Judgments nº T-559/15 of Tribunal General de la Unión Europea, December 13, 2018

• Resolution Date: December 13, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-559/15

(Non-contractual liability - Common foreign and security policy - Restrictive measures against Iran - Freezing of funds - Inclusion and maintenance of the applicant’s name on the lists of persons and entities subject to restrictive measures - Non-material damage)

In Case T-559/15,

Post Bank Iran, established in Tehran (Iran), represented by D. Luff, lawyer,

applicant,

v

Council of the European Union, represented by B. Driessen and M. Bishop, acting as Agents,

defendant,

supported by

European Commission, represented by F. Ronkes Agerbeek and R. Tricot, acting as Agents,

intervener,

APPLICATION pursuant to Article 268 TFEU for compensation for the damage allegedly suffered by the applicant following the adoption of Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 281, p. 81), of 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), of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 319, p. 71), of Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11), and of 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), by which the applicant’s name was included and maintained on the lists of persons and entities subject to restrictive measures,

THE GENERAL COURT (First Chamber, Extended Composition),

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

Registrar: N. Schall, Administrator,

having regard to the written part of the procedure and further to the hearing on 20 March 2018,

gives the following

Judgment

Background to the dispute

1 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 (‘nuclear proliferation’).

2 The applicant, Post Bank Iran, is a company incorporated under Iranian law which provides post office banking services.

3 On 9 June 2010, the United Nations Security Council adopted Resolution 1929 (2010), which widened the scope of the restrictive measures imposed by earlier Resolutions 1737 (2006) of 27 December 2006, 1747 (2007) of 24 March 2007, and 1803 (2008) of 3 March 2008 and introduced additional restrictive measures against the Islamic Republic of Iran.

4 By 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) the applicant’s name was included on the list in Annex II to that decision.

5 Consequently, the applicant’s name was included 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).

6 The inclusion of the applicant’s name on the list referred to in paragraph 5 above took effect on the date of publication of 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) in the Official Journal of the European Union, namely on 27 July 2010. The result was the freezing of the applicant’s funds and economic resources (‘the restrictive measures’).

7 The inclusion of the applicant in the lists cited in paragraphs 4 and 5 above was based on the following grounds:

‘[The applicant] has evolved from being an Iranian domestic bank to a bank which facilitates Iran’s international trade. Acts on behalf of Bank Sepah (designated under [Security Council Resolution] 1747) carrying out Bank Sepah’s transactions and hiding Bank Sepah’s connection with transactions in order to circumvent sanctions. In 2009 [the applicant] facilitated business on behalf of Bank Sepah between Iran’s defence industries and overseas beneficiaries Has facilitated business with front company for DPRK’s Tranchon Commercial Bank, known for facilitating proliferation-related business between Iran and the DPRK.’

8 By letter dated 29 July 2010 the Council of the European Union informed the applicant that its name had been included on the lists cited in paragraphs 4 and 5 above. A copy of those acts was enclosed with the letter.

9 By letter of 12 September 2010, the applicant asked the Council to review its inclusion on the lists at issue, in the light of information sent to the Council by the applicant.

10 By Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L 281, p. 81), the Council, after reviewing the applicant’s situation, maintained the applicant’s listing in Annex II to Decision 2010/413, with effect from that date, on the following grounds:

‘[The applicant] has evolved from being an Iranian domestic bank to a bank which facilitates Iran’s international trade. Acts on behalf of Bank Sepah (designated under [Security Council Resolution] 1747) carrying out Bank Sepah’s transactions and hiding Bank Sepah’s connection with transactions in order to circumvent sanctions. In 2009 [the applicant] facilitated business on behalf of Bank Sepah between Iran’s defence industries and overseas beneficiaries Has facilitated business with front company for DPRK’s Tranchon Commercial Bank, known for facilitating proliferation-related business between Iran and the DPRK.’

11 When Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation No 423/2007 (OJ 2010 L 281, p. 1) was adopted, the applicant’s name was included on the list in Annex VIII to that regulation with effect from 27 October 2010.

12 By letter of 28 October 2010, received by the applicant on 29 October 2010, the Council informed the applicant that, following a reconsideration of its situation in the light of the comments in the letter of 12 September 2010, it would continue to be subject to restrictive measures.

13 By letter of 28 December 2010, the applicant denied the allegations made against it by the Council. In order to exercise its rights of defence, it requested access to the file.

14 By application lodged at the Court Registry on 7 January 2011, the applicant brought an action seeking, in essence, annulment of the lists cited in paragraphs 4 and 5 above, in so far as they concerned the applicant. That action was registered as Case T-13/11.

15 By letter of 22 February 2011, the Council provided the applicant with the extracts concerning it from the listing proposals submitted by Member States, as contained in the Council’s cover notes under references 13413/10 EXT 5, 13414/10 EXT 5 and 6723/11.

16 By letter of 29 July 2011 the applicant again contested the veracity of the matters of which it was accused by the Council.

17 By Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413 (OJ 2011 L 319, p. 71) and Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11), the Council, after reviewing the applicant’s situation, maintained the applicant’s listing in Annex II to Decision 2010/413, as amended by Decision 2010/644, and in Annex VIII to Regulation No 961/2010, with effect from 1 and 2 December 2011, respectively.

18 By letter of 5 December 2011 the Council informed the applicant that it was to continue to be subject to restrictive measures.

19 By letter of 13 January 2012 the applicant again requested access to the file.

20 Council Decision 2012/35/CFSP of 23 January 2012 amending Decision 2010/413 (OJ 2012 L 19, p. 22) came into force on the day of its adoption. Article 1(7) of Decision 2012/35 amended, as from that date, Article 20 of Decision 2010/413, notably by introducing a new criterion of the provision of support, including financial support, to the Iranian government.

21 By letter of 21 February 2012 the Council sent to the applicant documents relating to the ‘decision on 1 December 2011 to maintain restrictive measures in force against [the applicant]’.

22 When 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) was adopted, that same criterion of the provision of support, including financial support, to the Iranian government was introduced in Article 23(2)(d) of that regulation. Moreover, the applicant was included, on the same grounds as those already referred to in paragraph 10 above, in the list in Annex IX to Regulation No 267/2012 (together with the lists in Annex II to Decision 2010/413, as amended by Decision 2010/644, and in Annex VIII to Regulation No 961/2010, ‘the disputed lists’), with effect from 24 March 2012.

23 By a statement lodged at the Court Registry on 4 June 2012, the applicant amended the form of order sought in Case T-13/11 so as to seek, in essence, annulment of the disputed lists, in so far as they concerned the applicant.

24 By judgment of 6 September 2013, Post Bank Iran v Council (T-13/11, not published, EU:T:2013:402), the Court, inter alia, annulled the disputed lists, in so far as they concerned the applicant, on the ground that they were not substantiated by evidence. As no appeal was brought against that judgment, it became final and acquired the force of res judicata.

25 By Decision 2013/661/CFSP of 15 November 2013 amending Decision 2010/413 (OJ 2013 L 306, p. 18) and Implementing Regulation (EU) No 1154/2013 of 15 November 2013 implementing Regulation No 267/2012 (OJ 2013 L 306, p. 3), the Council maintained the restrictive measures against the applicant, on the basis of the new criterion of the provision of support, including...