat, which was noted in the minutes of the hearing. Therefore, the examination of the damage resulting from the termination of business relations is limited to the six privileged partnerships on which the applicant relies.
143In this respect, first, with regard to the termination of relations with Omicron, for which the applicant claims to have been the exclusive distributor since 2003 and which, following the adoption of the acts at issue, granted exclusive distribution rights to another Iranian company, the applicant assesses the damage sustained at EUR 526974, which is said to correspond to an annual margin that it would have achieved over a three-year period, at a rate of 22% applied to an annual average of regular sales assessed at EUR 798449.
144As far as evidence of the damage is concerned, it should be noted that, in the present case, the applicant is claiming compensation for a future loss of earnings that it calculates using three-year projections.
145It must be pointed out that the applicant does not adduce any evidence of profits that were not realised following the termination of the contractual relationship at issue. At most, it simply relies on the application of a net profit margin of 22%, applied to an annual average of regular sales that it assesses at EUR 798449.
146First, neither the application, nor the accountant’s report even, or the evidence it has submitted demonstrate how the ‘regular sales at an annual average of EUR 798449’, on which the applicant relies, have been calculated. Nevertheless, that figure forms the basis of its calculation of the amount of the alleged damage. Secondly, the applicant has also not adduced any evidence capable of demonstrating that it would actually achieve the net profit margin of 22% on which it relies. At most, it claims that that margin, as is clear from the footnote to paragraph 86 of the application, ‘was calculated … on the biggest sale and by taking into account 30% of costs’, but it is not possible to determine the documents on which the applicant relies in order to adduce evidence as to the actual damage at issue.
147In the light of the foregoing considerations, it must be concluded that, with regard to the termination of trade relations with Omicron, the applicant has not adduced evidence of actual and certain damage.
148Therefore, without it being necessary to determine whether the evidence of a causal link has been adduced, the claim for compensation for damage related to the termination of its trade relations with Omicron must be rejected as unfounded.
149Secondly, with regard to privileged partnerships with five other companies, the applicant estimates the cost of restoring those trade relations to be EUR 100000 per case.
150In that regard, at the outset, as far as evidence of the damage is concerned, it is sufficient to note that the applicant has adduced no evidence to prove that the relations with the five companies concerned already existed before the acts at issue were adopted and to demonstrate the nature of those relations. Moreover, the fact remains that, once more, the applicant relies on a future and hypothetical expense the valuation of which is purely arbitrary and at a flat rate. Therefore, the damage alleged, resulting from the termination of business relations with the five companies listed in paragraph 141, is neither actual nor certain.
151It follows from the foregoing that the claim for compensation for damage resulting from the disruption of relations between the applicant and Omnicron and its five other privileged partners must be rejected as unfounded.
152In the second place, the applicant submits that it has had to sell its shares in a number of Iranian companies in order to avoid ‘a domino effect of sanctions’. It states that, as it is unable to estimate the amount of the financial loss as a result of those forced sales and the reduction in its capacity, it has merely calculated the expenditure required to restore those shareholdings. In that regard, it estimates the costs of prior auditing and legal fees to be EUR 30000 in respect of the majority shareholdings and EUR 5000 in respect of the minority shareholdings, thus a total amount of EUR 105000. In an annex to the reply, it attaches an estimate for services to monitor those companies for the purposes of restoring a group of the same size.
153As far as evidence of that damage is concerned, it is again readily apparent that the damage alleged in this instance is purely hypothetical and future. The applicant has adduced no evidence capable of justifying the two amount types claimed in respect of the cost of prior auditing and the legal fees that would necessarily be incurred in order to buy back the majority and the minority shareholdings. Moreover, it must be noted that, in that regard, the applicant has itself acknowledged, in paragraph 11 of the application, that it is unable to assess the amount of the financial loss resulting from the forced sales at issue on the one hand and the reduction in its capacity on the other. A valuation of the company shareholdings that it claims to have been forced to sell is essential in order to assess the damage allegedly sustained. Even if the applicant had decided to sell its shares in a number of Iranian companies in order to avoid ‘a domino effect of sanctions’, this cannot, in itself, be sufficient to provide proof of the existence of damage. Furthermore, the applicant does not explain why it has been unable to carry out that assessment of the damage on which it relies.
