Judgments nº T-346/15 of The General Court, March 14, 2017

• Resolution Date: March 14, 2017
• Issuing Organization: The General Court
• Decision Number: T-346/15

(Common foreign and security policy - Restrictive measures taken against Iran with the aim of preventing nuclear proliferation - Freezing of funds - Re-listing of the applicant - Obligation to state reasons - Manifest error of assessment - Res judicata - Misuse of powers - Fundamental rights)

In Case T-346/15,

Bank Tejarat, established in Tehran (Iran), represented by S. Zaiwalla, P. Reddy, A. Meskarian, Solicitors, M. Brindle QC, and R. Blakeley, Barrister,

applicant,

v

Council of the European Union, represented by M. Bishop and A. Vitro, acting as Agents,

defendant,

APPLICATION pursuant to Article 263 TFEU for annulment of Council Decision (CFSP) 2015/556 of 7 April 2015 amending Council Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2015 L 92, p. 101), and of Council Implementing Regulation (EU) 2015/549 of 7 April 2015 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2015 L 92, p. 12), in so far as they concern the applicant,

THE GENERAL COURT (First Chamber),

composed of I. Pelikánová (Rapporteur), President, V. Valančius and U. Öberg, Judges,

Registrar: E. Coulon,

gives the following

Judgment

Background to the dispute

1 The applicant, Bank Tejarat, is an Iranian bank.

2 The 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.

3 The applicant’s name was entered on the list in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), by means of Council Decision 2012/35/CFSP of 23 January 2012 amending Decision 2010/413 (OJ 2012 L 19, p. 22).

4 Consequently, the applicant’s name was entered on the list in Annex VIII to Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), by means of Council Implementing Regulation (EU) No 54/2012 of 23 January 2012 implementing Regulation No 961/2010 (OJ 2012 L 19, p. 1).

5 When it adopted Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010 (OJ 2012 L 88, p. 1), the Council of the European Union included the applicant’s name on the list in Annex IX to that regulation. The reasons stated with regard to the applicant were the same as those set out in Implementing Regulation No 54/2012.

6 Following the adoption of Council Decision 2012/457/CFSP of 2 August 2012 amending Decision 2010/413 (OJ 2012 L 208, p. 18) and of Council Implementing Regulation (EU) No 709/2012 of 2 August 2012 implementing Regulation No 267/2012 (OJ 2012 L 208, p. 2), and the corrigendum to Implementing Regulation No 709/2012, published on 12 February 2013 (OJ 2013 L 41, p. 14), the reasons given in respect of the applicant were worded as follows:

‘Bank Tejarat is a partly State-owned bank. It has directly facilitated Iran’s nuclear efforts. For example, in 2011, Bank Tejarat facilitated the movement of tens of millions of dollars in an effort to assist the UN designated Atomic Energy Organisation of Iran’s (AEOI) ongoing effort to acquire yellowcake uranium. The AEOI is the main Iranian organisation for research and development of nuclear technology, and manages fissile material production programmes.

Bank Tejarat also has a history of assisting designated Iranian banks in circumventing international sanctions, for example acting in business involving UN designated Shahid Hemmat Industrial Group cover companies.

Through its financial services to EU designated Bank Mellat and Export Development Bank of Iran (EDBI) in the past few years, Bank Tejarat has also supported the activities of subsidiaries and subordinates of the Iran Revolutionary Guard Corps, UN designated Defense Industries Organisation and UN designated MODAFL.’

7 By application lodged at the General Court Registry on 16 April 2012, the applicant brought an action for annulment of Decision 2012/35, Implementing Regulation No 54/2012, Regulation No 267/2012 and Implementing Regulation No 709/2012, in so far as those acts concerned it.

8 By judgment of 22 January 2015, Bank Tejarat v Council (T-176/12, not published, EU:T:2015:43), the General Court annulled the acts mentioned in paragraph 7 above in so far as they concerned the applicant, on the ground that the Council had not established that the applicant had provided support for nuclear proliferation or assisted other persons and entities to breach or avoid the restrictive measures to which they were subject. As no appeal was brought against that judgment, it became final and res judicata.

