Judgments nº T-52/15 of The General Court, April 28, 2016

• Resolution Date: April 28, 2016
• Issuing Organization: The General Court
• Decision Number: T-52/15

(Common foreign and security policy - Restrictive measures against Iran with the aim of preventing nuclear proliferation - Freezing of funds - Support to the Government of Iran - Research and technology development in military or military-related fields - Rights of the defence - Right to effective judicial protection - Error of law and error of assessment - Right to property - Proportionality - Misuse of powers - Claim for damages)

In Case T-52/15,

Sharif University of Technology, established in Tehran (Iran), represented by M. Happold, Barrister,

applicant,

v

Council of the European Union, represented by V. Piessevaux and M. Bishop, acting as Agents,

defendant,

ACTION for, first, annulment of Council Decision 2014/776/CFSP of 7 November 2014 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2014 L 325, p. 19), in so far as it includes the applicant’s name 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), and of Council Implementing Regulation (EU) No 1202/2014 of 7 November 2014 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2014 L 325, p. 3), in so far as it includes the applicant’s name on the list in Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1) and, secondly, a claim for damages,

THE GENERAL COURT (Seventh Chamber),

composed of M. van der Woude (Rapporteur), President, I. Wiszniewska-Białecka and I. Ulloa Rubio, Judges,

Registrar: M. Junius, Administrator,

having regard to the written part of the procedure and further to the hearing on 3 December 2015,

gives the following

Judgment

Background to the dispute

1 The applicant, Sharif University of Technology, is an institution of higher education and research located in Tehran, Iran. Founded in 1966, it specialises in technology, engineering and the physical sciences.

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 On 9 June 2010 the United Nations Security Council (‘the Security Council’) adopted United Nations Security Council Resolution 1929 (2010) (‘UNSCR 1929’), which aimed to extend the scope of the restrictive measures imposed by UNSCR 1737 (2006), UNSCR 1747 (2007) and UNSCR 1803 (2008) and to introduce additional restrictive measures against the Islamic Republic of Iran.

4 On 17 June 2010, the European Council underlined its deepening concern about Iran’s nuclear programme and welcomed the adoption of UNSCR 1929. The European Council invited the Council of the European Union to adopt measures implementing those contained in UNSCR 1929 as well as accompanying measures, with a view to supporting the resolution of all outstanding concerns regarding the Islamic Republic of Iran’s development of sensitive technologies in support of its nuclear and missile programmes, through negotiation. Those measures were to focus on the areas of trade, the financial sector, the Iranian transport sector, key sectors in the oil and gas industry and additional designations, in particular for the Islamic Revolutionary Guards Corps (‘the IRGC’).

5 On 26 July 2010 the Council adopted Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), Annex II to which lists the persons and entities - other than those designated by the Security Council or by the Sanctions Committee created by UNSCR 1737 (2006) mentioned in Annex I - whose assets are to be frozen. Recital 22 of that decision refers to UNSCR 1929 and states that that resolution notes the potential connection between the revenues derived by Iran from its energy sector and the funding of its proliferation-sensitive nuclear activities.

6 On 23 January 2012 the Council adopted Decision 2012/35/CFSP amending Decision 2010/413 (OJ 2012 L 19, p. 22). Recital 8 of that decision reproduces, in essence, the content of recital 22 of Decision 2010/413 (see paragraph 5 above). Furthermore, according to recital 13 of Decision 2012/35, the restrictions on admission and the freezing of funds and economic resources should be applied to additional persons and entities providing support to the Government of Iran allowing it to pursue proliferation-sensitive nuclear activities or the development of nuclear weapon delivery systems, in particular persons and entities providing financial, logistical or material support to the Government of Iran.

7 Article 1(7)(a)(ii) of Decision 2012/35 added the following provision to Article 20(1) of Decision 2010/413:

‘(c) other persons and entities not covered by Annex I that provide support to the Government of Iran, and persons and entities associated with them, as listed in Annex II.’