154With regard to the causal link, it must be pointed out that the applicant has adduced no evidence that the shares that it held in a number of Iranian companies were sold as a result of any measure linked to the adoption of the acts at issue. In addition, it does not set out the skills and technologies within the companies in which it held shares which could have led to a risk of ‘a domino effect of sanctions’. At most, it is apparent from the text under Table 16 on page 22 of the accountant’s report, a page to which the applicant refers in paragraph 91 of the application, that the shares sold had initially been purchased either to expand the applicant’s offerings to complementary products and services, or to exert an influence in undertakings that could have generated opportunities in the market. Nevertheless, although that description in general terms of its investment choices reflects relatively common business strategy choices, those choices do not explain why the applicant claims that it had to sell its shareholdings in the Iranian companies concerned.
155In the light of the foregoing considerations, as it has not adduced evidence of the damage and of the causal link, the claim for compensation for damage resulting from the forced sale of the applicant’s shareholdings in a number of Iranian companies, in order to avoid ‘a domino effect of sanctions’, must be rejected as unfounded.
156It follows from all of the findings above that the claim for compensation for the material damage allegedly sustained in Iran must be rejected as unfounded.
(3)The material damage allegedly sustained in Europe and the existence of a causal link
157With regard to the material damage allegedly sustained in Europe, the applicant claims that, after the measures at issue were imposed, it sustained damage relating, first of all, to its direct stake in the capital of Codefa Connectique S.A.S. (‘Codefa’), a company incorporated under French law, secondly, to the loss of assets it had entrusted to an Austrian company known as SED and, finally, to the postponement of a number of research and development projects it had launched, since 2007, in cooperation with several European companies.
158The Council contests the applicant’s arguments regarding material damage allegedly sustained in Europe.
159In the first place, with regard to the claim for compensation for the damage sustained by the applicant in respect of it selling its shareholding in its French subsidiary, Codefa, it assesses that damage to be EUR 244109 in respect of the transaction, to which it adds EUR 30000 of transaction costs. In the reply it states that that sale may have enabled other shareholders to limit the damage related to Codefa that they sustained. In that regard, as an annex to the reply, it attaches an invoice for fees that allegedly relates to the audit prior to the sale.
160First, as far as evidence of the damage is concerned, it is true that the applicant cites financial difficulties encountered by Codefa which were allegedly caused by the acts at issue, which justified its decision to sell its shareholding in that company. When it sold those shares, the applicant suffered as a result of their decline in value, in respect of which it is claiming compensation. However, first, it must be pointed out that, although the applicant claims to have invested EUR 232490 in purchasing shares in that company, it is apparent from the wording used in the application that, since 2010, it had not paid the vendor the balance of EUR 155000 in connection with that purchase. Secondly, with regard to the invoice for fees that the applicant submitted as an annex to the reply in order to justify the EUR 30000 transaction costs in respect of which it is claiming compensation, the fact remains that, as the applicant itself acknowledged at the hearing, which was noted in the minutes, that document, which is undated, relates to accountant’s fees that had been paid to assess ‘the merits of investing in Codefa Connectique’, an investment which led to the applicant purchasing that company in 2009, thus a year before the measures at issue were adopted. Therefore, the transaction costs on which the applicant relies do not relate in any case to the sale of its shares in Codefa in November 2010, the sale in respect of which it is claiming compensation, but to the purchase of those shares in 2009. Accordingly, there being no need to rule on the admissibility of the abovementioned annex since it was not produced before the Court until the reply stage, it must be rejected as irrelevant with regard to the damage at issue here. It is clear from the foregoing considerations that the applicant has adduced no evidence of the alleged damage.
