Judgments nº T-160/13 of The General Court, June 02, 2016

• Resolution Date: June 02, 2016
• Issuing Organization: The General Court
• Decision Number: T-160/13

(Common foreign and security policy - Restrictive measures against Iran - Restrictions on transfers of funds involving Iranian financial institutions - Jurisdiction of the General Court - Action for annulment - Regulatory act not entailing implementing measures - Whether directly concerned - Interest in bringing proceedings - Admissibility - Proportionality - Obligation to state reasons - Legal safeguards as referred to in Article 215(3) TFEU - Legal certainty - Non-arbitrariness - Breach of fundamental rights)

In Case T-160/13,

Bank Mellat, established in Tehran (Iran), represented initially by S. Zaiwalla, P. Reddy, F. Zaiwalla, Z. Burbeza, A. Meskarian, Solicitors, D. Wyatt QC, R. Blakeley and G. Beck, Barristers, and subsequently by S. Zaiwalla, P. Reddy, Z. Burbeza, A. Meskarian, D. Wyatt QC, R. Blakeley and G. Beck,

applicant,

v

Council of the European Union, represented by M. Bishop and I. Rodios, acting as Agents,

defendant,

supported by

European Commission, represented by D. Gauci and M. Konstantinidis, acting as Agents,

and by

United Kingdom of Great Britain and Northern Ireland, represented initially by S. Behzadi-Spencer, L. Christie and C. Brodie, and subsequently by C. Brodie and V. Kaye, acting as Agents, and by S. Lee, Barrister,

interveners,

APPLICATION for annulment of Article 1(15) of Council Regulation (EU) No 1263/2012 of 21 December 2012 amending Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 356, p. 34), or annulment of that provision in so far as it does not provide for an exception that applies in the applicant’s case, and for a declaration that Article 1(6) of Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 282, p. 58) is inapplicable,

THE GENERAL COURT (First Chamber),

composed of H. Kanninen, President, I. Pelikánová (Rapporteur) and E. Buttigieg, Judges,

Registrar: C. Heeren, Administrator,

having regard to the written part of the procedure and further to the hearing on 7 July 2015,

gives the following

Judgment

Background to the dispute

1 The applicant, Bank Mellat, is an Iranian commercial bank.

2 This 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’).

3 On 26 July 2010, the applicant’s name was placed on the lists of entities engaged in Iranian nuclear proliferation set out 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 Annex V to Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1).

4 Regulation No 423/2007 was repealed by Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran (OJ 2010 L 281, p. 1) and the applicant’s name was included in Annex VIII to the latter regulation. Regulation No 961/2010, in turn, was repealed by Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran (OJ 2012 L 88, p. 1) and the applicant’s name was included in Annex IX to the latter regulation.

5 The existing restrictive measures against Iran were amended and new restrictive measures against that country were adopted by Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413 (OJ 2012 L 282, p. 58) and by Council Regulation (EU) No 1263/2012 of 21 December 2012 amending Regulation No 267/2012 (OJ 2012 L 356, p. 34; ‘the contested regulation’). In particular, Article 1(6) of Decision 2012/635 amended Article 10 of Decision 2010/413, while Article 1(15) of the contested regulation amended Article 30 of Regulation No 267/2012 and added Articles 30a and 30b to that regulation.

6 Article 10 of Decision 2010/413, as amended by Article 1(6) of Decision 2012/635, provides, in particular, for restrictions on financial transactions between, on the one hand, financial institutions established in Iran and their branches or subsidiaries and, on the other, financial institutions in the European Union.

7 According to paragraph 2 of Article 10 of Decision 2010/413, as amended, only the following transactions may be carried out: (1) transactions regarding foodstuffs, healthcare, medical equipment, or for agricultural or humanitarian purposes (‘humanitarian transfers’); (2) transactions regarding personal remittances; (3) transactions regarding the execution of the exemptions provided for in Decision 2010/413; (4) transactions in connection with a specific trade contract not prohibited under that decision; (5) transactions regarding a diplomatic or consular mission or an international organisation; and (6) transactions regarding payment to satisfy claims against Iran, Iranian persons or entities, and transactions of a similar nature.

