Key facts of the case:
Appeal — Common foreign and security policy — Restrictive measures against the Islamic Republic of Iran — Freezing of funds and economic resources — Annulment of a listing by the General Court — Re-listing — Reasons for the listing relating to financial support to the Government of Iran and the procurement of prohibited goods and technologies — Scope — Financing of oil and gas projects — Evidence dating from before the first listing — Facts known before the first listing — Article 266 TFEU — Res judicata — Scope — Effective judicial protection.
Outcome of the case:
On those grounds, the Court (Fourth Chamber) hereby:
22) By application lodged at the Registry of the General Court on 18 June 2015, the appellant brought an action for annulment of the contested acts, relying on seven pleas in law: (i) infringement of Article 266 TFEU; (ii) abuse of process, and breach of the principle of res judicata and of the principle of legal certainty and the finality of judicial decisions; (iii) breach of the principle of effectiveness and of the right to effective judicial protection, and infringement of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’); (iv) misuse of powers and breach of the principle of sound administration; (v) infringement of the appellant’s fundamental rights, notably of its rights to property and respect for its reputation, and breach of the principle of proportionality; (vi) infringement of the obligation to state reasons, and (vii) a manifest error of assessment.
39) The effectiveness of the judicial review guaranteed by Article 47 of the Charter requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include a person’s name on the list of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails, in this instance, a verification of the factual allegations in the summary of reasons underpinning the contested acts, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support those acts, is substantiated (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119; of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 42; and of 18 February 2016, Council v Bank Mellat, C‑176/13 P, EU:C:2016:96, paragraph 109). Moreover, it is for the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 121, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 66).
63) By its fourth ground of appeal, the appellant claims that the General Court erred in law in holding that the Council could adopt a decision to reinstate a name on the lists at issue on the basis of reasons which refer to historic conduct, and not to recent or recently discovered conduct, where those reasons could and should have been relied on in respect of its first listing. When a person or entity is reinstated on the lists of persons and entities under restrictive measures, the Council cannot just amend the reasons used as the basis for its initial listing. The General Court was thus wrong in holding, particularly in paragraphs 31, 32, 36 to 40, 45, 47 and 145 of the judgment under appeal, that the Council had not infringed Article 266 TFEU and the principles of res judicata, legal certainty and the finality of judicial decisions, but also the right to effective judicial protection and the principle of effectiveness, the rights conferred by Article 47 of the Charter and Articles 6 and 13 of the ECHR, and its rights to sound administration.
64) The appellant adds that its reinstatement on the lists at issue, in breach of Article 266 TFEU, is tantamount to replacing the initial listing, contrary to what the General Court held. In addition, the General Court should have concluded that the Council’s conduct had circumvented and deprived of any purpose the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, EU:T:2015:43), rendering the application for annulment ineffective and futile and amounting to an abuse of process. The appellant claims further that, in breach of Article 41 of the Charter, its situation has not been dealt with impartially, fairly, or within a reasonable time, given that the re-listing procedure may not be separated from the listings which preceded it. Finally, the appellant claims that, since those rights and principles have not been respected, its re-listing infringes its fundamental rights, in particular its right to property and the principle of proportionality.
79) With regard to the principle of effective judicial protection, it is a general principle of law which is now reaffirmed by Article 47 of the Charter. That article secures in EU law the protection afforded by Article 6(1) and Article 13 of the ECHR (judgment of 16 May 2017, Berlioz Investment Fund,C‑682/15, EU:C:2017:373, paragraph 54 and the case-law cited). The first paragraph of Article 47 of the Charter requires everyone whose rights and freedoms guaranteed by EU law are violated to have the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article.
85) Furthermore, the appellant did not produce any evidence capable of demonstrating an infringement of the principle of sound administration, laid down in Article 41 of the Charter (see, to that effect, judgments of 8 May 2014, N., C‑604/12, EU:C:2014:302, paragraph 49, and of 17 July 2014, YS and Others, C‑141/12 and C‑372/12, EU:C:2014:2081, paragraph 68). The right of every person to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions of the European Union when any individual measure that would affect him or her adversely is taken, which stems from that principle, is not intended to ensure that the Council will not adopt new restrictive measures in the future, based on different reasons.