161Secondly, and in any event, the applicant has also adduced no evidence of a causal link. It must be held that, at most, in paragraphs 94 and 97 of the application in which various factors are identified to support the finding that the difficulties encountered by Codefa resulted from the adoption of the acts at issue, the applicant refers to pages 24 and 25 of the accountant’s report and to Annex A.19 to the application. For the purposes of that finding, reference is made, in the footnotes on pages 24 and 25 of that report, to several pieces of evidence. However, that evidence is not attached to the accountant’s report. Moreover, the applicant does not specify whether it has adduced that evidence in the present proceedings. Therefore, the applicant has not demonstrated a causal link between the alleged damage and the conduct complained of.
162For the sake of completeness, it should be noted that, although, as is clear from the title on the schedule of annexes attached to the application, Annex A.19 is composed of ‘copies of documents relating to Codefa’, the fact remains that the applicant does not refer to any of those documents even though a total of 114 pages have been reproduced in the file of annexes to the application.
163First, as noted in paragraph 116 above, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based. This is particularly the case where an annex is similar to a file combining several documents relating to a subject or an individual, documents which are reproduced on a substantial number of pages. In such a case, in the absence of a specific reference, by the disclosing party, to the elements and parts of those annexes it wishes to highlight in order to prove the merits of its arguments, in the light of the case-law cited in paragraph 116 above, the evidential and instrumental value of such annexes is significantly reduced.
164That is clearly the case, in the present proceedings, with regard to Annex A.19 to the application, which, as described by the applicant, is composed of ‘copies of documents relating to Codefa’, reproduced on pages 390 to 503 of the file of annexes to the application, thus a total of 114 pages. In the absence of a specific reference, in the application, to elements in those 114 pages of Annex A.19, it must be considered that the applicant has not proven that its arguments that are at issue in the present case are well founded.
165Secondly, even if the Court, without searching for or identifying those elements in Annex A.19 to the application, merely analyses the first document attached in that annex, reproduced on page 390 of the annexes to the application, a document which consists of a registered letter with acknowledgement of receipt, sent on 2 September 2010 by the bank Société Générale to Codefa, it is true that its subject matter, entitled ‘Sixty days’ notice to close the account Termination of the C.T.C. credit account Account number: …’, and its wording appear to relate to the breakdown of the relationship between that bank and that company on which the applicant relies in paragraph 95 of the application. However, the fact remains that that letter does not state that the closure of the Codefa account with Société Générale and the cancellation of the EUR 80000 overdraft facility that Codefa had with that bank resulted from the adoption of the acts at issue.
166It follows from the foregoing considerations that the applicant has adduced no evidence of the damage and the causal link and therefore the claim for compensation for the damage resulting from the alleged forced sale of its shareholding in its subsidiary Codefa must be rejected as unfounded.
167In the second place, with regard to the claim for compensation for the damage it states that it suffered as it was unable to recover the advance of EUR 2 828 370.44 that it had paid to the Austrian company SED to purchase equipment and products, from various European countries, that were essential for the continuation of the applicant’s activities, it assesses that damage to be the advance amount paid, plus EUR 262266, calculated by applying a discount rate of 3% over three years, thus a total of EUR 3090636.
168First, as far as evidence of the damage is concerned, it is clear from the first paragraph of heading E.2.2.1 of the application, entitled ‘Loss of assets in Austria’, and paragraph 98 of the application that the applicant, which has merely reproduced almost in their entirety the relevant passages of pages 25 and 26 of the accountant’s report, claims that, on the date of its inclusion in the lists at issue, the amount of the advances it had paid to SED was EUR 2 828 370.44.
169On page 25 of the accountant’s report, with regard to the amount stated in paragraph 168 above, reference is made, in a footnote, to a ‘recognition of SED receivables and statements of receivables made by Fulmen’. However, those documents are not attached to that report and the applicant does not specify whether it has submitted them in the present case.
