National Iranian Tanker Company v Council (Judgment) [2016] EUECJ T-207/15 (14 September 2016)

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(Common foreign and security policy — Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Res judicata — Right to an effective remedy — Error of assessment — Rights of the defence — Right to property — Proportionality)

National Iranian Tanker Company, established in Tehran (Iran), represented by T. de la Mare QC, M. Lester, J. Pobjoy, Barristers, R. Chandrasekera, S. Ashley and C. Murphy, Solicitors,

Council of the European Union, represented initially by N. Rouam and M. Bishop, and subsequently by M. Bishop and A. Vitro, acting as Agents,

APPLICATION under Article 263 TFEU for annulment of Council Decision (CFSP) 2015/236 of 12 February 2015 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2015 L 39, p. 18) and Council Implementing Regulation (EU) No 2015/230 of 12 February 2015 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2015 L 39, p. 3), in so far as those measures concern the applicant, or, in the alternative, application under Article 277 TFEU for a declaration of inapplicability of Article 20(1)(c) of 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 of Article 23(2)(d) of Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1), in so far as those provisions apply to the applicant,

composed of M. van der Woude (Rapporteur), President, I. Wiszniewska-Białecka and I. Ulloa Rubio, Judges,

having regard to the written part of the procedure and further to the hearing on 10 March 2016,

1 The applicant, National Iranian Tanker Company, is an Iranian company specialised in the transport of crude oil and gas cargoes. It operates one of the largest fleets in the world of double-hulled tankers.

2 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 put an end to proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems.

3 On 9 June 2010, the United Nations Security Council adopted Resolution 1929 (2010) (‘Resolution 1929’), which was intended to widen the scope of the restrictive measures imposed by earlier resolutions and to introduce additional restrictive measures against the Islamic Republic of Iran.

4 On 17 June 2010, the European Council invited the Council of the European Union to adopt measures implementing those contained in Resolution 1929 as well as accompanying measures, with a view to supporting the resolution of all outstanding concerns regarding the Islamic Republic of Iran’s development of sensitive technologies in support of its nuclear and missile programmes, through negotiation. Those measures were to focus, in particular, on the areas of trade, the financial sector, the Iranian transport sector and key sectors in the oil and gas industry.

5 On 26 July 2010, the Council adopted Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), Annexes I and II to which list the persons and entities whose assets are to be frozen. Recital 22 in the preamble to that decision refers to Resolution 1929 and states that that resolution notes the potential connection between the revenues derived by the Islamic Republic of Iran from its energy sector and the funding of its proliferation-sensitive nuclear activities.

6 On 23 January 2012, the Council adopted Decision 2012/35/CFSP amending Decision 2010/413 (OJ 2012 L 19, p. 22). In the light of the potential connection between the energy sector and the development of the Islamic Republic of Iran’s nuclear programme, Decision 2012/35 inserted, inter alia, Article 3a into Decision 2010/413; that article prohibits the import, purchase or transport of Iranian crude oil and petroleum products.

7 In addition, recital 13 of that decision states that fund-freezing measures should be applied to persons and entities providing support to the Government of Iran allowing it to pursue nuclear proliferation activities, in particular persons and entities providing financial, logistical or material support to that government. Decision 2012/35 accordingly 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 support to the Government of Iran, and persons and entities associated with them, as listed in Annex II.’

8 Under the FEU Treaty, on 23 March 2012, the Council adopted Regulation (EU) No 267/2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1). Article 11 of that regulation implements Article 3a of Decision 2010/413 and thus provides for similar restrictions to those laid down by that provision concerning the import, purchase or transport of Iranian crude oil and petroleum products.

9 For the purposes of implementing Article 20(1)(c) of Decision 2010/413, Article 23(2) of Regulation No 267/2012 provides for the freezing of funds 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, or persons and entities associated with them.’

10 In addition, Article 35 of Regulation No 267/2012 prohibits the provision of insurance or re-insurance to Iranian persons or entities.

11 On 15 October 2012, the Council included the applicant in the lists of persons and entities subject to restrictive measures (‘the lists at issue’).

12 First, the Council adopted Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413 (OJ 2012 L 282, p. 58). Recital 16 in the preamble to Decision 2012/635 stated that, in particular, Iranian State-owned entities engaged in the oil and gas sector were to be subject to restrictive measures, since they provided a substantial source of revenue for the Government of Iran. Consequently, Article 1(8)(a) of Decision 2012/635 amended Article 20(1)(c) of Decision 2010/413 such 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 included the applicant in the table in Annex II to Decision 2010/413 containing the list of ‘[p]ersons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of Iran’.

13 Second, the Council adopted Implementing Regulation (EU) No 945/2012 of 15 October 2012 implementing Regulation No 267/2012 (OJ 2012 L 282, p. 16). Article 1 of Implementing Regulation No 945/2012 included the applicant in the table in Annex IX to Regulation No 267/2012 containing the list of ‘[p]ersons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of Iran’.

14 The applicant’s inclusion in the lists at issue by Decision 2012/635 and Implementing Regulation No 945/2012 (‘the first listing’) was justified on the following grounds: ‘Effectively controlled by the Government of Iran. Provides financial support to the Government of Iran through its shareholders which maintain ties with the Government’.

15 Decision 2012/635 and Implementing Regulation No 945/2012 were sent to the applicant by letter of 16 October 2012.

16 On 21 December 2012, the Council adopted Regulation (EU) No 1263/2012 amending Regulation No 267/2012 (OJ 2012 L 356, p. 34). Regulation No 1263/2012 inserted, inter alia, Articles 10a, 10b and 37b into Regulation No 267/2012. Articles 10a and 10b prohibit the sale, supply, transfer or export of key naval equipment or technology to an Iranian person or entity and the provision of technical assistance or brokering services related to such key equipment and technology to such a person or entity, respectively. Article 37b prohibits, in addition, the making available of vessels designed for the transport or storage of oil and petrochemical products to an Iranian person or entity.

17 On 27 December 2012, the applicant brought an action before the General Court seeking annulment of Decision 2012/635 and Implementing Regulation No 945/2012, in so far as they concerned the applicant.

18 On 24 November 2013, an agreement was reached at Geneva (Switzerland) by the Federal Republic of Germany, the French Republic, the United Kingdom of Great Britain and Northern Ireland, the People’s Republic of China, the United States of America and the Russian Federation, supported by the High Representative of the European Union for Foreign Affairs and Security Policy, on the one hand, and the Islamic Republic of Iran, on the other, on a Joint Plan of Action (SN10179/13, ‘the Joint Plan of Action’), which sets out an approach towards reaching a long-term comprehensive solution to the Iranian nuclear issue.

19 As part of the implementation of the first step of the Joint Plan of Action, the Council adopted, on 20 January 2014, Decision 2014/21/CFSP amending Decision 2010/413 (OJ 2014 L 15, p. 22), and Regulation 2014/42/EU amending Regulation No 267/2012 (OJ 2014 L 15, p. 18). By those measures, the Council, in particular, suspended the prohibition on transporting oil originating in or exported from the Islamic Republic of Iran to any other country, laid down in Article 3a of Decision 2010/413 and Article 11 of Regulation No 267/2012, for a period of six months. The suspension of that prohibition was later extended by various successive measures of the Council.

