Bank Tejarat v Council (External relations : Common foreign and security policy External relations : Common foreign and security policy - Judgment) [2017] EUECJ T-346/15 (14 March 2017)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

(Common foreign and security policy — Restrictive measures taken against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Re-listing of the applicant — Obligation to state reasons — Manifest error of assessment — Res judicata — Misuse of powers — Fundamental rights)

Bank Tejarat, established in Tehran (Iran), represented by S. Zaiwalla, P. Reddy, A. Meskarian, Solicitors, M. Brindle QC, and R. Blakeley, Barrister,

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

APPLICATION pursuant to Article 263 TFEU for annulment of Council Decision (CFSP) 2015/556 of 7 April 2015 amending Council Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2015 L 92, p. 101), and of Council Implementing Regulation (EU) 2015/549 of 7 April 2015 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2015 L 92, p. 12), in so far as they concern the applicant,

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

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 end proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems.

3 The applicant’s name was entered on the list in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), by means of Council Decision 2012/35/CFSP of 23 January 2012 amending Decision 2010/413 (OJ 2012 L 19, p. 22).

4 Consequently, the applicant’s name was entered on the list in Annex VIII to Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), by means of Council Implementing Regulation (EU) No 54/2012 of 23 January 2012 implementing Regulation No 961/2010 (OJ 2012 L 19, p. 1).

5 When it adopted Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010 (OJ 2012 L 88, p. 1), the Council of the European Union included the applicant’s name on the list in Annex IX to that regulation. The reasons stated with regard to the applicant were the same as those set out in Implementing Regulation No 54/2012.

6 Following the adoption of Council Decision 2012/457/CFSP of 2 August 2012 amending Decision 2010/413 (OJ 2012 L 208, p. 18) and of Council Implementing Regulation (EU) No 709/2012 of 2 August 2012 implementing Regulation No 267/2012 (OJ 2012 L 208, p. 2), and the corrigendum to Implementing Regulation No 709/2012, published on 12 February 2013 (OJ 2013 L 41, p. 14), the reasons given in respect of the applicant were worded as follows:

‘Bank Tejarat is a partly State-owned bank. It has directly facilitated Iran’s nuclear efforts. For example, in 2011, Bank Tejarat facilitated the movement of tens of millions of dollars in an effort to assist the UN designated Atomic Energy Organisation of Iran’s (AEOI) ongoing effort to acquire yellowcake uranium. The AEOI is the main Iranian organisation for research and development of nuclear technology, and manages fissile material production programmes.

Bank Tejarat also has a history of assisting designated Iranian banks in circumventing international sanctions, for example acting in business involving UN designated Shahid Hemmat Industrial Group cover companies.

Through its financial services to EU designated Bank Mellat and Export Development Bank of Iran (EDBI) in the past few years, Bank Tejarat has also supported the activities of subsidiaries and subordinates of the Iran Revolutionary Guard Corps, UN designated Defense Industries Organisation and UN designated MODAFL.’

7 By application lodged at the General Court Registry on 16 April 2012, the applicant brought an action for annulment of Decision 2012/35, Implementing Regulation No 54/2012, Regulation No 267/2012 and Implementing Regulation No 709/2012, in so far as those acts concerned it.

8 By judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), the General Court annulled the acts mentioned in paragraph 7 above in so far as they concerned the applicant, on the ground that the Council had not established that the applicant had provided support for nuclear proliferation or assisted other persons and entities to breach or avoid the restrictive measures to which they were subject. As no appeal was brought against that judgment, it became final and res judicata.

9 By letter of 12 March 2015, the Council stated to the applicant, inter alia, that it considered that, ‘since [the applicant] [was providing] financing to crude oil production and refining projects which necessarily require[d] the acquisition of key equipment and technology for those sectors as referred to in Articles 4 and 4a of Decision 2010/413 and Article 8 of Regulation No 267/2012, it [was providing] support for Iran’s nuclear proliferation activities through involvement in the procurement of prohibited goods and technology’, and that, therefore, ‘[it met] the conditions for designation under Article 20(1)(c) and (b) of Decision 2010/413 and Article 23(2)(d) and (a) of Regulation No 267/2012 respectively’. The Council informed the applicant that it intended to include the applicant again on the lists of persons and entities subject to restrictive measures in Annex II to Decision 2010/413 and Annex IX to Regulation No 267/2012 on the basis of the following statement of reasons:

‘Bank Tejarat provides significant support to the Government of Iran by offering financial resources and financing services for oil and gas development projects. The oil and gas sector constitutes a significant source of funding for the Government of Iran and several projects financed by Bank Tejarat are carried out by subsidiaries of entities owned and controlled by the Government of Iran. In addition, Bank Tejarat remains partly owned by and closely linked to the Government of Iran which is therefore in a position to influence Bank Tejarat’s decisions, including its involvement in the financing of projects regarded by the Iranian Government as a high priority.

Furthermore, as Bank Tejarat provides financing to various crude oil production and refining projects which necessarily require the acquisition of key equipment and technology for those sectors whose supply for use in Iran is prohibited, Bank Tejarat can be identified as being involved in the procurement of prohibited goods and technology.’

10 That letter from the Council to the applicant was accompanied by documents on which the Council based its decision once again to include the applicant’s name on the lists (‘the re‑listing decision’).

11 By letter of 16 March 2015, the Council sent the applicant a declassified extract from the proposal for a re‑listing decision presented by a Member State (‘the Member State’s proposal’).