170Admittedly, it is not inconceivable that those elements may appear in Annex A.4 to the application, to which the applicant makes a general reference in a footnote under the title of heading E.2.2.1 of the application.
171However, as noted in paragraph 116 above, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based. Again, Annex A.4 to the application, entitled ‘Documents relating to SED’ on the schedule of annexes attached to the application, consists of a number of documents that are reproduced on pages 36 to 71 of the file of annexes to the application. In the absence of a specific reference, in the application, to the elements and parts of that annex it wishes to highlight in order to prove the merits of its arguments, in the light of the case-law referred to in paragraph 116 above in particular, it must be considered that the applicant has not adduced proof that its arguments that are at issue in the present case are well founded.
172In the light of the foregoing considerations, it must be concluded that the applicant has not established the fact of its claim against SED and, therefore, it has adduced no evidence of the damage.
173Secondly, in any event, as far as evidence of a causal link is concerned, the fact remains that, contrary to what the applicant submits, it is not clear from the documents in the case file that the factor giving rise to the alleged damage, namely that it was unable to recover the advance it had paid to SED, stems from the applicant’s name being included in the lists at issue. As the applicant itself states in the application, in the first paragraph of heading E.1.1.1 of the application, ‘before the sanctions against the applicant were lifted, SED declared that it was insolvent and the advance paid by the applicant became irrecoverable following SED’s liquidation’. Therefore, the applicant has by no means adduced proof of the causal link between the conduct complained of and the alleged damage.
174In the light of the foregoing considerations, the applicant has adduced no evidence of the damage and the causal link and therefore the claim for compensation for the damage resulting from it being unable to recover the advance it had paid to the Austrian company SED must be rejected as unfounded.
175In the third place, with regard to the alleged damage in respect of the postponement of the applicant’s research and development activities that it had launched, since 2007, in cooperation with several European companies and which it estimated in the application at EUR 2179125, the following should be noted. In the context of the third measure of organisation of procedure, the Court invited the applicant to explain how, on the one hand, in paragraph 117 of the reply, it stated that it stood by its arguments set out in paragraphs 60 to 101 of the application, in the knowledge that paragraphs 99 and 101 thereof relate to the damage resulting from the postponement of its research and development activities, whereas, in paragraph 116 of the reply, it expressly stated that it had ‘chosen not to include it in the damage for which compensation is sought’. Taking the view that the applicant’s response to that question lacked clarity, the Court asked it the same question at the hearing. The applicant then acknowledged that the error of referring to paragraphs of the application had crept into paragraph 117 of the reply. That is when it stated that that paragraph was to be read as indicating that it ‘therefore [stood] by its arguments set out in paragraphs 60 [to] 98 of the application’ and not ‘in paragraphs 60 [to] 101 of the application’, which was noted in the minutes of the hearing. Accordingly, it must be held that the applicant has decided to abandon its claim for compensation for the damage resulting from the postponement of its research and development activities.
176It follows from all of the findings above that the claim for compensation for the material damage allegedly sustained in Europe must be rejected as unfounded.
177In the light of the conclusions drawn in paragraphs 156 and 176 above, the claim for compensation for the material damage allegedly sustained must be rejected as unfounded.
(b)The non-material damage alleged and the existence of a causal link
178The applicant submits that the adoption of the acts at issue and maintaining its name on the lists at issue, in so far as this affected its ‘personality rights’ and in particular its reputation, caused it significant non-material damage which it assesses ex aequo et bono at EUR 100000.
179In its reply to the question put to it in the context of the second measure of organisation of procedure regarding the consequences of the judgment of 30 May 2017, Safa Nicu Sepahan v Council (C‑45/15 P, EU:C:2017:402), for the present case, it takes the view that, here, in view of the aggravating circumstances resulting, in particular, from the misuse of power by the Council, the full reparation for its non-material damage must be greater than the amount agreed in the abovementioned judgment.