8 Consequently, under the FEU Treaty, on 23 March 2012 the Council adopted Regulation (EU) No 267/2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1). In order to implement Article 1(7)(a)(ii) of Decision 2012/35, Article 23(2) of that regulation provides for the freezing of funds of persons, entities and bodies listed in Annex IX thereto, identified as:

‘...

(d) being other persons, entities or bodies that provide support, such as material, logistical or financial support, to the Government of Iran, and persons and entities associated with them;

…’

9 On 15 October 2012 the Council adopted Decision 2012/635/CFSP amending Decision 2010/413 (OJ 2012 L 282 p. 58). According to recital 6 of Decision 2012/635, it is appropriate to review the prohibition on the sale, supply or transfer to the Islamic Republic of Iran of additional dual-use goods and technology listed in Annex I to Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items (OJ 2009 L 134, p. 1), with a view to including items which might be relevant to industries controlled directly or indirectly by the IRGC or which might be relevant to Iran’s nuclear, military and ballistic missile programme, while taking into account the need to avoid unintended effects on the civilian population of Iran. Furthermore, recital 9 of Decision 2012/635 states that the sale, supply or transfer to the Islamic Republic of Iran of key naval equipment and technology for ship-building, maintenance or refit, should be prohibited. In addition, according to recital 16 of that decision, additional persons and entities should be included on the list of persons and entities subject to restrictive measures as set out in Annex II to Decision 2010/413, in particular Iranian State-owned entities engaged in the oil and gas sector, since they provide a substantial source of revenue for the Government of Iran.

10 Article 1(8)(a) of Decision 2012/635 amended Article 20(1)(c) of Decision 2010/413, which consequently provides that restrictive measures are to be imposed on:

‘(c) other persons and entities not covered by Annex I that provide support to the Government of Iran and entities owned or controlled by them or persons and entities associated with them, as listed in Annex II.’

11 On 21 December 2012, the Council adopted Regulation (EU) No 1263/2012 amending Regulation No 267/2012 (OJ 2012 L 356, p. 34). Article 1(11) of Regulation No 1263/2012 amended Article 23(2)(d) of Regulation No 267/2012, which thus provides for the freezing of funds of persons, entities and bodies listed in Annex IX, identified as:

‘(d) being other persons, entities or bodies that provide support, such as material, logistical or financial support, to the Government of Iran and entities owned or controlled by them, or persons and entities associated with them.’

12 The applicant’s name was included for the first time on the lists in Table I of Annex II to Decision 2010/413 by Decision 2012/829/CFSP of 21 December 2012 amending Decision 2010/413 (OJ 2012 L 356, p. 71), and the lists in Table I of Annex IX to Regulation No 267/2012 by Implementing Regulation (EU) No 1264/2012 of 21 December 2012 implementing Regulation No 267/2012 (OJ 2012 L 356, p. 55).

13 That listing was based on the following grounds:

‘Sharif University of Technology (SUT) is assisting designated entities to violate the provisions of UN and EU sanctions on Iran and is providing support to Iran’s proliferation sensitive nuclear activities. As of late 2011 SUT had provided laboratories for use by UN-designated Iranian nuclear entity Kalaye Electric Company (KEC) and EU-designated Iran Centrifuge Technology Company (TESA).’

14 By judgment of 3 July 2014 in Sharif University of Technology v Council (T-181/13, EU:T:2014:607), the General Court annulled Decision 2012/829 and Regulation No 1264/2012 in so far as they concern the applicant.

15 By letter of 4 September 2014, the Council informed the applicant of its intention to re-list it on the basis of new grounds and invited it to submit its observations before 15 September 2014. In that letter, the Council expressed the view that the applicant provided support to the Government of Iran by means of cooperation agreements concluded with Iranian governmental organisations designated by the United Nations and the European Union. The Council enclosed with that letter the documents contained in its file on which that re-listing was based.

16 By letter of 15 September 2014, the applicant requested the Council to reconsider its decision.

17 On 7 November 2014 the Council adopted Decision 2014/776/CFSP amending Decision 2010/413 (OJ 2014 L 325 p. 19). By that decision, the applicant’s name was once again included in Table I of...