Opinion of Advocate General Tanchev delivered on 11 April 2018.

• Jurisdiction: European Union
• Celex Number: 62016CC0600
• ECLI: ECLI:EU:C:2018:227
• Docket Number: C-600/16
• Date: 11 April 2018
• Procedure Type: Recurso de casación - infundado
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 11 April 2018(1)

Case C‑600/16 P

National Iranian Tanker Company

v

Council of the European Union

(Appeal — Common Foreign and Security Policy — Restrictive measures against the Islamic Republic of Iran with the aim of preventing nuclear proliferation — Freezing of funds — Action for annulment — Re-listing decision following annulment of initial listing decision by EU Courts on the merits — Article 266 TFEU — General principles of EU law — Fundamental rights — Right to an effective remedy — Article 47 of the Charter of Fundamental Rights of the European Union — Articles 6(1) and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms)

I. Introduction

1. In this case, the Court is again asked to rule on the compatibility with EU law of restrictive measures taken by the Council aimed at inducing the Islamic Republic of Iran (‘Iran’) to comply with its international obligations relating to its nuclear proliferation activities, but it features a novel issue. The restrictive measures in question concern a decision of the Council to re-list an entity, thus freezing its funds. This decision was taken not long after the initial listing decision was declared to be unlawful by the General Court, thereby obliging the Council pursuant to Article 266 TFEU ‘to take the necessary measures to comply’ with the judgment of the General Court. Thus, the novel issue is as follows: when the Council responds by re-listing that entity on the basis of the same designation criterion, and where the factual situation has not changed in substance, does this breach, among other principles of EU law, the entity’s right to an effective remedy with respect to the initial listing decision, as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (‘Charter’)?

2. That is the key issue that arises in the present appeal brought by National Iranian Tanker Company (‘NITC’) against the judgment of the General Court of the European Union of 14 September 2016, National Iranian Tanker Company v Council (T‑207/15, EU:T:2016:471, ‘the judgment in NITC II’), by which the General Court dismissed NITC’s action for annulment against certain measures which reinstated NITC on the EU list of persons and entities whose funds and economic resources were to be frozen in the context of restrictive measures taken against Iran to prevent nuclear proliferation (‘restrictive measures against Iran’).

3. By its first ground of appeal, NITC submits that the General Court erred in law in finding, at paragraphs 45 to 64 and 68 of the judgment in NITC II, that the Council’s re-listing decision did not breach the principles of res judicata, legal certainty, legitimate expectations and finality, and the right to an effective remedy guaranteed by Article 47 of the Charter.

4. At the heart of NITC’s arguments is the claim that so long as the Council has the unrestrained power to recast the legal characterisation of the same factual allegations to fulfil a designation criterion, in circumstances in which the General Court has ruled in a final and binding judgment that those factual allegations did not justify the first listing decision, and there has been no change in circumstances since the first listing decision, a party’s right to a real and effective remedy with respect to that first judgment is meaningless. This is so, NITC contends, because that party is forced to come back to court to re-litigate what are in substance the same factual and legal points, which is antithetical to the rule of law in the Union legal order.

5. The Council contests NITC’s arguments, relying primarily on the Kadi, (2)OMPI (3) and Interporc (4) cases and the discretion vested in it by Article 266 TFEU with respect to the permissible measures it may take once a declaration of nullity is issued by the EU Courts under Article 264 TFEU.

6. Consequently, as requested by the Court, this Opinion will focus on the first ground of appeal.

7. It is worth noting that this appeal is the first in a series of cases that are currently pending before the Court in which a claimant contends that the EU remedial structure, at least in the context of restrictive measures, merits re-interpretation in light of the right to an effective remedy and other principles of EU law. (5) Therefore, the present case offers an opportunity for the Court to develop its case-law, if this is necessary to ensure effective judicial protection for private parties in the European Union.

