Judgments nº T-14/14 of The General Court, February 17, 2017

• Resolution Date: February 17, 2017
• Issuing Organization: The General Court
• Decision Number: T-14/14

(Common foreign and security policy - Restrictive measures taken against Iran with the aim of preventing nuclear proliferation - Freezing of funds - Plea of illegality - Legal basis - Misuse of powers - Rights of the defence - Legitimate expectations - Legal certainty - Ne bis in idem - Res judicata - Proportionality - Manifest error of assessment - Fundamental rights)

In Joined Cases T-14/14 and T-87/14,

Islamic Republic of Iran Shipping Lines, established in Tehran (Iran), and the other applicants whose names are listed in the Annex, represented by F. Randolph QC, P. Pantelis, Solicitor, M. Lester, Barrister, and M. Taher, Solicitor,

applicants,

v

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

defendant,

supported by

European Commission, represented by D. Gauci and T. Scharf, acting as Agents,

intervener in Case T-87/14

APPLICATION, in Case T-14/14, pursuant to Article 263 TFEU, for annulment of Council Decision 2013/497/CFSP of 10 October 2013 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2013 L 272, p. 46), and of Council Regulation (EU) No 971/2013 of 10 October 2013 amending Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2013 L 272, p. 1), in so far as those acts concern the applicants; and, in Case T-87/14, (i) pursuant to Article 277 TFEU, for a declaration that Decision 2013/497 and Regulation No 971/2013 are inapplicable, and (ii) pursuant to Article 263 TFEU, for annulment of Council Decision 2013/685/CFSP of 26 November 2013 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2013 L 316, p. 46), and of Council Implementing Regulation (EU) No 1203/2013 of 26 November 2013 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2013 L 316, p. 1), in so far as those acts concern the applicants,

THE GENERAL COURT (First Chamber),

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

Registrar: L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 12 July 2016,

gives the following

Judgment

Background to the dispute

1 The applicants, Islamic Republic of Iran Shipping Lines (‘IRISL’), which is the Islamic Republic of Iran’s shipping company, and 10 other entities whose names are listed in the Annex, are Iranian companies, except for IRISL Europe GmbH, which is a German company. They all operate in the shipping sector.

2 The present cases have 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 applicants’ names were 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).

4 Consequently, the applicants’ names were entered on the list in Annex V to Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1), 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).

5 IRISL’s listing in Annex II to Decision 2010/413 was based on the following grounds, which are essentially the same as those stated in Annex V to Regulation No 423/2007:

‘IRISL has been involved in the shipment of military-related cargo, including proscribed cargo from Iran. Three such incidents involved clear violations that were reported to the [United Nations] Security Council Iran Sanctions Committee. IRISL’s connection to proliferation was such that the [United Nations Security Council] called on states to conduct inspections of IRISL vessels, provided there are reasonable grounds to believe that the vessel is transporting proscribed goods, in [United Nations Security Council Resolutions] 1803 and 1929.’

6 The other applicants were listed because they were companies that were owned or controlled by IRISL or acting on its behalf.

7 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 Regulation No 961/2010 was subsequently repealed by Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran (OJ 2012 L 88, p. 1). The applicants’ names were included on the list in Annex IX to Regulation No 267/2012 and the grounds for their listing were not amended.

8 By application lodged at the General Court Registry on 8 October 2010, the applicants brought an action for annulment of the listing of their names in Annex II to Decision 2010/413 and in Annex V to Regulation No 423/2007. During the proceedings, they modified their claims to request, in particular, annulment of the listing of their names in Annex IX to Regulation No 267/2012.

9 By judgment of 16 September 2013, Islamic Republic of Iran Shipping Lines and Others v Council (T-489/10, ‘IRISL’, EU:T:2013:453), the General Court upheld the action brought by the applicants.