180The Council, supported by the Commission, contends that the claim for compensation for the non-material damage alleged must be rejected.
181In that regard, the Council considers that, first of all, the applicant does not rely on any adverse effect on its economic activity other than those already covered by its claims for compensation for material damage. It states that the negative effects of the measures at issue on the applicant’s reputation, in so far as it has been stigmatised as being involved in the nuclear proliferation programme, have been sufficiently compensated for by the annulment of the measures at issue and the publicity that that annulment received, both in the publication in the Official Journal of the European Union and, in particular, in the broadcast of a report on the programme ‘sept à huit’ on the French television channel TF1. Since the applicant acknowledges that its economic activity has picked up since the measures at issue have been lifted, this demonstrates that the applicant’s reputation did not suffer damage that continued beyond the annulment of the acts at issue and therefore that annulment constitutes sufficient compensation.
182Secondly, with regard to the non-material damage that goes beyond the sphere of the applicant’s current commercial interests, the applicant has not put forward any argument or submitted any evidence that is capable of establishing that that damage is actual and certain, and that there is a direct link between that damage and the acts at issue.
183Finally, with regard to the extent of the alleged damage, the applicant does not specify the criteria or factors on which it bases its calculation as to the amount of compensation it is claiming, or what that amount seeks to redress. Account must be taken of the fact that, unlike the applicant in the case giving rise to the judgment of 30 May 2017, Safa Nicu Sepahan v Council (C‑45/15 P, EU:C:2017:402), in the present case, the applicant remains subject to the United States measures.
184In the first place, it should be recalled that the measures at issue have substantial negative consequences and a considerable impact on the rights and freedoms of the persons covered (see, to that effect, judgment of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 70). In that regard, when an entity is the subject of restrictive measures because of the support it has allegedly given to nuclear proliferation, it is publicly associated with conduct which is considered a serious threat to peace and international security, with the result that it affects its reputation and, therefore, causes it non-material damage (judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 80).
185First, the damage to the reputation of the entity concerned, provoked by restrictive measures such as the measures at issue, does not relate to the economic and commercial capacity of that entity but to its willingness to be involved in activities regarded as reprehensible by the international community. Thus, the effect on the entity concerned goes beyond the sphere of its current commercial interests (see, to that effect, judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 82).
186Secondly, that damage is all the more serious since it is caused not by the expression of a personal opinion, but by an official statement of the position of an EU institution, which is published in the Official Journal of the European Union and entails binding legal consequences (judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 83).
187In view of the foregoing, it must be held that, in the present case, the adoption of the acts at issue and maintaining the applicant’s name on the lists at issue caused it non-material damage, distinct from any material loss resulting from an impact on its commercial relations. Consequently, it must be recognised as having a right to receive compensation for that damage (see, to that effect, judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 85).
188As regards the actual non-material damage allegedly suffered, it should be recalled that, concerning such damage in particular, if adducing or offering evidence is not necessarily held to be a condition for the recognition of that damage, it is for the applicant to at least establish that the conduct alleged against the institution concerned was capable of causing damage to it (see judgment of 16 October 2014, Evropaïki Dynamiki v Commission, T‑297/12, not published, EU:T:2014:888, paragraph 31 and the case-law cited; see also, to that effect, judgment of 28 January 1999, BAI v Commission, T‑230/95, EU:T:1999:11, paragraph 39).
189Moreover, while the Court of Justice held, in the judgment of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331), that the annulment of unlawful restrictive measures was capable of constituting a form of reparation for non-material damage suffered, it does not follow from this that that form of reparation is necessarily sufficient, in every case, to ensure full reparation for such damage, every decision in that regard being required to be taken on the basis of an assessment of the circumstances of the case (judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 49).
190In the present case, it is true that the annulment of the acts at issue by the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), which found that the applicant’s association with nuclear proliferation is unjustified and, consequently, unlawful, is capable of constituting a form of reparation for the non-material damage the applicant has suffered and for which it seeks compensation in the present case. However, in the circumstances of the present case, that annulment cannot represent full reparation for that damage.