12 By letter of 24 March 2015, the applicant, through its lawyer, challenged the reasons for the re‑listing decision. It maintained that, since the allegations and evidence put forward by the Council to justify that decision were already available when the applicant’s name was first entered on the lists (‘the original listing’) and before the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), that decision constituted an infringement of Article 266 TFEU, an abuse of process, and breach of the principle of res judicata, of the principle of legal certainty, of the right to effective judicial protection and of the principle of good administration. It also submitted that certain allegations in the summary of reasons were incorrect and that the reasons given for them were insufficient.

13 By Council Decision (CFSP) 2015/556 of 7 April 2015 amending Decision 2010/413 (OJ 2015 L 92, p. 101), the applicant’s name was entered on the list in Annex II to Decision 2010/413 with effect from 8 April 2015, on the basis of the new statement of reasons set out in paragraph 9 above.

14 Consequently, by Council Implementing Regulation (EU) 2015/549 of 7 April 2015 implementing Regulation No 267/2012 (OJ 2015 L 92, p. 12), the applicant’s name was entered on the list in Annex IX to the latter regulation with effect from 8 April 2015, on the basis of the new statement of reasons set out in paragraph 9 above.

15 By letter of 8 April 2015 to the applicant’s lawyer, the Council challenged the observations made by the applicant in its letter of 24 March 2015 and informed it that the re‑listing decision had been adopted.

16 The applicant brought the present action by application lodged at the General Court Registry on 18 June 2015.

17 Under Article 106(3) of its Rules of Procedure, if no request for a hearing has been submitted by the main parties within three weeks after service of notification of the close of the written part of the procedure, the General Court may decide to rule on the action without an oral part of the procedure. In this instance, since the Court considers that it has sufficient information available to it from the material in the file, it has decided, no such request having been made, to give a decision without taking further steps in the proceedings.

– annul Decision 2015/556 and Implementing Regulation 2015/549 in so far as those measures apply to the applicant;

20 In support of its action, the applicant puts forward seven pleas in law. The first plea alleges infringement of Article 266 TFEU. The second plea alleges abuse of process and breach of the principles of res judicata, legal certainty and the finality of judicial decisions. The third plea alleges 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 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’). The fourth plea alleges misuse of powers and breach of the principle of good administration. The fifth plea alleges infringement of the applicant’s fundamental rights, notably of its rights to property and respect for its reputation, and breach of the principle of proportionality. The sixth plea alleges infringement of the obligation to state reasons, and the seventh, in essence, a manifest error of assessment.

22 The applicant submits that the Council infringed Article 266 TFEU by adopting the re‑listing decision on different grounds from those set out in the original listing without eliminating the illegalities established by the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43). In accordance with Article 266 TFEU, the Council should have either corrected the deficiencies identified in that judgment or removed the applicant’s name from the lists.

23 Article 266 TFEU provides that an institution whose act has been declared void is to be required to take the necessary measures to comply with the judgment annulling that act.

24 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 whose act has been declared void only to take the necessary measures to comply with the judgment annulling that act. In addition, the institution which adopted the act 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).

25 Following annulment of the applicant’s first listing, it was for the Council to undertake, on the basis of Article 266 TFEU, a re‑examination of the facts in order to assess whether the applicant’s name should be re‑listed on the basis of new grounds that were supported to the requisite legal standard (see, to that effect, judgment of 25 June 2015, Iranian Offshore Engineering & Construction v Council, T‑95/14, EU:T:2015:433, paragraph 63 (not published) and the case-law cited).

26 It should be noted that, in the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), the Court found that the Council had not established that the applicant had provided support for nuclear proliferation or assisted other persons and entities to breach or avoid the restrictive measures to which they were subject, and, in consequence, it annulled the acts mentioned in paragraph 7 above in so far as they concerned the applicant.

27 The first plea must be considered to be based on a misinterpretation of Article 266 TFEU by the applicant. First, it must be noted that the removal of the applicant’s name from the lists is as a result of the judgment annulling the original listing, under which the acts annulled are retroactively erased from the legal order of the European Union.

28 Secondly, as is apparent from the case-law cited in paragraphs 24 and 25 above, Article 266 TFEU does not preclude the possibility of the Council re‑listing the applicant for reasons other than those on which the original listing was based.

29 Thus, following the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), the Council was entitled to decide to re‑list the applicant. The Court stated in that regard, in paragraph 73 of its judgment, that the Council could remedy the infringements established in the judgment ordering annulment by adopting new restrictive measures with respect to the applicant. The Court, moreover, maintained the effects of the original listing until the date of expiry of the period for bringing an appeal, in order to enable the Council to remedy in good time the irregularities established in that judgment and to avoid any harm to the effectiveness of any future fund-freezing measures that might be adopted with respect to the applicant.

30 The Council relied in the re‑listing decision on reasons and criteria that differed from those on which the original listing was based. The summary of reasons for the re‑listing decision is based on criteria relating, on the one hand, to the fact that the applicant provided support to the Government of Iran, as referred to in Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012, and, on the other hand, to the fact that it was involved in the procurement of prohibited goods and technology, as referred to in Article 20(1)(b) of Decision 2010/413 and Article 23(2)(a) of Regulation No 267/2012. Since the reasons given for the re‑listing decision were not included in the statement of reasons for the original listing, they were not reviewed by the Court in its judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43).