20 In its judgment of 3 July 2014, National Iranian Tanker Company v Council (T‑565/12, ‘the judgment of 3 July 2014, NITC’, EU:T:2014:608), the Court upheld the claim that the Council had committed a manifest error of assessment in including the applicant in the lists at issue. In essence, the Court found that the Council’s file did not contain any evidence capable of supporting the claims that the applicant was controlled by the Government of Iran or provided financial support to the Government of Iran through its shareholders. Therefore, upholding the action, it annulled Decision 2012/635 and Implementing Regulation No 945/2012, in so far as those measures concerned the applicant.

21 As regards the temporal effects of the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608), the Court decided to maintain the effects of Decision 2012/635 and Implementing Regulation No 945/2012 as regards the applicant until the expiry of the period for bringing an appeal set out in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union or, if an appeal was brought within that period, until the date of dismissal of that appeal.

22 The Council did not appeal against the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608).

23 By letter of 23 October 2014, the Council informed the applicant that it intended to re-include it in the lists at issue. It set out the grounds justifying, in its view, that re-listing by referring to the supporting documents attached to that letter. It also asked the applicant to submit its observations by 5 November 2014.

24 By letter of 27 October 2014, the applicant informed the Council that no supporting documents had been attached to the letter of 23 October 2014 and it therefore requested that the Council provide it with the documents in question as well as with all the documents and information which had led the Council to envisage re-including it in the lists at issue. The applicant also requested that the Council grant it a period of four weeks from receipt of those documents to submit its observations.

25 The same day, the Council sent the applicant six emails containing the supporting documents mentioned in the letter of 23 October 2014. Those documents included information on the shareholder companies of the applicant and, in particular, on the composition of the boards of directors of those companies, an Iranian legislative text on social security and certain information published on the website of the National Iranian Oil Company (‘NIOC’) concerning the applicant’s oil transport activities.

26 By letter of 29 October 2014, the applicant requested that the Council confirm that no documents or information other than those provided by emails of 27 October 2014 were contained in the Council’s file or, if this were not the case, that it provide all other evidence contained in its file. It also asked the Council to identify the passages of each supporting document relied on by the Council to justify its re-listing.

27 Since the applicant’s request for an extension to the period prescribed for submitting its observations did not receive a reply, the applicant provided its preliminary observations to the Council by letter of 5 November 2014, stressing the fact that it had not had sufficient time or the necessary information on the grounds relied on against it to make effective observations. In that letter, the applicant also asked the Council to grant it a hearing.

28 By letter of 5 February 2015, the Council provided the applicant with a declassified extract from the proposal to re-include it in the lists at issue.

29 By email of 7 February 2015 and by letter of 9 February 2015, the applicant requested that the Council confirm that no decision would be taken on a possible re-listing before the applicant was granted a reasonable period within which to comment on the document enclosed with the letter of 5 February 2015.

30 On 12 February 2015, the Council adopted Decision (CFSP) 2015/236 amending Decision 2010/413 (OJ 2015 L 39, p. 18) and Implementing Regulation (EU) 2015/230 implementing Regulation No 267/2012 (OJ 2015 L 39, p. 3). By those measures (together, ‘the contested measures’), applicant was again included in the lists at issue.

‘The [applicant] provides financial support to the Government of Iran through its shareholders the Iranian State Retirement Fund, the Iranian Social Security Organization, and the Oil Industry Employees Retirement and Savings Fund, which are State-controlled entities. Moreover, [the applicant] is one of the largest operators of crude oil carriers in the world and one of the main transporters of Iranian crude oil. Accordingly, [the applicant] provides logistical support to the Government of Iran through the transport of Iranian oil.’

32 By letter of 16 February 2015, the Council informed the applicant that it had again been included in the lists at issue, and enclosed with that letter a copy of the contested measures.

33 By application lodged at the Court Registry on 24 April 2015, the applicant brought the present action.

34 By separate document lodged at the Court Registry on the same day, the applicant submitted an application for interim measures seeking the suspension of operation of the contested measures in so far as they concerned the applicant, until the Court had ruled on the action in the main proceedings. By order of 16 July 2015, National Iranian Tanker Company v Council (T‑207/15 R, EU:T:2015:535), the President of the General Court dismissed that application.

35 By document lodged at the Court Registry on 18 December 2015, the applicant requested that the case be given priority under Article 67(2) of the Rules of Procedure of the General Court, and requested that the present case be referred to an extended formation under Article 28 of those rules.

36 On 21 January 2016, the Court rejected the applicant’s request for priority treatment and decided not to refer the present case to an extended formation.

– in the alternative, declare Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012, as amended, inapplicable in so far as they apply to the applicant;

39 The applicant puts forward five pleas in law in support of the action. The first plea in law alleges breach of the principles of res judicata, legal certainty and legitimate expectations and infringement of the right to an effective remedy. The second plea in law alleges an error of assessment. The third plea in law alleges infringement of the rights of the defence and of the right to good administration and breach of the principle of effective judicial protection. The fourth plea in law alleges infringement of the rights to property and reputation and the freedom to conduct a business. The fifth plea in law, put forward in the alternative, alleges that Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012 are unlawful.

The first plea in law, alleging breach of the principles of res judicata, legal certainty and legitimate expectations and infringement of the right to an effective remedy

40 The applicant submits that its re-inclusion in the lists at issue, by the contested measures, is incompatible with the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608), in which the Court ruled in its favour and according to which the ground [for inclusion] previously put forward by the Council did not justify its inclusion in those lists in October 2012. According to the applicant, the factual allegations relied on in support of the contested measures are identical in substance to those on which its first listing was based and which the Court declared unlawful in the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608). The Council is thus attempting to circumvent that judgment and to re-include it in the lists at issue on the basis of the same allegations, classifying them under different descriptive labels, even though there has been no change in circumstances since the first listing. The applicant claims that, in so doing, the Council is in breach of the principles of res judicata, legal certainty and legitimate expectations and has deprived the applicant of its right to an effective remedy, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union.

41 As regards the principles of res judicata, legal certainty and legitimate expectations, the applicant states that, since the Council did not bring an appeal against the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608), the Council cannot now call in question either the reasoning or the grounds on which that judgment is based. The allegation of ‘logistical support’ is merely another name for the allegation of ‘financial support’ relied on in support of the first listing and rejected in the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608). In the alternative, the applicant submits that, since the facts alleged against it are not new and were known to the Council at the time of the first listing, the Council could and should have relied on them at the time of that first listing.

42 As regards the right to an effective remedy, the applicant submits that that right is infringed if, irrespective of the number of times the applicant succeeded before the Court, the Council could, without acting on the basis of new facts or a change in circumstances, go on indefinitely re-including it in the lists at issue on the basis of the same factual allegations, possibly under a different name.

43 In addition, the applicant notes that, in the United Kingdom, the House of Lords European Union Committee and the House of Commons European Scrutiny Committee expressed doubts as to the merits of its re-listing and therefore adopted a scrutiny reserve regarding the draft Council decision that led to that re-listing. The United Kingdom Government, however, exercised the power that enables it to override parliamentary scrutiny so as to allow it to vote on the adoption of the contested measures in the Council.