191It follows from the case-law recalled in paragraph 184 above that the adoption of the acts at issue and, accordingly, the allegation that the applicant was involved in nuclear proliferation, resulted in its reputation being affected and, therefore, also the way in which third parties behaved towards it (see, to that effect, judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 88).
192Those effects, which lasted for almost three and a half years and are the cause of the non-material damage suffered by the applicant, cannot be wholly offset by a subsequent finding, in the present case, that the acts at issue are unlawful for the following reasons.
193First, the adoption of restrictive measures against an entity tends to attract more attention and provoke a greater reaction, in particular outside the European Union, than does their subsequent annulment (see, to that effect, judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 88).
194Secondly, the allegation levelled by the Council at the applicant is particularly serious inasmuch as it associates it with nuclear proliferation, in other words, an activity representing, in the Council’s view, a threat to international peace and security (see, to that effect, judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 89).
195Thirdly, as is clear from paragraph 22 above, that allegation has not been substantiated by any relevant information or evidence (see, to that effect, judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 90).
196Fourthly, and in any event, although the listing of the applicant’s name, which was published in the Official Journal, could have been withdrawn by the Council at any time, or at the very least amended or supplemented, in order to remedy any possible unlawfulness which could invalidate it, it was maintained for almost three and a half years despite the applicant’s objections, in particular with regard to the lack of evidence regarding the allegation made against it. In that regard, the file does not contain anything which suggests that the Council, at any time or in any way, either on its own initiative or in response to the applicant’s objections, checked whether that allegation was well founded in order to limit the harmful consequences which it would entail for the applicant (see, to that effect, judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, EU:T:2014:986, paragraph 91).
197Such checks would in any event have been particularly justified in this case, following the delivery of the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), in the light of the severity of the unlawful conduct it found, on the basis of settled case-law. Although that judgment, at least in part, was capable of constituting reparation for the non-material damage suffered by the applicant, it cannot in any event have had any effect in that respect with regard to the period after it was delivered, a period of approximately one year and nine months during which the applicant’s name was maintained on the list.
198Without in any way seeking to call into question the right of the institution concerned to bring an appeal against the General Court’s final decision or the deferral of the effects of that decision, arising from the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, it must be held that, in a Union governed by the rule of law, in the light of the severity of the unlawful conduct found by the Court, the institution concerned must, even if it is alongside bringing an appeal, check the findings that were penalised by the Court. The aim of such a requirement is not to force the institution concerned to have already executed the Court’s judgment, but, as is clear from paragraph 91 of the judgment of 25 November 2014, Safa Nicu Sepahan v Council (T‑384/11, EU:T:2014:986), to check whether, in the light of the conclusions drawn by the Court, the contested acts may, or even must, be withdrawn, replaced or amended in order to limit their harmful consequences.
199The non-material damage thus caused, by maintaining the applicant’s name on the lists after the delivery of the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), as the applicant expressly alleges in the application, is different from the damage that occurred prior to the delivery of that judgment. Accordingly, in that judgment, the Court formally concluded, as the applicant submits, that the listing of its name was unlawful, in the light of settled case-law, as there was no evidence to support the allegation made against it.
200In the present case, the Council was therefore able to assess whether maintaining the applicant’s name on the lists as it stands, namely without any evidence to support the allegation made against it, was justified, in particular in the light of the assessments made and conclusions reached by the Court in the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), without risking causing more damage than the applicant had already suffered on the date of delivery of that judgment.
201That conclusion cannot be altered in the light of the judgment of 28 November 2013, Council v Fulmen and Mahmoudian (C‑280/12 P, EU:C:2013:775). In that judgment, the Court of Justice only examined and dismissed the appeal brought by the Council against the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), annulling the acts. It was unable to give a ruling on the compensation for the non-material damage caused by maintaining the applicant’s name on the lists at issue after that latter judgment was delivered.