31 Furthermore, the judgment of 1 July 2009, ThyssenKrupp Stainless v Commission (T‑24/07, EU:T:2009:236, paragraph 141), relied on by the applicant to support its argument that Article 266 TFEU required the Council to eliminate the illegalities in the original listing established by the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), is not relevant in this instance. That judgment indicates that the judgment by which the act of an institution is declared void imposes on the institution only the obligation under Article 266 TFEU to eliminate the illegality in the measure intended to replace the annulled measure. In the present case, however, the re‑listing decision does not replace the original listing.

Second plea in law, alleging abuse of process and breach of the principles of res judicata, legal certainty and the finality of judicial decisions

33 The applicant claims that the re‑listing decision is an abuse of process and breaches the principles of res judicata, legal certainty and the finality of judicial decisions. It puts forward four arguments in that respect.

34 First, the applicant states that, in the re‑listing decision, the Council considered the applicant to have satisfied the criteria for designation under Decision 2010/413 and Regulation No 267/2012, whereas the General Court found in its judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43) that that was not the case. Secondly, the applicant indicates that the Council relied on the fact that the applicant was partly owned by the Government of Iran, whereas the Court, in its judgment, found that fact to be irrelevant and insufficient to justify the original listing. Thirdly, it is irrelevant that the re‑listing decision is ‘technically different’ from the original listing. Fourthly, the Council could not rely in the re‑listing decision on allegations that were not put before the General Court in the case giving rise to the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), when those allegations concern matters and conduct which could have been raised at the time of the original listing.

35 It should be noted that, according to settled case-law, annulment judgments given by the Courts of the European Union have the 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 3 October 2000, Industrie des poudres sphériques v Council, C‑458/98 P, EU:C:2000:531, paragraph 81, and of 1 July 2009, ThyssenKrupp Stainless v Commission, T‑24/07, EU:T:2009:236, paragraphs 113 and 140). A judgment annulling an act therefore means that the author of the act annulled must adopt a new act 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 the new act is not affected by the same irregularities as those identified in the judgment annulling the original act (see, to that effect, judgment of 6 March 2003, Interporc v Commission, C‑41/00 P, EU:C:2003:125, paragraphs 29 and 30).

36 First of all, as regards the applicant’s argument concerning the consequences of the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), it is sufficient to note that the fact that the Court ruled in that judgment that the Council had not established that the criteria on the basis of which the original listing decision was adopted were satisfied has no bearing on the validity of the re‑listing decision, which is based on different criteria. Further, contrary to what is claimed by the applicant, the re‑listing decision is not only ‘technically different’ from the original listing decision, but has another legal basis.

37 Next, as regards the applicant’s argument concerning the Iranian State’s minority shareholding in the applicant, the General Court held, in paragraph 59 of the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), that, failing concrete arguments on the part of the Council, the composition of the shareholders in the applicant did not lead to the conclusion that the applicant had provided support for nuclear proliferation or aided other persons and entities to breach or avoid restrictive measures against them. That finding has no bearing on whether the Council was entitled, following that judgment, to adopt the re‑listing decision on grounds that differed from those referred to in the original listing.

38 Lastly, as regards the applicant’s argument that, in essence, the Council was not entitled to base the re‑listing decision on reasons it could have put forward in the original listing, suffice it to note that a single reason is sufficient to justify the entry of a person’s or an entity’s name on the lists. The Council is therefore free to use the reason it considers the most relevant in order to justify its decision to enter the name of a person or entity on those lists for the first time, and any error that may have been made in selecting that reason cannot prevent the Council from subsequently using a reason it could have put forward in the first listing.

39 Furthermore, the applicant does not explain how the circumstance that certain facts were already available at the time of the original listing but were not relied on by the Council would be capable of vitiating the re‑listing decision. In that regard, it must be borne in mind that the General Court did not make any assessment of those facts in the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), and that, therefore, no conclusions can be drawn from that judgment as regards the Council’s ability to adopt the re‑listing decision on grounds attributable to those facts.

Third plea in law, alleging 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 and of Articles 6 and 13 of the ECHR

41 On the basis of the same arguments as those raised in connection with the second plea, the applicant submits that the re‑listing decision constitutes a breach of the principle of effectiveness and of the right to effective judicial protection, and an infringement of Article 47 of the Charter of Fundamental Rights and of Articles 6 and 13 of the ECHR.

42 It adds that the Council’s stance — of re‑listing an entity on the basis of amended reasons, no matter how old the conduct of which the entity is accused — has the effect that the action before the General Court is not an effective remedy. It further submits that there has been an infringement of its right to be heard within a reasonable time in so far as the proceedings that led to the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43) lasted two years and the Council can expect the present proceedings also to last two years.

43 The principle of effective judicial protection is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the ECHR and in Article 47 of the Charter of Fundamental Rights. The effectiveness of judicial review means that the EU authority in question is bound to disclose the grounds for a restrictive measure to the entity concerned, so far as possible, either when that measure is adopted or, at the very least, as swiftly as possible after its adoption, in order to enable the entity concerned to exercise, within the periods prescribed, its right to bring an action. Observance of that obligation to communicate the grounds is necessary both to enable the persons to whom restrictive measures are addressed to defend their rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in their applying to the Courts of the European Union, and also to put the latter fully in a position whereby they may carry out a review of the lawfulness of the measure in question, which is the duty of those Courts (judgments of 6 September 2013, Export Development Bank of Iran v Council, T‑4/11 and T‑5/11, not published, EU:T:2013:400, paragraph 77, and of 26 November 2015, HK Intertrade v Council, T‑159/13 and T‑372/14, not published, EU:T:2015:894, paragraph 82).