44 A preliminary point to note is that the arguments relating to positions held or procedures followed at national level cannot affect the review of the lawfulness of the contested measures in the present case. The Court’s review in the context of the present action relates solely to the action of the Council and is carried out on the basis of the elements available to the Council at the time of the re-listing of the applicant. The aim of that review, which will be carried out in the context of the second and third pleas in law below, is, in particular, to determine, whether the Council complied with the applicable procedural and formal rules when adopting the contested measures and whether the grounds relied on in those measures are sufficient to justify the re-listing of the applicant and substantiated. Accordingly, neither the possible objections to that re-listing expressed at national level, nor the procedure — claimed to be unusual by the applicant — followed by the United Kingdom Government under national law in order to bypass the scrutiny of the competent parliamentary committees and thereby to vote on the adoption of the contested measures in the Council, are relevant for the purposes of challenging the lawfulness of those measures.

45 As to the substance, in the first place, as regards the principle of res judicata, it should be recalled that, according to settled case-law, annulment judgments given by the European Union Courts have force of res judicata with absolute effect as soon as they become final. This applies not only to the operative part of the annulment judgment, but also to the grounds which are its essential basis and are inseparable from it (judgments of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraphs 27 to 30; 3 October 2000, Industrie des Poudres Sphériques v Council, C‑458/98 P, EU:C:2000:531, paragraph 81; and 1 July 2009, ThyssenKrupp Stainless v Commission, T‑24/07, EU:T:2009:236, paragraphs 113 and 140). The annulment judgment therefore means that the author of the measure annulled must adopt a new measure having regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, thereby ensuring that that new measure is not affected by the same irregularities as those identified in the judgment annulling the original measure (see, to that effect, judgment of 6 March 2003, Interporc v Commission, C‑41/00 P, EU:C:2003:125, paragraphs 29 and 30).

46 However, the principle of res judicata in respect of a judgment extends only to the matters of fact and law actually or necessarily settled (judgment of 19 February 1991, Italy v Commission, C‑281/89, EU:C:1991:59, paragraph 14). Thus, Article 266 TFEU requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Furthermore, the author of the measure may rely, in its new decision, on grounds other than those on which it based its first decision (see, to that effect, judgment of 6 March 2003, Interporc v Commission, C‑41/00 P, EU:C:2003:125, paragraphs 28 to 32).

47 In the present case, the applicant does not dispute the fact that, following a judgment annulling the inclusion of an entity in the lists at issue, the Council may decide to re-include that entity in the lists in question. It submits, however, that the Council may not justify such a re-listing on the basis of the same evidence as that relied on at the time of the earlier listing or on the basis of evidence available to the Council or that could have been available to the Council and that the Council therefore could and should have relied on at the time of that earlier listing.

48 The applicant submits that the first ground set out in the contested measures, according to which it provides financial support to the Government of Iran by reason of the existence of links between its shareholders and that government (‘the ground relating to financial support’), is, in essence, identical to that set out in the statement of reasons for the first listing. The Council could not, therefore, in the absence of a change in circumstances since the first listing, base its decision to re-list the applicant on that ground, which had been declared unfounded by the Court in the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608). Moreover, as regards the second ground set out in the contested measures, according to which it provides logistical support to the Government of Iran since it is one of the largest transporters of Iranian crude oil (‘the ground relating to logistical support’), the applicant submits that it could have been relied on at the time of the first listing since the Council was aware of its activities in the Iranian oil transport sector.

49 It is therefore appropriate to examine whether the re-listing of the applicant on the basis of the two grounds set out in paragraph 48 above is in breach of the principle of res judicata.

50 In this connection, it must be noted that one of the grounds and the evidence relied on by the Council in support of the contested measures in the present action are different from those put before the Court in the case that gave rise to the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608).

51 First, as regards the ground relating to financial support, which was already to be found in the statement of reasons for the first listing, it must be noted that, in support of its re-listing decision, the Council relies on new documents, which were not included in its file at the time of the first listing and on which the Court did not therefore give a ruling in the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608).

52 Although, as the applicant notes, the evidence provided in order to justify the re-listing decision relates, for the most part, to a date earlier than the first listing, the Council cannot be criticised for that fact. It should be borne in mind that obtaining evidence substantiating the grounds relied on against a person or entity sometimes proves difficult for the Council in the light of the fact, inter alia, that it is dependent upon the diligence of the Member States in producing such evidence. It is therefore possible that the Council may obtain the evidence necessary to substantiate the grounds for a listing after the date on which that listing was decided. Although those circumstances cannot purge the first listing decision of its irregularity, inasmuch as the lawfulness of a European Union measure must be assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted (see, by analogy, judgment of 27 September 2006, Roquette Frères v Commission, T‑322/01, EU:T:2006:267, paragraph 325 and the case-law cited), they may nevertheless suffice to render lawful a subsequent re-listing decision adopted on the basis of the same grounds as those relied on at the time of the first listing, in so far as the evidence obtained by the Council substantiates those grounds to the requisite legal standard.

53 Second, as regards the ground relating to logistical support, it must be noted that that ground was not included in the statement of reasons for the first listing and it was therefore not reviewed by the Court in the case that gave rise to the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608). Although the factual circumstances that support that ground, namely the applicant’s activities in the transport of Iranian oil, were put forward by the Council at the hearing in that case in support of the ground relating to financial support, the Court found, in that judgment, that that material was not included in the statement of reasons for the listing decision and that, in any event, the applicant’s activities in the oil transport sector in no way substantiated the ground relating to financial support, which was the only ground relied on at the time of the first listing (judgment of 3 July 2014, NITC, T‑565/12, EU:T:2014:608, paragraphs 58 and 60). The Court did not, therefore, in any way examine whether the applicant’s involvement in the Iranian energy sector might constitute logistical support for the Government of Iran.

54 Moreover, as regards the applicant’s argument that the Council could and should have relied on the ground relating to logistical support at the time of the first listing since the facts relied on in support of that ground were already known at the time of that first listing, it should be recalled that a single ground suffices to justify the inclusion of a person or entity in the lists at issue. The Council is therefore free to select the ground it considers to be the most relevant in justifying its decision to include a person or entity in those lists for the first time, and a possible error made in the selection of that ground does not prevent it from relying subsequently on a ground that it could have relied on at the time of the first listing.

55 Therefore, in the light of the foregoing considerations, and without prejudice to the examination of the merits of the grounds relied on in the contested measures, a matter which comes under the second plea in law (see paragraphs 69 to 93 below), it must be held that the Council was not in breach of the principle of res judicata as it attaches to the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608) in re-listing the applicant on the basis of the grounds relating to financial support and logistical support.

56 In the second place, as regards the principles of legal certainty and legitimate expectations, it should be recalled that the right to rely on the principle of the protection of legitimate expectations extends to any person in a situation in which an institution of the European Union has caused him to entertain expectations which are justified by precise assurances provided to him. However, if a prudent and alert economic operator could have foreseen the adoption of a European Union measure likely to affect his interests, he cannot plead that principle if the measure is adopted (judgments of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 147; 17 September 2009, Commission v Koninklijke FrieslandCampina, C‑519/07 P, EU:C:2009:556, paragraph 84; and 16 December 2010, Kahla Thüringen Porzellan v Commission, C‑537/08 P, EU:C:2010:769, paragraph 63).

57 Moreover, as regards the principle of legal certainty, it must be recalled that, according to settled case-law, that principle requires that EU legislation must be certain and its application foreseeable by those subject to it (judgments of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 69, and 14 October 2010, Nuova Agricast and Cofra v Commission, C‑67/09 P, EU:C:2010:607, paragraph 77).