202In the light of the foregoing considerations and, in any event, of the considerations in paragraphs 196 to 200 above, it must be concluded that the annulment of the listing of the applicant’s name by the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), did not constitute full reparation for the non-material damage suffered by the applicant.
203In the second place, it is necessary to examine whether, as the applicant claims, certain additional factors may have contributed to exacerbating the non-material damage it suffered and, therefore, should be taken into account when evaluating the compensation for the damage it has suffered.
204First of all, with regard to the alleged protraction and exacerbation of the non-material damaged suffered by the applicant, on the ground that the Council, first, exhausted the remedies available to it under the FEU Treaty, in particular by bringing an appeal against the judgment of 21 March 2012, Fulmen and Mahmoudian v Council (T‑439/10 and T‑440/10, EU:T:2012:142), and, secondly, put forward for the first time before the Court of Justice a number of pleas or arguments in support of that appeal, including by referring, without having sent it however, to confidential material in the acts at issue, that argument cannot succeed. In the same way and for the same reasons that it was held in paragraphs 72 to 78 above that such circumstances cannot constitute a factor that makes the unlawful act committed by the Council worse, they cannot also, in principle, be the cause of any non-material damage that may give rise to non-contractual liability on the part of the European Union.
205Secondly, as regards the broadcast of the report on the programme ‘sept à huit’ by the French television channel TF1, far from stating, as the applicant alleges, on account of its content, that it suffered greater non-material damage, that programme, which is available on the internet, rather contributes to restoring the applicant’s reputation. In particular, it publicises the annulment of the acts at issue by the EU Courts. However, with regard to the particularly serious allegation levelled by the Council at the applicant, the broadcast of that programme cannot, as the Council submits, be regarded as capable of counteracting the negative effects of the measures at issue on the applicant’s reputation.
206Finally, with regard to the non-material damage alleged, which is said to stem from the United States measures, damage for which the European Union is said to be liable, on the ground that the United States measures were adopted on the basis of the acts at issue, such arguments cannot succeed. It is readily apparent that the United States measures, as they have been produced as an annex to the reply, make no reference to the acts at issue or even to any action that may have been taken by the European Union against the applicant. Therefore, each of the restrictive measures adopted by the European Union and in the United States respectively produce independent effects. Thus, even if the United States measures could have caused damage to the applicant, since those measures are independent from the acts at issue, the European Union cannot be held liable for any possible non-material damage that they may have caused the applicant. However, also in the light of the fact that the United States measures are independent, the Council is wrong to take the view that the evaluation of the amount of the non-material damage sustained by the applicant must take into account the fact that the applicant remained subject to the United States measures after the acts at issue were annulled.
207Accordingly, evaluating the non-material damage suffered by the applicant ex aequo et bono, the Court considers that an award of EUR 50000 would constitute appropriate compensation.
208To conclude, the present action for compensation must be upheld and, accordingly, the applicant must be awarded compensation of EUR 50000 in respect of the non-material damage it has suffered. However, its claim for compensation for material damage is rejected.
IV.Costs
209Under Article 134(2) of its Rules of Procedure, where there is more than one unsuccessful party, the General Court must decide how the costs are to be shared.
210In the present case, the Council was unsuccessful in respect of the claim for compensation for the non-material damage suffered by the applicant, whereas the applicant was unsuccessful in its claim for compensation for material damage. In those circumstances, each party should bear its own costs.
211In accordance with Article 138(1) of the Rules of Procedure, institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Commission must bear its own costs.
Operative part
On those grounds,THE GENERAL COURT (First Chamber)hereby:
1.Orders the Council of the European Union to pay Fulmen compensation of EUR 50000 in respect of the non-material damage suffered;
2.Dismisses the action as to the remainder;
3.Orders Fulmen, the Council and the European Commission to bear their own respective costs.
Delivered in open court in Luxembourg on 2 July 2019.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.