8 According to paragraph 3 of Article 10 of Decision 2010/413, as amended, transfers of funds to and from Iran using Iranian banks and financial institutions for the transactions referred to in paragraph 2 of that article are subject, depending on the circumstances and the subject matter of the transfer, and above various thresholds, to a prior notification obligation and to an obligation of prior authorisation by the competent national authority.

9 Articles 30 to 30b of Regulation No 267/2012, as amended by Article 1(15) of the contested regulation, essentially reproduce those restrictions and those notification and authorisation obligations.

10 Thus, Article 30 of Regulation No 267/2012, as amended, provides for restrictions on financial transactions between, on the one hand, credit and financial institutions and bureaux de change domiciled in Iran and their branches or subsidiaries and credit and financial institutions and bureaux de change that are controlled by persons, entities or bodies domiciled in Iran, and, on the other, financial institutions in the European Union.

11 In particular, according to Article 30(2) of Regulation No 267/2012, as amended, only the following may be carried out: (1) humanitarian transfers; (2) transfers regarding personal remittances; (3) transfers in connection with a specific trade contract provided that such transfer is not prohibited under Regulation No 267/2012; (4) transfers regarding diplomatic missions or consular posts or international organisations; (5) transfers regarding payment to satisfy claims by or against an Iranian person, entity or body, or transfers of similar nature; and (6) transfers necessary for the execution of the obligations arising from contracts referred to in Article 12(1)(b) of Regulation No 267/2012.

12 According to Article 30(3), (4) and (5) of Regulation No 267/2012, as amended, transfers of funds which may be authorised under paragraph 2 of that article are subject, depending on the circumstances and their subject matter, and above various thresholds, to a prior notification obligation and to an obligation of prior authorisation by the competent national authority.

13 Article 30a of Regulation No 267/2012 provides, inter alia, for certain restrictions on transfers of funds not covered by Article 30 of that regulation between, on the one hand, Iranian persons, entities or bodies and, on the other, EU nationals.

14 According to Article 30b(1) of Regulation No 267/2012, the restrictions laid down in Articles 30 and 30a of that regulation are not to apply where an authorisation has been granted in accordance with Articles 24, 25, 26, 27, 28 or 28a of that regulation.

15 According to Article 30b(3) of Regulation No 267/2012, for the purposes of Article 30(3)(b) and 30(3)(c) and Article 30a(1)(c) of that regulation, the competent authorities are to grant the authorisation, under such terms and conditions as they deem appropriate, unless they have reasonable grounds to determine that the transfer of funds for which the authorisation is requested could be in breach of any of the prohibitions or obligations in Regulation No 267/2012.

16 By judgment of 29 January 2013 in Bank Mellat v Council (T-496/10, ECR, EU:T:2013:39), the Court annulled the applicant’s entry on the lists in Annex II to Decision 2010/413, Annex V to Regulation No 423/2007, Annex VIII to Regulation No 961/2010 and Annex IX to Regulation No 267/2012. The Court found, in particular, that the circumstances relied on by the Council of the European Union as against the applicant did not establish that the latter had supported nuclear proliferation. By judgment of 18 February 2016 in Council v Bank Mellat (C-176/13 P, ECR, EU:C:2016:96), the Court of Justice dismissed the Council’s appeal against the judgment in Bank Mellat v Council (EU:T:2013:39).

Procedure and forms of order sought

17 By application lodged at the Court Registry on 15 March 2013, the applicant brought the present action, in which it claims that the Court should:

- annul Article 1(15) of the contested regulation;

- annul Article 1(15) of the contested regulation in so far as it does not provide for an exception that applies in the applicant’s case;

- declare that Article 1(6) of Decision 2012/635 is inapplicable to the applicant;

- order the Council to pay the costs;

18 In its defence, lodged at the Court Registry on 27 June 2013, the Council contends that the Court should:

- dismiss the action;

- order the applicant to pay the costs.

19 By documents lodged at the Court Registry on 24 June and 10 July 2013, the European Commission and the United Kingdom of Great Britain and Northern Ireland applied for leave to intervene in the present proceedings in support of the Council. By orders of 9 September 2013, the President of the Fourth Chamber of the General Court granted leave to intervene.

20 The Commission and the United Kingdom contend that the...