44 First of all, it will be recalled that the arguments put forward in connection with the second plea were rejected in paragraphs 36 to 39 above.

45 Next, as regards the argument concerning the effectiveness of the action before the General Court, it must be held that the re‑listing decision does not call in question the effectiveness of the action brought by the applicant which gave rise to the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43). That judgment resulted in the removal, retroactively, of the applicant’s name from the lists in the acts annulled, referred to in paragraph 7 above. Moreover, it should be borne in mind that it is apparent from the case-law cited in paragraphs 24 and 25 above that the annulment of an initial listing does not prevent the Council from adopting a further re‑listing decision on the basis of new grounds which are supported to the requisite legal standard.

46 Lastly, as regards the argument alleging infringement of the right to be heard within a reasonable time, it is sufficient to state that that argument is ineffective. The applicant cannot hold the Council responsible for the length of the proceedings before the General Court. In any event, following the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), the Council swiftly informed the applicant of its intention to re‑list it and disclosed to it the reasons for the re‑listing decision in sufficient time to enable the applicant to exercise its right to bring an action.

48 According to the applicant, the four sentences which the summary of reasons for the re‑listing decision comprises, mentioned in paragraph 9 above, constitute four allegations, three of which are insufficiently reasoned.

49 As regards the first allegation, the applicant submits that the Council did not sufficiently explain what ‘financial resources’ or ‘financial services’ the applicant was supposed to have provided to the Government of Iran, or when and to whom they were allegedly provided, or to what ‘oil and gas development projects’ they related.

50 As regards the second allegation, the applicant maintains that the Council did not sufficiently explain what ‘projects’ the applicant allegedly financed, or when and how, and that the Council did not specify which ‘subsidiaries of entities owned and controlled by the Government of Iran’ allegedly carried out those ‘projects’.

51 As regards the fourth allegation, the applicant submits that the Council did not sufficiently explain what ‘financing’ was allegedly provided by the applicant, or what the ‘various crude oil production and refining projects’ referred to were, or what ‘key equipment and technology’ had been used, or how its conduct allegedly related to ‘prohibited goods and technology’. The Council did not specify which ‘sectors’ were being referred to or how the applicant could be said to be ‘involved in the procurement of prohibited goods and technology’.

52 As regards the third allegation, concerning the Government of Iran’s minority shareholding in the applicant, the applicant states that it is not putting forward any arguments as the Council disclaimed the allegation in its letter of 8 April 2015.

53 According to a consistent body of case-law, the purpose of the obligation to state the reasons on which an act adversely affecting a person is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, secondly, to enable those Courts to review the legality of that act (see judgments of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 49 and the case-law cited, and of 8 September 2016, Iranian Offshore Engineering & Construction v Council, C‑459/15 P, not published, EU:C:2016:646, paragraph 23 and the case-law cited).

54 The statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. The reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him (judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraphs 53 and 54; see also judgment of 8 September 2016, Iranian Offshore Engineering & Construction v Council, C‑459/15 P, not published, EU:C:2016:646, paragraph 24 and the case-law cited).

55 As regards restrictive measures, without going so far as to require a detailed response to the comments made by the person concerned, the obligation to state reasons laid down in Article 296 TFEU entails in all circumstances, not least when the reasons stated for the EU measure represent reasons stated by an international body, that that statement of reasons identifies the individual, specific and concrete reasons why the competent authorities consider that the person concerned must be subject to restrictive measures. The Courts of the European Union must, therefore, in particular determine whether the reasons relied on are sufficiently detailed and specific (see judgments of 18 February 2016, Council v Bank Mellat, C‑176/13 P, EU:C:2016:96, paragraph 76 and the case-law cited, and of 8 September 2016, Iranian Offshore Engineering & Construction v Council, C‑459/15 P, not published, EU:C:2016:646, paragraph 25).

56 Lastly, it is important to point out that the question of the statement of reasons, which concerns an essential procedural requirement, is separate from that of the evidence of the alleged conduct, which concerns the substantive legality of the act in question and involves assessing the truth of the facts set out in that act and the characterisation of those facts as evidence justifying the use of restrictive measures against the person concerned (judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 60).

57 In the present case, it should be noted that the statement of reasons for the re‑listing decision is based on two separate grounds. The Council clearly stated that the applicant was considered, first, to be providing support to the Government of Iran and, secondly, to be involved in the procurement of prohibited goods and technology. In addition, in its letter of 12 March 2015, the Council specified that Article 20(1)(b) and (c) of Decision 2010/413 and Article 23(2)(a) and (d) of Regulation No 267/2012 constituted the legal bases of that decision.

58 It is apparent from this that the applicant misread the re‑listing decision when it identified four separate allegations as constituting the same number of reasons underpinning that decision.

59 As regards the first reason given in the re‑listing decision, relating to the applicant’s provision of support to the Government of Iran, the Council indicated in the re‑listing decision that the applicant was offering financial resources to the Government of Iran and that it was financing services for oil and gas development projects.

60 In the second sentence of the summary of reasons for the re‑listing decision, the Council explained that the oil and gas sector constituted a significant source of funding for the Government of Iran and that several projects financed by the applicant were carried out by subsidiaries of entities owned and controlled by the Government of Iran. In the third sentence, it stated that the applicant remained partly owned by and closely linked to the Government of Iran, which was therefore in a position to influence the applicant’s decisions, including its involvement in the financing of projects regarded by the Iranian Government as a high priority.