58 In the present case, it should be noted that the Council could decide to re-list the applicant following the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608). As the Court recalled in paragraph 77 of the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608), the Council may, under Article 266 TFEU, correct the irregularities identified in the annulment judgment by adopting, following a further examination, a new listing decision on the basis of reasons that are supported to the requisite legal standard. Moreover, the Court maintained the effects of the decision and regulation by which the applicant was initially included in the lists at issue until the expiry of the period for bringing an appeal, in order to enable the Council to correct in good time the irregularities identified in the judgment in question and to prevent the effectiveness of any fund-freezing measures that might, in the future, be adopted in relation to the applicant from being undermined (judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608, paragraph 78).

59 Although the Council did not bring an appeal against the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608), and it did not take the opportunity afforded by the Court of re-listing the applicant within the period for bringing an appeal, which period expired on 20 September 2014, those circumstances cannot have caused the applicant to entertain the — justified — expectation that it would not be re-listed. First, the failure to bring an appeal against the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608), could in no way be interpreted as the Council relinquishing [the possibility of] re-listing the applicant, since the Court stated expressly that it was for the Council to decide on what measures to adopt to comply with that judgment, which measures might consist in a re-listing on the basis of reasons supported to the requisite legal standard. Second, maintaining the effects of the first listing until the expiry of the period for bringing an appeal was solely intended to prevent the applicant transferring its assets outside the European Union before the Council was able to correct the irregularities identified in the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608). However, no obligation was imposed on the Council to re-list the applicant within that period, which period may, in certain circumstances, prove to be insufficient for correcting the irregularities, in particular where, as in the present case, this requires gathering additional evidence (see paragraph 52 above).

60 Accordingly, it cannot be claimed that the Council was in breach of the principles of legal certainty and legitimate expectations.

61 In the third place, as regards the right to an effective remedy, under Article 47 of the Charter of Fundamental Rights, everyone whose rights and freedoms guaranteed by the law of the European Union are violated has the right to an effective remedy before a tribunal. In this connection, it must be pointed out that the right to an effective remedy before the Courts of the European Union in the field of restrictive measures would be illusory if the legal order of the European Union allowed a judgment given by those courts to remain inoperative to the detriment of a party. It follows that the execution of a judgment of the General Court must be regarded as an integral part of the ‘trial’ for the purposes of the abovementioned provision (see, to that effect, ECtHR, 19 March 1997, Hornsby v. Greece, CE:ECHR:1997:0319JUD001835791, paragraphs 40 and 41).

62 In the present case, the re-listing of the applicant on the basis of the grounds set out in the contested measures in no way calls in question the effectiveness of the action brought in the case that gave rise to the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608).

63 First, it should be noted that, by the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608), the measures that led to the applicant’s first listing in the lists at issue were deleted retroactively from the legal order so that the applicant is to be deemed never to have been included in those lists for the period prior to the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608).

64 Next, it is apparent from the analysis set out in paragraphs 45 to 60 above that, following the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608), none of the principles relied on by the applicant precluded its re-listing on the ground that it provided financial and logistical support to the Government of Iran. In so far as the evidence adduced against the applicant is sufficient to justify the re-listing decision on the basis of one of the criteria for inclusion laid down in Decision 2010/413 and Regulation No 267/2012, a point that the applicant submits for review by the Court in the context of its second plea in law, the annulment of the first listing cannot therefore constitute an element liable to call in question the lawfulness of that re-listing decision. In this connection, it must be recalled that, subject always to the possibility set out in Article 277 TFEU, in reviewing the application of the criteria for inclusion, it is not for the Court to substitute its own assessment of what is appropriate for that of the Council as regards the need to maintain in force the criteria laid down in the abovementioned measures that permit the inclusion or the re-inclusion of certain persons or entities in the lists at issue.

65 Lastly, it must be pointed out that the annulment of the listing of the applicant by the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608), for the period covered by the measures at issue in that case, may constitute the basis for a possible action for damages (see, to that effect, judgment of 25 November 2014, Safa Nicu Sepahan v Council, T‑384/11, under appeal, EU:T:2014:986, paragraphs 45 et seq.).

66 Moreover, where the Council decides to re-list a person or entity following a judgment annulling the first listing of that person or entity, it must be particularly rigorous in its re-examination in order to ensure that the re-listing decision is not affected by the same irregularities as those identified in the annulment judgment and thereby to prevent the person or entity concerned from being, for the second time, unjustly subject to restrictive measures.

67 Consequently, if it were found, in the examination of the second plea in law below (paragraphs 69 to 93), that the grounds relied on in the contested measures in the present case were not sufficient, or not sufficiently substantiated, to support the re-listing of the applicant, and that, therefore, that re-listing was vitiated by the same irregularities as those identified in the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608), the failure on the part of the Council to fulfil its obligation of rigour could be taken into consideration in assessing the unlawfulness of its conduct in any action for damages that might subsequently be brought by the applicant. The Court’s finding that the first listing was unlawful in the judgment of 3 July 2014, NITC (T‑565/12, EU:T:2014:608), which finding gave rise to that obligation of rigour, could thus facilitate the obtention of damages for the harm caused to the applicant as a result of subsequent and unjustified listings in the lists at issue.

68 In the light of all the foregoing, it must therefore be held that the Council was not in breach of the principles of res judicata, legal certainty and legitimate expectations, nor did it infringe the applicant’s right to an effective remedy, and, consequently, the first plea in law must be rejected.

70 In the first place, it submits that the ground relating to financial support is incorrect. It states in this connection that it was privatised in 2000 and that none of its shareholders are owned or controlled by the Government of Iran. It states, in addition, that the documents provided by the Council are inaccurate or do not in any way substantiate the Council’s position since none of them calls in question the fact that the applicant is owned by private pension funds.

71 In the second place, as regards the ground relating to logistical support, first, the applicant submits that that ground is no more than a re-characterisation of allegations made by the Council at the time of the first listing. The applicant submits that since the Council does not rely on any new circumstances in support of that ground, it should have been advanced at the time of the first listing.

72 Second, it argues that, in order to apply the criterion of providing support to the Government of Iran, laid down in Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012 (‘the criterion at issue’), the Council must establish the existence of direct support to that government, which support, by its quantitative or qualitative significance, is capable of encouraging nuclear proliferation activities. The applicant submits that the transport of oil that it carries out for third companies, which would enable those companies to pay dividends to the Government of Iran, could constitute only indirect support to that government. Moreover, the applicant submits that the Council has not provided any evidence establishing that the applicant’s activities in the oil transport sector allow the Government of Iran to pursue its nuclear proliferation activities.

73 In the reply, the applicant submits that the interpretation of the criterion at issue given by the Court in the judgment of 25 June 2015, Iranian Offshore Engineering & Construction v Council (T‑95/14, under appeal, EU:T:2015:433), is overly broad and disproportionate in the light of the objectives pursued by Decision 2010/413 and Regulation No 267/2012.

74 Third, the applicant adds that, in any event, the criterion at issue cannot embrace the mere transport of Iranian oil since the Joint Plan of Action expressly permits such activity.

75 It must be recalled that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights requires, inter alia, that, as part of the review of the lawfulness of the grounds which are the basis of the decision to list or to maintain the listing of a given person, the Courts of the European Union are to ensure that that decision is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, 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 that decision, is substantiated (judgment 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).