10 First, the General Court held that the Council of the European Union had not stated to the requisite legal standard the reasons for its assertion that IRISL had, by the actions of which it was accused, assisted a listed person, entity or body in infringing the provisions of the relevant EU legislation and the United Nations Security Council (‘Security Council’) resolutions applicable, as referred to in Article 20(1)(b) of Decision 2010/413, Article 16(2)(b) of Regulation No 961/2010 and Article 23(2)(b) of Regulation No 267/2012. Secondly, according to the General Court, the Council had not established that, by having transported - on three occasions - military material in breach of the prohibition laid down in paragraph 5 of Security Council Resolution 1747 (2007), IRISL had provided support for nuclear proliferation within the meaning of Article 20(1)(b) of Decision 2010/413, Article 7(2) of Regulation No 423/2007, Article 16(2)(a) of Regulation No 961/2010 and Article 23(2)(a) of Regulation No 267/2012. Thirdly, the General Court held that, even if the applicants other than IRISL were in fact owned or controlled by IRISL or acted on its behalf, that did not justify the adoption and maintenance of the restrictive measures to which they were subject, since IRISL had not been properly identified as providing support for nuclear proliferation.

11 By Council Decision 2013/497/CFSP of 10 October 2013 amending Decision 2010/413 (OJ 2013 L 272, p. 46), the Council replaced Article 20(1)(b) of Decision 2010/413 with the following text, which provides for the funds of the following persons and entities to be frozen:

‘persons and entities not covered by Annex I that are engaged in, directly associated with, or providing support for, Iran’s proliferation-sensitive nuclear activities or for the development of nuclear weapon delivery systems, including through the involvement in procurement of the prohibited items, goods, equipment, materials and technology, or persons or entities acting on their behalf or at their direction, or entities owned or controlled by them, including through illicit means, or persons and entities that have evaded or violated, or assisted designated persons or entities in evading or violating, the provisions of [Security Council Resolutions] 1737 (2006), ... 1747 (2007), ... 1803 (2008) and ... 1929 (2010) or of this Decision, as well as other members and entities of [the Islamic Revolutionary Guards Corps (IRGC)] and IRISL and entities owned or controlled by them or persons and entities acting on their behalf or persons and entities providing insurance or other essential services to IRGC and IRISL, or to entities owned or controlled by them or acting on their behalf, as listed in Annex II’.

12 Consequently, by Council Regulation (EU) No 971/2013 of 10 October 2013 amending Regulation No 267/2012 (OJ 2013 L 272, p. 1), the Council replaced Article 23(2)(b) and (e) of Regulation No 267/2012 with the following text, which provides for the freezing of funds of the persons, entities and bodies who have been identified as:

‘(b) being a natural or legal person, entity or body that has evaded or violated, or assisted a listed person, entity or body to evade or violate, the provisions of this Regulation, Council Decision [2010/413] or [Security Council Resolutions] 1737 (2006), ... 1747 (2007), ... 1803 (2008) and ... 1929 (2010);

…

(e) being a legal person, entity or body owned or controlled by [IRISL], or a natural or legal person, entity or body acting on its behalf, or a natural or legal person, entity or body providing insurance or other essential services to IRISL, or to entities owned or controlled by it or acting on its behalf.’

13 By letter of 22 October 2013, the Council informed IRISL that it considered that IRISL had been involved in the shipment of arms-related materiel from Iran, in violation of paragraph 5 of Security Council Resolution 1747 (2007), and that it therefore met the criterion laid down in Article 20(1)(b) of Decision 2010/413 and Article 23(2)(b) of Regulation No 267/2012 relating to persons and entities that have evaded or violated certain Security Council resolutions. It therefore informed IRISL of its intention to include its name 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 (‘the lists at issue’).

14 By letters dated either 22 or 30 October 2013, the Council informed each of the other applicants that, for different reasons, it considered that they met the criteria laid down in Article 20(1)(b) of Decision 2010/413 and Article 23(2)(e) of Regulation No 267/2012...