61 Those two sentences must be read as contextual information in the light of which the first reason for the re‑listing decision must be understood. They are not, contrary to what is maintained by the applicant, separate allegations from the first reason.

62 In that respect, the applicant cannot maintain that, in its letter of 8 April 2015, the Council declined to rely on the information included in the third sentence, concerning the Government of Iran’s shareholding in the applicant. In that letter, the Council merely indicated that it did not rely on the Government of Iran’s minority shareholding in the applicant as a basis for its re‑listing decision. In the same letter, the Council added that the Government of Iran’s shareholding put it in a position to influence the applicant’s decisions, including its involvement in the financing of oil and gas projects regarded by the Government of Iran as a high priority, and which the international community has identified as being of particular relevance to Iran’s nuclear proliferation activities.

63 In its letter of 12 March 2015, by which the Council informed the applicant of its intention to include the applicant’s name again on the lists, the Council sent the applicant the documents on which it based its re‑listing decision. Those documents include numerous press articles from various sources, which mention the applicant’s involvement in the financing of various oil and gas development projects in Iran.

64 In addition, in its letter of 16 March 2015, the Council also sent the applicant the Member State’s proposal. That proposal contains an analysis of the documents sent to the applicant on 12 March 2015 concerning the applicant’s involvement in the various projects described therein and explains why, according to that Member State, that involvement would justify using the reasons given in the re‑listing proposal.

65 The documents which the Council sent to the applicant on 12 March 2015 include, in particular:

– an article from the May 2012 issue of the magazine Iran Petroleum Monthly, in which the managing director of Iranian Offshore Oil Company (IOOC) stated that that undertaking had signed contracts for the development of offshore oilfields and that it had signed a 500 million US dollar (USD) deal with the applicant for renovation and optimisation of facilities;

– an article from the website of PRESS TV, from November 2012, also quoting the managing director of IOOC who mentioned the project to build Iran’s largest crude oil processing facility on Kharg Island (Iran) and stated that the proposed facility required a USD 500 million investment and would add 200 000 barrels per day to Iran’s crude oil processing capacity, the project being financed, inter alia, by the applicant;

– an article taken from the website of Shana, an Iranian press agency, from March 2011, in which the managing director of Petroleum Engineering and Development Company (PEDEC) announced the forthcoming signing of a contract for the development of the Darkhovin (Iran) oilfield, aimed at eventually raising crude oil production capacity to 260 000 barrels per day, and stated that the applicant would provide financial resources for the project;

– an article taken from the Shana website, from March 2011, in which the managing director of National Iranian Oil Company (NIOC) announced the issuing of bonds by Pars Oil and Gas Company, one of its subsidiaries, which would be offered, inter alia, by the applicant from March 2011 and which would be used to fund oil industry projects;

– an extract from the website of Pars Oil and Gas Company, dating from February 2012, in which the managing director of NIOC announced an increase in the number of bonds issued and that the new bonds would be available, inter alia, at all branches of the applicant;

– an article from the June 2013 issue of the magazine Iran Petroleum Monthly on Iran’s inauguration of 14 refinery projects, in which the managing director of Lavan Oil Refining Company indicated that the necessary credit for those projects had been provided, inter alia, by the applicant;

– an article from the PRESS TV website from June 2013 giving details of the increase in the refinery capacity of Lavan Oil Refining Company from 30 000 to 60 000 barrels per day with the launch of 14 new fuel production lines;

– an extract from the website of National Iranian Oil Refining and Distribution Company (NIORDC) indicating that Lavan Oil Refining Company is one of its subsidiaries;

– an article from the December 2012 issue of the magazine Iran Petroleum Monthly, containing an interview with the Iranian deputy minister for petrochemical affairs, indicating that the applicant was active in the petrochemical industry.

66 The documents sent to the applicant on 12 and 16 March 2015 form part of the context in which the re‑listing decision was adopted. They were sent to the applicant by the Council before the re‑listing decision was adopted, which the applicant does not dispute. However, it must be noted that, in its arguments relating to the inadequacy of the statement of reasons, the applicant does not take account of the content of those documents, even though it contests their veracity in the context of the seventh plea in law.

67 On reading those documents, it must be held that the applicant was in a position to understand precisely which oil and gas development projects in Iran the applicant was considered by the Council to have been involved in financing, and when those projects were envisaged. It was also in a position to understand that the financial services referred to in the grounds for the re‑listing decision concerned in particular the distribution of an oil company’s bonds.

68 Contrary to what is maintained by the applicant, those documents also made it possible to identify the various oil companies involved in those projects and their links with entities owned by the Government of Iran. Thus, the documents sent on 12 March 2015 showed that Pars Oil and Gas Company is a subsidiary of NIOC and that Lavan Oil Refining Company is a subsidiary of NIORDC. The Member State’s proposal also states that IOOC and PEDEC are subsidiaries of NIOC and indicates, moreover, that NIOC and NIORDC are entities which are respectively owned and controlled by the Government of Iran.

69 It is evident from this that the applicant was in a position to understand the individual, specific and concrete reasons why the Council considered that the applicant was providing support to the Government of Iran within the meaning of Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012.

70 As regards the second reason given in the re‑listing decision, relating to the applicant’s involvement in the procurement of prohibited goods and technology, the documents mentioned in paragraph 65 above indicate that the applicant was involved in the financing of various oil infrastructure development projects in Iran, such as the renovation of the offshore oilfields of IOOC, the construction of a crude oil processing facility on Kharg Island, the development of the Darkhovin oilfield and 14 refinery projects.