76 It is the task of 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. It is necessary that the information or evidence produced should support the reasons relied on against the person concerned. If that material is insufficient to allow a finding that a reason is well founded, the Courts of the European Union are to disregard that reason as a possible basis for the contested decision to list or maintain a listing (judgment 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, paragraphs 121 to 123).

77 Furthermore, the Court has held that, having regard to the preventive nature of restrictive measures, if the Courts of the European Union consider that, at the very least, one of the reasons mentioned is sufficiently detailed and specific, that it is substantiated and that it constitutes in itself sufficient basis to support that decision, the fact that the same cannot be said of other such reasons cannot justify the annulment of that decision (judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 72).

78 In the present case, it is apparent from the statement of reasons for the contested measures that the Council decided to re-list the applicant on the basis of the criterion relating to entities that provide support to the Government of Iran. Two grounds were relied on in order to justify the application of that criterion: first, the ground relating to financial support; second, the ground relating to logistical support.

79 It is appropriate to examine the applicant’s arguments directed at disputing the ground relating to logistical support first, and then, if necessary, those directed at disputing the ground relating to financial support.

80 In the first place, it should be noted that, in accordance with the analysis set out in the context of the first plea in law (paragraphs 40 to 68 above), there was nothing to preclude the Council justifying its decision to re-list the applicant on the basis of the ground relating to logistical support, even though the Council was aware of the facts relied on in support of that ground at the time of the first listing and no new circumstances had arisen as regards those facts since the first listing.

81 In the second place, as regards whether the criterion relating to entities that provide support to the Government of Iran is proportionate in the light of the objectives pursued by Decision 2010/413 and Regulation No 267/2012, it must be pointed out that that question concerns the lawfulness of that criterion. The arguments put forward by the applicant in that regard will therefore be examined, where appropriate, in the context of the fifth plea in law by which the applicant raises, in the alternative, a plea of illegality against the criterion in question.

82 In the third place, it should be noted that, contrary to what the applicant claims, the Council has not alleged that the applicant provides indirect support to the Government of Iran through a third company that pays dividends to that government. It is clear from the statement of reasons for the contested measures, and from the letter of 23 October 2014 by which the Council informed the applicant of its intention to re-include it in the lists at issue and of the reasons justifying that re-listing, that it is on account of the significance of the applicant’s transport activities in the Iranian oil sector, which is controlled by the Government of Iran, that the applicant is regarded as providing support, characterised as logistical support, to that government.

83 It is therefore appropriate to examine whether the Council erred in concluding that the applicant provided logistical support to the Government of Iran on account of its activities in the transport of Iranian oil.

84 In this connection, first of all, it must be pointed out that the applicant does not dispute the nature or the scale of its activities in the Iranian energy sector. According to the statement of reasons for the contested measures and the documents provided to the applicant by emails of 27 October 2014, the applicant operates the largest tanker fleet in the Middle East and is one of the main transporters of Iranian crude oil. Moreover, its main business activity consists in providing essential services to NIOC, an entity owned and controlled by the Government of Iran and which has also been included in the lists at issue. The applicant’s transport activities are thus essential for the proper functioning of the Iranian oil industry, which is controlled by the Government of Iran through various State-owned undertakings.

85 Next, it should be recalled that the criterion at issue, which is the only relevant criterion in the present case, is to be distinguished from the criterion relating to the provision of support for Iran’s proliferation-sensitive nuclear activities, laid down in Article 20(1)(b) of Decision 2010/413 and Article 23(2)(a) of Regulation No 267/2012. That criterion is to be construed as being aimed at any support which, although having no direct or indirect connection with the development of nuclear proliferation, is nonetheless capable, by its quantitative or qualitative significance, of encouraging such development, by providing the Government of Iran with resources or facilities of a material, financial or logistical nature which allow it to pursue nuclear proliferation activities (judgment of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraphs 79 and 80).

86 Lastly, the connection established by the applicable legislation between the Iranian energy sector and the development of the nuclear programme of the Islamic Republic of Iran must be noted. Recital 22 in the preamble to Decision 2010/413, which refers to Resolution 1929, notes the potential connection between the revenue derived by the Islamic Republic of Iran from its energy sector and the funding of its nuclear activities (see paragraph 5 above).

87 Therefore, in the present case, having regard, first, to the significance of the applicant’s transport activities in the Iranian oil sector, which allow the Government of Iran to meet specific logistical needs in that sector, which it controls, and, second, to the connection that exists between the energy sector and nuclear proliferation activities in the Islamic Republic of Iran, mentioned in paragraph 86 above, it must be held that the Council did not err in finding that the applicant provided support to the Government of Iran, within the meaning of the criterion at issue.

88 Moreover, that conclusion cannot be called in question by the suspension of certain restrictive measures taken against the Islamic Republic of Iran, provided for in the Joint Plan of Action.

89 In this connection, it should be recalled that, pursuant to the Joint Plan of Action relied on by the applicant, the Council adopted, on 20 January 2014, Decision 2014/21 and Regulation No 2014/42 in order to suspend temporarily the prohibition on transporting oil originating in or exported from the Islamic Republic of Iran to any other country, laid down in Article 3a of Decision 2010/413 and Article 11 of Regulation No 267/2012 (see paragraphs 18 and 19 above). The suspension of that prohibition, which was extended by various successive measures of the Council, therefore contributes to easing the sanctions regime applying to the Islamic Republic of Iran by allowing entities incorporated or constituted under the law of a Member State, to whom the prohibition in question applied under Article 49 of Regulation No 267/2012, provide transport services in relation to Iranian crude oil sales to current customers.

90 However, neither the elements set out as part of the first step of the Joint Plan of Action, nor the measures adopted by the Council to implement that Plan of Action, provide for a suspension of individual restrictive measures or for an amendment of the criteria on the basis of which such measures may be adopted. It is therefore apparent from those measures that, despite the introduction of sanctions relief, the Council considered it necessary, at that stage, to maintain and continue to adopt fund-freezing measures against entities that satisfy one of the criteria for inclusion laid down in Decision 2010/413 and Regulation No 267/2012.

91 Consequently, the fact that, following the implementation of the Joint Plan of Action, certain activities in relation to the transport of Iranian crude oil were temporarily no longer prohibited in no way prevented the Council from re-listing the applicant, since, as is apparent from the analysis set out above (paragraphs 80 to 87), the applicant satisfied the criterion of providing support to the Government of Iran.

92 Accordingly, and in accordance with the case-law referred to in paragraph 77 above, it must be held that the re-listing of the applicant was justified, and it is not necessary to examine the ground relating to financial support.

The third plea in law, alleging infringement of the rights of the defence and of the right to good administration and breach of the principle of effective judicial protection

94 The applicant claims that the Council infringed its rights of defence, its right to good administration and was in breach of the principle of effective judicial protection.

95 First, it submits that the Council did not provide it with the actual grounds on which it envisaged re-including it in the lists at issue, nor did the Council provide it with the evidence establishing that it directly provided financial or logistical support to the Government of Iran. According to the applicant, the Council did not, therefore, provide it with a full copy of its file as it was obliged to do.