II. Background to the proceedings

8. NITC is an Iranian company specialised in the transport of crude oil and gas cargoes. It operates one of the largest fleets of oil tankers in the world. Oil tankers are ships designed to carry oil in bulk.

9. Following several resolutions establishing measures to induce Iran to comply with its international obligations relating to nuclear proliferation, on 9 June 2010, the United Nations Security Council (‘UNSC’) adopted Resolution 1929 (2010) (‘Resolution 1929’), which laid down stricter measures against Iran, ‘noting the potential connection between Iran’s revenues derived from its energy sector and the funding of Iran’s proliferation-sensitive nuclear activities’. (6) On 17 June 2010, the European Council invited the Council to adopt measures implementing Resolution 1929 and accompanying measures, which were to focus, inter alia, on key sectors in the oil and gas industry. (7)

10. On 26 July 2010, the Council adopted Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (‘Decision 2010/413’). (8) Annex II to that decision lists the persons and entities — other than those designated at the United Nations level — whose funds and economic resources are to be frozen. (9)

11. On 23 January 2012, the Council adopted Decision 2012/35/CFSP amending Decision 2010/413 (‘Decision 2012/35’), (10) with a view to strengthening the restrictive measures against Iran in response to its serious and deepening concerns over the nature of Iran’s nuclear programme. (11) Recital 13 of that decision states that fund-freezing measures ‘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’. (12)

12. Decision 2012/35 thereby added the following point to Article 20(1) of Decision 2010/413, providing for the freezing of funds belonging to the following persons and entities:

‘(c) other persons and entities not covered by Annex I that provide supportto the Government of Iran, and persons and entities associated with them, as listed in Annex II’. (13)

13. On 23 March 2012, the Council adopted Regulation (EU) No 267/2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (‘Regulation No 267/2012’). (14) For the purposes of implementing Article 20(1)(c) of Decision 2010/413 (as amended by Decision 2012/35 (15)), Article 23(2) of Regulation No 267/2012 provides for the freezing of funds and economic resources of the 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’. (16)

A. The first listing

14. On 15 October 2012, the Council adopted Decision 2012/635/CFSP amending Decision 2010/413 (‘Decision 2012/635’). (17) The Council considered it necessary to adopt additional restrictive measures against Iran in view of its failure to engage seriously in negotiations to address international concerns about its nuclear programme. (18) Recital 16 of that decision states that ‘in particular Iranian State-owned entities engaged in the oil and gas sector’ are to be included in the list of persons and entities subject to restrictive measures set out in Annex II to Decision 2010/413, ‘since they provide a substantial source of revenue for the Iranian Government’.

15. To that end, Article 1(8)(a) of Decision 2012/635 replaced Article 20(1)(c) of Decision 2010/413, so as to provide that ‘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’ would be subject to restrictive measures. Article 2 of Decision 2012/635 listed NITC in Annex II to Decision 2010/413, containing the list of persons and entities, inter alia, providing support to the Government of Iran. (19)

16. Also on 15 October 2012, the Council adopted Regulation (EU) No 945/2012 implementing Regulation No 267/2012 (‘Implementing Regulation No 945/2012’). (20) In view of the situation in Iran and in accordance with Decision 2012/635, the Council considered that additional persons and entities should be subject to restrictive measures set out in Annex IX to Regulation No 267/2012. (21) Article 1 of that implementing regulation listed NITC in Annex IX to Regulation No 267/2012, containing the list of persons and entities, inter alia, providing support to the Government of Iran. (22)

17. NITC was listed in Decision 2012/635 and Implementing Regulation No 945/2012 on the basis of the designation criterion set forth in Article 20(1)(c) of Decision 2012/413 and Article 23(2)(d) of Regulation No 267/2012 (‘the first listing’) for the following reasons:

‘Effectively controlled by the Government of Iran. Provides financial support to the Government of Iran through its shareholders which maintain ties with the Government.’

18. On 16 October 2012, NITC was notified by the Council of the first listing. An exchange of correspondence between NITC and...