71 As stated in the Member State’s proposal, those projects necessarily imply the procurement of key equipment and technology in the exploration or production of oil and natural gas, refining, and liquefaction of natural gas which are considered prohibited goods under Articles 4 and 4a of Decision 2010/413 and Article 8 of Regulation No 267/2012.

72 It is apparent from this that the applicant was in a position to understand the individual, specific and concrete reasons why the Council considered that the applicant was involved in the procurement of prohibited goods and technology within the meaning of Article 20(1)(b) of Decision 2010/413 and Article 23(2)(a) of Regulation No 267/2012.

73 It must be concluded that the statement of reasons for the re‑listing decision is sufficient, in that it enables the applicant to understand the conduct of which it is accused, and the General Court to exercise its power of review.

75 As a preliminary point, the applicant submits that the Council is not entitled to rely on the first, second and fourth allegations made in the re‑listing decision, as no reasons have been given for them, and that the Council has disclaimed reliance on the third allegation. In that regard, it is sufficient to note that the examination of the sixth plea shows those arguments to be unfounded.

76 The seventh plea is essentially divided into two parts. The applicant submits, principally, that the re‑listing decision is based on allegations that are false and, in the alternative, that, should those allegations be correct, the listing criteria laid down by Decision 2010/413 and Regulation No 267/2012 are not met.

77 First, the applicant submits that the first allegation is false. It claims that, in his witness statement, the applicant’s managing director explained that the applicant had not provided support for the Iranian Government by offering financial resources and financing services for oil and gas development projects. According to the applicant, its managing director explained that the press articles from the magazine Iran Petroleum Monthly and the Shana press agency, on which the Council relied in order to establish that the applicant had entered into agreements with IOOC and PEDEC, and the article from the magazine Iran Petroleum Monthly according to which the applicant is allegedly active in the oil and gas industry, are erroneous. The applicant’s managing director also stated that the magazine Iran Petroleum Monthly is not a credible source, as it emanates from the Ministry of Oil. In addition, the fact that the bonds issued by Pars Oil and Gas Company are available at branches of the applicant does not, in the applicant’s submission, constitute the provision of financial resources for oil and gas projects, and the applicant had only a very limited role. The applicant adds that the Council erred in relying on an article from the magazine Iran Petroleum Monthly in order to establish that the applicant was providing financing to Lavan Oil Refining Company in June 2013.

78 Secondly, the applicant submits that the part of the second allegation according to which several projects which it financed are carried out by subsidiaries of entities owned and controlled by the Government of Iran is false.

79 Thirdly, the applicant indicates that the third allegation, that it is partly owned by the Government of Iran, is true but irrelevant, since the General Court found in its judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43) that that fact could not satisfy the listing criteria. Furthermore, relying on the witness statement of its managing director, the applicant takes issue with the assertion that the Government of Iran, holder of less than 20% of its shares, can influence the applicant’s decisions on the financing of oil and gas projects.

80 Fourthly, as regards the fourth allegation, the applicant states that it does not provide financing to crude oil production or refining projects and has not been involved in the procurement of prohibited goods and technology.

81 The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights requires, in particular, that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include or to maintain the name of a given person or entity on the lists of persons subject to sanctions, the Courts of the European Union are to ensure that that decision, which affects that person or entity individually, 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 the question 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).

82 It is the task of the competent EU 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, namely 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).

83 As a preliminary point, it must be noted that the applicant merely asserts that the grounds for the re‑listing decision are based on false allegations, and its arguments amount to simple denials of its involvement in the financing of oil and gas projects and in the procurement of prohibited goods and technology, unsupported by any evidence. In that regard, the applicant merely refers to the witness statement of its managing director, annexed to the application, which it is claimed explain that the Council’s allegations are false.

84 However, in accordance with settled case-law, the activity of the Court of Justice and of the General Court is governed by the principle of the unfettered assessment of the evidence, and it is only the reliability of the evidence before the Court which is decisive when it comes to the assessment of its value. In addition, in order to assess the probative value of a document, regard should be had to the credibility of the account it contains and, in particular, to the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable (see, to that effect, judgment of 27 September 2012, Shell Petroleum and Others v Commission, T‑343/06, EU:T:2012:478, paragraph 161 and the case-law cited).

85 It must be observed that the witness statement of the applicant’s managing director was made at the request of the applicant for the purpose of the present action and that, originating as it does from a person performing the duties of the applicant’s managing director, that witness statement cannot be described as being different from, and independent of, that of the applicant.

87 In the first place, as regards the first reason given in the re‑listing decision, relating to the provision by the applicant of financial support to the Government of Iran, the Council relied, in particular, on the documents referred to in paragraph 65 above in order to establish that the applicant had been involved in the financing of various oil facility development projects in Iran for various companies.

88 Thus, two articles, published in the magazine Iran Petroleum Monthly and on the PRESS TV website in 2012, contain consistent information about the applicant’s USD 500 million funding of an IOOC project for the renovation and expansion of the offshore crude oil processing facility on Kharg Island. A 2011 extract from the website of the Shana press agency mentions the applicant’s involvement in the funding of the development by PEDEC of the Darkhovin oilfield. An article published in the magazine Iran Petroleum Monthly in 2013 provides information about the applicant’s involvement in the funding of 14 refinery projects carried out by Lavan Oil Refining Company. A 2011 extract from the website of the Shana press agency and a 2012 extract from the website of Pars Oil and Gas Company indicate that the bonds issued by that company will be available in the branches of the applicant.