96 Second, the Council did not allow it to effectively make known its views on the actual grounds for its re-listing. In that regard, the applicant submits that it was granted insufficient time to submit its observations regarding the Council’s letter of 23 October 2014 and the supporting documents provided by emails of 27 October 2014. Furthermore, it submits that it was not in a position to comment on the material contained in the extract from the proposal to re-list it since that document was provided to it belatedly without justification.

97 Third, the Council did not grant the applicant a hearing before re-including it in the lists at issue, despite the request made to that effect in its letter of 5 November 2014.

98 Fourth, the Council provided no evidence showing that it had examined carefully and impartially the observations that the applicant had made in its letter of 5 November 2014.

99 First of all, it should be recalled that, according to settled case-law, respect for the rights of the defence, especially the right to be heard, in all proceedings initiated against an entity which may lead to a measure adversely affecting that entity, is a fundamental principle of EU law which must be guaranteed, even when there are no rules governing the procedure in question (see judgment of 14 October 2009, Bank Melli Iran v Council, T‑390/08, EU:T:2009:401, paragraph 91 and the case-law cited).

100 First, the principle of respect for the rights of the defence requires that the entity concerned must be informed of the evidence adduced against it to justify the measure adversely affecting it. Second, it must be afforded the opportunity effectively to make known its views on that evidence (see, by analogy, judgment of 12 December 2006, Organisation des Modjahedines du peuple d’Iran v Council, T‑228/02, EU:T:2006:384, paragraph 93). On the other hand, neither the legislation in question, namely Decision 2010/413 and Regulation No 267/2012, nor the general principle of respect for the rights of the defence, gives the persons concerned the right to a formal hearing (see, to that effect and by analogy, judgment of 23 October 2008 in People’s Mojahedin Organization of Iran v Council, T‑256/07, EU:T:2008:461, paragraph 93 and the case-law cited).

101 Next, in contrast to an initial measure whereby the funds of an entity are frozen, any subsequent decision to freeze funds must, in principle, be preceded by disclosure of any new incriminating evidence, unless overriding considerations pertaining to the security of the European Union or of its Member States or to the conduct of their international relations preclude it, and by an opportunity for the entity concerned to make known its views (see, by analogy, judgment of 12 December 2006, Organisation des Modjahedines du peuple d’Iran v Council, T‑228/02, EU:T:2006:384, paragraph 137).

102 Moreover, it must be observed that when sufficiently precise information has been communicated, enabling the entity concerned to make its point of view on the evidence adduced against it by the Council known to advantage, the principle of respect for the rights of the defence does not mean that that institution is obliged spontaneously to grant access to the documents in its file. It is only at the request of the party concerned that the Council is required to provide access to all non-confidential official documents concerning the measure at issue (see judgment of 14 October 2009, Bank Melli Iran v Council, T‑390/08, EU:T:2009:401, paragraph 97 and the case-law cited).

103 Lastly, as regards the principle of effective judicial protection, it must be recalled that that principle is a general principle of EU law to which expression is now given by Article 47 of the Charter of Fundamental Rights. That principle means that the European Union authority which adopts an act imposing restrictive measures against a person or entity is bound to communicate to that person or entity the grounds on which it is based, so far as possible, either at the time when that measure is adopted or, at the very least, as swiftly as possible after it has been adopted, in order to enable that person or entity to exercise its right to bring an action, within the time limits (see, to that effect, judgment of 16 November 2011, Bank Melli Iran v Council, C‑548/09 P, EU:C:2011:735, paragraph 47 and the case-law cited).

104 Since, in the present case, it has been held in paragraph 92 above that the re-listing of the applicant was justified on the sole basis of the ground relating to logistical support, it is appropriate to verify, in the context of the present plea in law, whether the Council observed the principles set out in paragraphs 99 to 103 above in so far as that ground is concerned.

105 First, as regards the disclosure of incriminating evidence and access to the file, first of all, it should be noted that, by letter of 23 October 2014, that is to say almost four months before the adoption of the contested measures, the Council informed the applicant of the reasons why it considered that the applicant provided support to the Government of Iran. In that letter, it stated, inter alia, that the applicant provided logistical support to the Government of Iran because it was a key transporter in the Iranian oil sector and that sector was controlled by the Iranian State.

106 Next, by emails of 27 October 2014, the Council provided the applicant with documents in its file that it had omitted to attach to its letter of 23 October 2014 (see paragraph 25 above). Those documents, which the Council contends justified the re-listing of the applicant, contained, inter alia, information regarding the applicant’s shareholders and its activities in the oil transport sector.

107 Lastly, the Council replied to the request for access to documents made by the applicant in its letter of 29 October 2014 by providing the applicant, by letter of 5 February 2015, with a declassified extract from the proposal to re-include it in the lists at issue.

108 In this connection, it must be pointed out, first, that the declassified extract referred to in paragraph 107 above was disclosed to the applicant more than three months after its request for access to the file and only seven days before the adoption of the contested measures, and, second, that the Council did not state whether the file regarding the re-listing of the applicant contained documents other than those provided by emails of 27 October 2014 and by letter of 5 February 2015. However, it must be recalled that the belated disclosure of a document on which the Council relied in order to adopt or maintain the restrictive measures concerning an entity, or the failure to disclose such a document, does not constitute an infringement of the rights of the defence that would justify the annulment of the acts concerned unless it is established that the restrictive measures concerned could not lawfully have been adopted or maintained if the document in question had to be excluded as incriminating evidence (judgments of 6 September 2013, Bank Melli Iran v Council, T‑35/10 and T‑7/11, EU:T:2013:397, paragraph 100, and Persia International Bank v Council, T‑493/10, EU:T:2013:398, paragraph 85).

109 Consequently, in the present case, even if the disclosure of the document contained in the letter of 5 February 2015 were to be regarded as belated and the Council were to be regarded as having granted the applicant only partial access to its file, as the applicant claims, those circumstances could justify the annulment of the contested measures only if it were also established that the re-listing of the applicant could not be justified having regard to the material to which it had access in good time, namely the reasons for its listing provided by letter of 23 October 2014 and the documents provided by emails of 27 October 2014. It is apparent from the analysis set out in paragraphs 84 to 87 above that that material, to which the applicant had access almost four months before the adoption of the contested measures, constituted a sufficient basis to justify the re-listing of the applicant.

110 Accordingly, the fact that the applicant may not have obtained access to certain documents, or may not have obtained access to them in good time, is not, in any event, liable to justify the annulment of the contested measures.

111 Second, as regards the applicant’s right to make known its views, it should be recalled that, in the letter of 23 October 2014, the Council informed the applicant that it had until 5 November 2014 to submit observations on the evidence adduced against it, thereby allowing the applicant a period of thirteen days within which to make known its views.

112 In that regard, first of all, it must be pointed out that the Council did not reply to the applicant’s various requests, made in its letters of 27 and 29 October 2014, for an extension to the period within which to make known its views. Although that unjustified failure to reply is not, in itself, liable to constitute an infringement of the rights of the defence, it nevertheless left the applicant in a state of uncertainty as to a possible extension of the deadline by which the applicant was required to submit its observations and it therefore in no way helped the applicant to conduct its defence.

113 Next, the imposition of a deadline within which to submit observations, although not expressly provided for by the applicable legislation, may well be justified inasmuch as it makes it possible for the Council to know when it will have all the material necessary for assessing a possible re-listing and therefore when it will be able to take a decision. However, in the present case, the Court considers, like the applicant, that having regard to the fact that the supporting documents mentioned in the letter of 23 October 2014, which the Council omitted to attach to that letter, were only provided on 27 October 2014, the deadline of 5 November set in the letter of 23 October 2014 allowed the applicant only a relatively short period within which to submit its observations.