9 By letter of 12 March 2015, the Council stated to the applicant, inter alia, that it considered that, ‘since [the applicant] [was providing] financing to crude oil production and refining projects which necessarily require[d] the acquisition of key equipment and technology for those sectors as referred to in Articles 4 and 4a of Decision 2010/413 and Article 8 of Regulation No 267/2012, it [was providing] support for Iran’s nuclear proliferation activities through involvement in the procurement of prohibited goods and technology’, and that, therefore, ‘[it met] the conditions for designation under Article 20(1)(c) and (b) of Decision 2010/413 and Article 23(2)(d) and (a) of Regulation No 267/2012 respectively’. The Council informed the applicant that it intended to include the applicant again on 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 on the basis of the following statement of reasons:

‘Bank Tejarat provides significant support to the Government of Iran by offering financial resources and financing services for oil and gas development projects. The oil and gas sector constitutes a significant source of funding for the Government of Iran and several projects financed by Bank Tejarat are carried out by subsidiaries of entities owned and controlled by the Government of Iran. In addition, Bank Tejarat remains partly owned by and closely linked to the Government of Iran which is therefore in a position to influence Bank Tejarat’s decisions, including its involvement in the financing of projects regarded by the Iranian Government as a high priority.

Furthermore, as Bank Tejarat provides financing to various crude oil production and refining projects which necessarily require the acquisition of key equipment and technology for those sectors whose supply for use in Iran is prohibited, Bank Tejarat can be identified as being involved in the procurement of prohibited goods and technology.’

10 That letter from the Council to the applicant was accompanied by documents on which the Council based its decision once again to include the applicant’s name on the lists (‘the re-listing decision’).

11 By letter of 16 March 2015, the Council sent the applicant a declassified extract from the proposal for a re-listing decision presented by a Member State (‘the Member State’s proposal’).

12 By letter of 24 March 2015, the applicant, through its lawyer, challenged the reasons for the re-listing decision. It maintained that, since the allegations and evidence put forward by the Council to justify that decision were already available when the applicant’s name was first entered on the lists (‘the original listing’) and before the judgment of 22 January 2015, Bank Tejarat v Council (T-176/12, not published, EU:T:2015:43), that decision constituted an infringement of Article 266 TFEU, an abuse of process, and breach of the principle of res judicata, of the principle of legal certainty, of the right to effective judicial protection and of the principle of good administration. It also submitted that certain allegations in the summary of reasons were incorrect and that the reasons given for them were insufficient.

13 By Council Decision (CFSP) 2015/556 of 7 April 2015 amending Decision 2010/413 (OJ 2015 L 92, p. 101), the applicant’s name was entered on the list in Annex II to Decision 2010/413 with effect from 8 April 2015, on the basis of the new statement of reasons set out in paragraph 9 above.

14 Consequently, by Council Implementing Regulation (EU) 2015/549 of 7 April 2015 implementing Regulation No 267/2012 (OJ 2015 L 92, p. 12), the applicant’s name was entered on the list in Annex IX to the latter regulation with effect from 8 April 2015, on the basis of the new statement of reasons set out in paragraph 9 above.

15 By letter of 8 April 2015 to the applicant’s lawyer, the Council challenged the observations made by the applicant in its letter of 24 March 2015 and informed it that the re-listing decision had been adopted.

Procedure and forms of order sought

16 The applicant brought the present action by application lodged at the General Court Registry on 18 June 2015.

17 Under Article 106(3) of its Rules of Procedure, if no request for a hearing has been submitted by the main parties within three weeks after service of notification of the close of the written part of the procedure, the General Court may decide to rule on the action without an oral part of the procedure. In this instance, since the Court considers that it has sufficient information available to it from the material in the file, it has decided, no such request having been made, to give a decision without taking further steps in the proceedings.

18 The applicant claims that the Court should:

- annul Decision 2015/556 and Implementing Regulation 2015/549 in so far as those measures apply to the applicant;

- order the Council to pay the costs.

19 The Council contends that the Court should:

- dismiss the action;

- order the applicant to pay the costs.

Law

20 In support of its action, the...