89 Those documents, which come from different sources, are based on interviews with the managing directors of the undertakings involved in those projects and contain specific information about the nature of the projects and the amounts invested. It must be held that those documents all show that the applicant is involved in the financing of the Iranian oil and gas industry.

90 The applicant has not put forward any argument that might call in question the content of those documents.

91 First of all, the applicant challenges the probative value of the magazine Iran Petroleum Monthly. It must, however, be noted that the magazine is published by the Iranian Ministry of Oil and its managing editor is an official from that Ministry. That fact, contrary to what the applicant and its managing director contend in the latter’s witness statement annexed to the application, is likely to reinforce the credibility of the information contained therein, rather than weaken it. In addition, since the Government of Iran owns 20% of the applicant’s share capital, those articles cannot be regarded as coming from a source that is unfavourable to the applicant and which would aim to denigrate it. Lastly, the articles on which the Council relied are excerpts from interviews with managing directors of undertakings active in the oil industry from which the projects funded by the applicant originate.

92 Next, it must be noted that the applicant has not put forward any argument that might call in question the veracity of the information contained in the various articles. In the application, it merely denies having signed the agreements mentioned in those articles and refers to the witness statement of its managing director.

93 As regards involvement in the financing of the IOOC project to renovate oil facilities on Kharg Island, in his witness statement, the applicant’s managing director states that no deal with IOOC was signed and refers to an internal, undated, letter from the applicant which, according to him, shows that that project was abandoned. However, the probative value of that document is highly questionable. Moreover, it is evident from its content that it is a letter from the management of the applicant’s credit department informing its deputy chief executive officer that, regarding the applicant’s cooperation in the Kharg Island project, it was not possible for the applicant to proceed with an assessment owing to the absence of certain documents and that, due to the applicant’s proposal for investment in the project and in order to prevent the receipt of documents from two departments of the bank in parallel, the assessment would be carried out by the investment department. Therefore, contrary to what is submitted by the applicant’s managing director, it cannot be inferred from that letter that the financing of the IOOC project was abandoned.

94 As regards involvement in the financing of PEDEC’s development of the Darkhovin oilfield, the applicant’s managing director merely asserts that the applicant has never provided project finance for PEDEC’s oil and gas projects and refers to an internal document of the applicant, dating from February 2015, which concerns offers of loans to PEDEC for the payment of staff salaries. Suffice it to note that the content of that document does not preclude the provision by the applicant of other financing to the same undertaking for the funding of other projects.

95 As regards involvement in the financing of 14 refinery projects carried out by Lavan Oil Refining Company, suffice it to note that the applicant’s managing director does no more than deny the applicant’s involvement in those projects.

96 As regards the issue of bonds by Pars Oil and Gas Company, neither the applicant nor its managing director, in his witness statement, dispute that those bonds were indeed sold in the applicant’s branches. They simply claim to have had a limited role, in so far as the applicant did not itself issue those bonds and did not buy any. Those arguments are not, therefore, capable of calling in question the applicant’s provision of financial services to Pars Oil and Gas Company with the aim of funding oil industry projects.

97 Lastly, in his witness statement, the applicant’s managing director disputes the applicant’s involvement in the funding of oil and gas development projects, on the basis of internal circulars of the applicant dated 3 November 2009 and 29 June 2010.

98 Those internal circulars originate from the applicant itself and have little probative value. Further, the circular dated 3 November 2009 from the applicant’s board of directors refers to the need to adopt measures to avoid suspicious banking and commercial activities, in the context notably of the fight against money-laundering and other violations of banking and financial rules. The circular dated 29 June 2010 from the applicant’s board of directors informs the various departments of the applicant that they are to avoid transactions with the entities designated by United Nations resolutions and by the European Union.

99 Thus, it should be noted that the content of those circulars is not capable of calling in question the applicant’s involvement in development projects in the oil and gas sector carried out by Iranian undertakings in Iran, as is evident from the documents on which the Council relied in adopting the re‑listing decision, which were sent to the applicant on 12 and 16 March 2015.

100 In any event, the 29 June 2010 circular contains a mere statement of intention. In addition, of the undertakings involved in the projects financed by the applicant, only PEDEC is subject to restrictive measures.

101 As to the procedure, mentioned by the applicant’s managing director in his witness statement, which is said to have been introduced by the applicant following the 29 June 2010 circular to ensure that it did not violate sanctions imposed by the European Union, suffice it to note that a simple assertion is being made, without any proof that that procedure did in fact exist or was actually introduced.

102 Furthermore, it must be stated that it is evident in particular from some of the documents mentioned in paragraph 65 above, sent to the applicant on 12 March 2015, and from the Member State’s proposal sent to the applicant on 16 March 2015, that IOOC, PEDEC and Pars Oil and Gas Company are subsidiaries of NIOC and that Lavan Oil Refining Company is a subsidiary of NIORDC. It is also evident that NIOC and NIORDC are undertakings that are owned by the Government of Iran.

103 The applicant has not put forward any argument that might call in question those facts or, therefore, the assertion in the re‑listing decision that numerous projects financed by the applicant were carried out by subsidiaries of entities owned and controlled by the Government of Iran.

104 Lastly, it must be noted that the applicant does not dispute being partly owned by the Government of Iran, which holds approximately 20% of its share capital.

105 As regards the applicant’s argument that that fact is not relevant following the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), it is sufficient to point out that the Court did not rule in that judgment on the relevance of that fact in the light of the criteria on which the re‑listing decision was based.