114 Lastly, the period prescribed in the letter of 23 October 2014 did not make it possible for the applicant to make known its views, before the adoption of the contested measures, on the declassified extract from the proposal to re-include it in the lists at issue provided by letter of 5 February 2015.

115 Consequently, in the light of those factors, and given the obligation of rigour that was required of the Council when adopting the contested measures (see paragraph 66 above), it should be held that, because of the short period imposed on the applicant within which to submit its observations on the charges against it, the contested measures are vitiated by an irregularity. However, that irregularity clearly did not prevent the applicant from effectively making known its views before the adoption of those measures.

116 In its letter of 5 November 2014, the applicant submitted observations concerning, inter alia, the merits of the ground relating to logistical support relied on against it. Those observations are, however, in essence identical to the arguments made in the context of the present action, which was brought almost six months after the disclosure of the incriminating evidence by the letter and emails of 23 and 27 October 2014. The applicant cannot claim, therefore, that the granting of an additional period was necessary in order to enable it properly to defend its rights.

117 Moreover, the document provided to the applicant by letter of 5 February 2015 does not add anything new regarding the ground relating to logistical support. Consequently, even if the applicant had had knowledge of that document in good time, that circumstance would not, in any event, have enabled it to put forward views different from those submitted in its observations of 5 November 2014.

118 Accordingly, the irregularity identified in paragraph 115 above cannot justify the annulment of the contested measures.

119 Third, as regards the applicant’s right to be heard, it should be recalled that, in accordance with the case-law referred to in paragraph 100 above, the Council was not required to grant the applicant a formal hearing before re-including it in the lists at issue, since the possibility that was afforded the applicant of submitting its observations in writing was sufficient for the purposes of respecting the applicant’s right to make known its views.

120 Fourth, the applicant’s argument that the Council did not carefully examine the observations set out in its letter of 5 November 2014 is unfounded. In the letter of 16 February 2015 by which the applicant was informed of its re-listing, the Council replied to each of the applicant’s observations, thereby showing that it had taken them into account before adopting the contested measures. However, it considered that the applicant’s arguments, which concerned the respect for its rights of defence, were not liable to call in question the lawfulness of that re-listing.

121 In the light of all the foregoing, it must be held that the arguments put forward by the applicant concerning its rights of defence and the Council’s obligation carefully to examine its observations do not justify the annulment of the contested measures and must therefore be rejected. As regards the claimed infringement of the right to effective judicial protection and breach of the principle of good administration, it must be observed that, in so far as the applicant has not put forward any specific argument in this connection, that claim has no independent scope and must therefore also be rejected.

The fourth plea in law, alleging infringement of the rights to property and reputation and the freedom to conduct a business

123 The applicant claims that its re-listing constitutes an unjustified and disproportionate infringement of its fundamental rights.

124 First, it states that it was unable to put its case properly. Second, it submits that the contested measures have had a far-reaching impact on its business and reputation. Third, it argues that the Commission has failed to demonstrate that the freezing of its assets would prevent the development of nuclear proliferation. Fourth, it submits that permitting the listing of an entity that provides only indirect support to the Government of Iran with no link to the Iranian nuclear programme is manifestly disproportionate. Fifth, it states that the Joint Plan of Action permits companies which fall within the territorial scope of the sanctions regime adopted against the Islamic Republic of Iran to transport crude oil. Imposing restrictive measures on the applicant on the ground that it engages in activities that are nevertheless authorised by the Council as regards the abovementioned companies is therefore discriminatory and disproportionate. Sixth, it submits that, in the light of the context, its re-listing was not necessary to achieve the objective pursued. In this connection, it states that it was already subject to certain restrictions under Articles 10a, 10b, 35 and 37a of Regulation No 267/2012 and that fund-freezing measures had already been adopted against the largest oil supplier, namely NIOC. Moreover, it notes that its activities consist in the transport of oil to China, India, South Korea, Taiwan and Turkey, which is not prohibited by any sanctions regime. Seventh, it states that the measures taken against it could have a devastating effect on the pension fund beneficiaries of its shareholders.

125 A preliminary point to note in respect of the first argument raised by the applicant is that, as is apparent from the analysis of the third plea in law above (see paragraphs 94 to 122), the contested measures are not vitiated by an infringement of the applicant’s procedural rights such as to justify their annulment. Accordingly, the applicant cannot usefully rely, in the context of the present plea in law, on an infringement of the right to make known its views, in order to support the claim that the measures taken against it constitute an unjustified restriction on its fundamental rights.

126 Furthermore, as regards the third and fourth arguments, to the effect that the freezing of the applicant’s funds was neither an appropriate nor a proportionate measure for preventing the development of nuclear proliferation, it must be stated that these are directed at challenging the lawfulness of the provisions of Decision 2010/413 and Regulation No 267/2012 on the basis of which the contested measures were adopted. Consequently, those arguments will be examined in the context of the fifth plea in law below (see paragraphs 139 to 146).

127 As to the substance, it should be recalled, in the first place, that, in accordance with the principle of proportionality, which is one of the general principles of EU law, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures should be appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 6 September 2013, Bank Melli Iran v Council, T‑35/10 and T‑7/11, EU:T:2013:397, paragraph 179 and the case-law cited).

128 However, first, as recalled in paragraph 85 above, the freezing of the funds of entities providing support to the Government of Iran is intended to deprive that government of the resources or facilities of a material, financial or logistical nature which allow it to pursue proliferation activities. In the present case, it is apparent from the examination of the second plea in law (see paragraphs 80 to 93 above) that the Council was correct in finding that the applicant provided logistical support to the Government of Iran. Accordingly, the re-listing of the applicant corresponds to the legitimate objective pursued by the applicable legislation.

129 Second, although the applicant claims that the restrictive measures against it have serious repercussions on its business and reputation and are likely to affect the pension fund beneficiaries of its shareholders, it must be noted that it has not substantiated its claims with evidence or specific information.

130 In any event, it is indeed true that the applicant’s rights are restricted to some extent by the restrictive measures taken against it, since it cannot, inter alia, use its funds that may be located within the European Union or held by its nationals, or transfer its funds to the European Union, except where special authorisation has been granted. Similarly, the measures concerning the applicant may, in some circumstances, give rise to some mistrust regarding it.

131 However, the case-law makes it clear that the fundamental rights relied on by the applicant are not absolute rights and that their exercise may be subject to restrictions justified by public interest objectives pursued by the European Union. Thus, any restrictive economic or financial measure entails, ex hypothesi, consequences affecting the right to property and the right to the free exercise of economic activity, so causing harm to parties who have not been found to be responsible for the situation giving rise to the measures in question. The importance of the objectives pursued by the legislation at issue is such as to justify negative consequences, even of a substantial nature, for some operators (see judgment of 9 July 2009, Melli Bank v Council, T‑246/08 and T‑332/08, EU:T:2009:266, paragraph 111 and the case-law cited).

132 In the present case, given the prime importance of the preservation of international peace and security, the difficulties caused to the applicant are not disproportionate to the ends sought. That is particularly so because the freezing of funds concerns, at most, only a part of the applicant’s assets and Decision 2010/413 and Regulation No 267/2012 provide for certain exceptions enabling in particular the entities concerned by the fund-freezing measures to meet essential expenditure. Moreover, it should be observed that the Council has not alleged that the applicant is itself involved in nuclear proliferation. Since it is therefore not personally associated with behaviour posing a risk to international peace and security, the degree of mistrust arising regarding it is therefore lower.

133 In the second place, it must be pointed out that the context in which the contested measures were adopted cannot call in question the conclusion that the restrictions on the applicant’s fundamental rights were justified.

134 First of all, neither the provisions of Regulation No 267/2012 relied on by applicant, nor the inclusion of NIOC in the lists at issue, are liable to call in question the necessary nature of the restrictive measures taken against the applicant. Under Article 49 of Regulation No 267/2012, the prohibitions laid down in Articles 10a, 10b, 35 and 37b of that regulation (see paragraphs 10 and 16 above) do not apply to the applicant, but are directed solely at entities incorporated or constituted under the law of a Member State. Although it is true that those provisions may affect the applicant since they prohibit the provision of certain services and equipment to Iranian entities, such as the applicant, it must be noted that they have nevertheless not prevented the applicant pursuing its transport activities in the Iranian oil sector, in particular, because the prohibitions in question do not prevent it obtaining the services and equipment necessary for pursuing its activities from undertakings established outside the European Union. Moreover, as is apparent from the documents provided to the applicant by emails of 27 October 2014, the restrictive measures taken against NIOC have in no way prevented that entity, owned by the Government of Iran, pursuing its activities in the Iranian energy sector or turning to the applicant in order to obtain essential services. None of the abovementioned measures have therefore prevented the applicant providing logistical support to NIOC and, therefore, to the Government of Iran, which controls the energy sector. Consequently, in order to achieve the objective pursued, namely exerting pressure on the Government of Iran, the re-listing of the applicant remained necessary.

135 Next, although the transport of oil to countries such as China, India, South Korea, Taiwan and Turkey is not, in itself, prohibited by the applicable legislation and, following the adoption of the Joint Plan of Action, certain prohibitions relating to the transport of Iranian oil have been suspended (see paragraphs 18 and 19 above), it must be recalled that it is on account of the significance of the applicant’s transport activities, which are essential for the proper functioning of the Iranian oil sector, that the Council considered that the applicant provided support to the Government of Iran, within the meaning of the criterion at issue. The applicant’s situation cannot therefore be compared to that of other entities, which admittedly transport oil, but which do not do so on a scale permitting the inference that the abovementioned criterion is satisfied. The applicant is therefore wrong in claiming that the measures taken against it are discriminatory.

136 Lastly, it is of little importance that it is the second time the applicant has been included in the lists at issue. Following the annulment of the first listing, it was for the Council to carry out, on the basis of Article 266 TFEU, a further examination in order to assess whether the applicant ought to be re-listed, on the basis of reasons which are supported to the requisite legal standard.

137 It is apparent from the analysis of the second plea in law above that the re-listing of the applicant is justified under the criterion at issue.

138 In the light of all the foregoing, the fourth plea in law must therefore be rejected.

The fifth plea in law, alleging that Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012 are unlawful

139 The applicant submits that if the criterion at issue includes the provision of indirect financial support or the provision of logistical support with no link to nuclear proliferation, that criterion is disproportionate in the light of the objective pursued and, therefore, unlawful. It submits that, in not requiring that a link be established between the entity covered and nuclear proliferation, that criterion is not consistent with the principle of legal certainty.

140 A preliminary point to note is that since it is apparent from the analysis set out above that the contested measures are justified on the basis of the criterion at issue, inasmuch as the applicant provides direct support, characterised as logistical support, to the Government of Iran, it is not necessary to examine whether that criterion may also be interpreted as covering, without breach of the principles of legal certainty and proportionality relied on by the applicant, those entities that provide indirect financial support to that government.

141 As to the substance and, in the first place, as regards the principle of legal certainty, according to settled case-law, that principle, which is a general principle of EU law, requires, particularly, that rules of law be clear, precise and predictable in their effects, in particular where they may have negative consequences on individuals and undertakings (judgment of 18 November 2008, Förster, C‑158/07, EU:C:2008:630, paragraph 67). A penalty, even of a non-criminal nature, cannot be imposed unless it rests on a clear and unambiguous legal basis (see, to that effect, judgment of 18 November 1987, Maizena and Others, 137/85, EU:C:1987:493, paragraph 14). The principle of legal certainty implies, inter alia, that any EU legislation, in particular when it imposes or permits the imposition of penalties, must be clear and precise so that the persons concerned may know without ambiguity what rights and obligations flow from it and may take steps accordingly (judgment of 5 April 2006, Degussa v Commission, T‑279/02, EU:T:2006:103, paragraph 66).

142 That requirement of a clear and precise legal basis has also been enshrined in the sphere of restrictive measures (see, to that effect, judgment of 12 December 2013, Nabipour and Others v Council, T‑58/12, EU:T:2013:640, paragraph 107).

143 In the present case, the applicant submits, in essence, that the criterion at issue does not meet the requirement of foreseeability, in so far as it covers any support to the Government of Iran, without requiring that the persons or entities concerned be involved in nuclear proliferation activities.

144 However, it has already been held that the criterion at issue limits the Council’s discretion, by establishing objective criteria, and guarantees the degree of foreseeability required by EU law. Indeed, interpreted by reference to the objective of applying pressure on the Government of Iran in order to oblige it to put an end to its proliferation-sensitive nuclear activities, that criterion is aimed in a targeted and selective manner at the relevant person or entity’s own activity, which, even if it has no actual direct or indirect connection with nuclear proliferation, is nonetheless capable of encouraging it, by providing the Government of Iran with resources or facilities of a material, financial or logistical nature which allow it to pursue proliferation activities (judgment of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraphs 79 and 80).

145 In the second place, as regards the principle of proportionality, having regard to the prime importance of the preservation of international peace and security, the Council was entitled to take the view, without exceeding the bounds of its discretion, that the freezing of the funds of entities that provide support to the Government of Iran, within the meaning of the criterion at issue, constituted a necessary and appropriate measure for the purposes of exerting pressure on the Government of Iran in order to oblige it to cease its nuclear proliferation activities (see, to that effect, judgment of 13 March 2012, Melli Bank v Council, C‑380/09 P, EU:C:2012:137, paragraph 61).

146 The fifth plea in law must therefore be rejected, and, consequently, the action must be dismissed in its entirety.

147 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 135(1) of the Rules of Procedure, the Court may decide, exceptionally, if equity so requires, that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own, or even that he is not to be ordered to pay any.

148 In the present case, the Court considers that it is equitable, having regard to the lack of procedural rigour on the part of the Council identified in paragraph 115 above, that each party should bear its own costs.

2. Orders National Iranian Tanker Company and the Council of the European Union to bear their own costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> National Iranian Tanker Company v Council (Judgment) [2016] EUECJ T-207/15 (14 September 2016) URL: http://www.bailii.org/eu/cases/EUECJ/2016/T20715.html Cite as: ECLI:EU:T:2016:471, EU:T:2016:471, [2016] EUECJ T-207/15

Court of Justice of the European Communities (including Court of First Instance Decisions)