106 As regards the applicant’s argument challenging the assertion that the Government of Iran’s minority shareholding in the applicant enables the Government of Iran to influence the applicant’s decisions to finance projects in the oil and gas sector, suffice it to note that the applicant merely refers in the application to the witness statement of its managing director. Yet the applicant’s managing director also confines himself in his witness statement to simple, unsubstantiated denials.

107 In any event, it is apparent from the summary of reasons for the re‑listing decision that the Council did not rely exclusively on the fact that the applicant is partly owned by the Government of Iran; it also mentions that the applicant is closely linked to that government. In the documents sent to the applicant on 12 March 2015 and in the Member State’s proposal sent to the applicant on 16 March 2015, the Council did not rely exclusively on the Government of Iran’s direct 20% shareholding in the applicant in order to infer from that that the Government of Iran was in a position to influence the applicant’s decisions; it also took into account the Government’s indirect shareholding in the applicant through the entities it controls.

108 Accordingly, the documents sent to the applicant on 12 March 2015 include, in particular:

– the applicant’s 2014 annual report, according to which the Government of Iran holds 19.48% of shares in the applicant, the Justice shares brokerage Edalat holds 40%, and investment company Saba Tamin holds 9.88%;

– the constitution of the Justice shares brokerage Edalat, indicating that it is wholly owned by the Government of Iran;

– various documents showing that the investment company Saba Tamin is part of the Social Security Investment Company, which is a branch of the Social Security Organisation, which in turn is controlled by the Iranian State.

109 As stated in the Member State’s proposal, it is apparent from those documents that the Government of Iran holds, directly or indirectly, approximately 70% of the applicant’s share capital and that, for that reason, it is able to influence the applicant’s decisions, notably those concerning investment in projects it considers a priority.

110 It is apparent from the foregoing that the Council was entitled, without thereby making an error of fact or a manifest error of assessment, to find, on the basis of the documents sent to the applicant on 12 March 2015 and the Member State’s proposal, that the applicant was involved in the financing of various projects in the oil and gas sector.

111 In the second place, with regard to the second reason given in the re‑listing decision, relating to the applicant’s involvement in the procurement of prohibited goods and technology, the Council stated, in its letter of 12 March 2015, that the applicant was providing financing to crude oil production and refining projects which necessarily required the acquisition of key equipment and technology for those sectors.

112 As explained in the Member State’s proposal, IOOC’s projects for the development of offshore oilfields, PEDEC’s project for the development of the Darkhovin oilfield and the Lavan Oil Refining Company project for 14 new refineries necessarily imply the procurement of key equipment and technology in the exploration and production of oil and natural gas, refining, and the liquefaction of natural gas which are considered prohibited goods under Articles 4 and 4a of Decision 2010/413 and Article 8 of Regulation No 267/2012.

113 It is sufficient to note that, in the light of the conclusion in paragraph 110 above, the mere assertion by the applicant that it was not involved in the financing of crude oil production and refining projects cannot be accepted and, accordingly, cannot call in question the finding that the applicant was involved in the procurement of key equipment and technology for those sectors.

114 It is apparent from the foregoing that the Council was entitled, without thereby making an error of fact or a manifest error of assessment, to find, in the re‑listing decision, on the basis of the documents sent to the applicant on 12 and 16 March 2015 (i) that the applicant had financed projects in the oil and gas sector or services related to those projects, and (ii) that it had been involved in the procurement of prohibited goods and technology.

115 It follows from this that, assuming this first part of the plea to be admissible, taking into account the general nature of the arguments raised in the application and the fact that the applicant merely refers to the content of its managing director’s witness statement annexed to the application, it must be concluded that this first part of the plea must be rejected as unfounded.

Second part, put forward in the alternative, alleging a manifest error of assessment in the application of the listing criteria

116 The applicant submits that, even if the Council’s allegations in the re‑listing decision were correct, that decision does not satisfy the listing criteria laid down in Decision 2010/413 and Regulation No 267/2012.

117 First, according to the applicant, the Council is accusing it of, at most, indirect financial support to the Government of Iran, which does not satisfy the criterion in Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012, in accordance with the judgment of 3 July 2014, National Iranian Tanker Company v Council (T‑565/12, EU:T:2014:608, paragraphs 59 and 60).

118 Secondly, the applicant submits that it is not involved in the procurement of prohibited goods and technology and that its indirect role does not satisfy the criterion in Article 20(1)(b) of Decision 2010/413 and Article 23(2)(a) of Regulation No 267/2012. Furthermore, it maintains that that issue was settled by the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43).

119 Thirdly, the applicant claims that, following the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), the Council cannot rely on the Government of Iran’s shareholding in the applicant, which is not a listing criterion, and that that is why the Council disclaimed any such reliance in its letter of 8 April 2015.

120 As a preliminary point, the applicant’s last argument must be rejected, since, as has already been noted in paragraphs 37, 61 and 62 above, the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43) has no bearing as regards the criteria referred to in the re‑listing decision, and, moreover, the Government of Iran’s minority shareholding in the applicant is a piece of contextual information in the light of which the criteria applied by the Council should be read; it is not a criterion upon which the Council based its re‑listing decision.

121 In the first place, as regards the application of the criterion provided for in Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012, it should be borne in mind that those provisions provide for the funds of entities that provide support to the Government of Iran to be frozen.

122 It is apparent from the case-law that the concept of ‘support to the Government of Iran’ used by the EU legislature has enabled the criteria for designating persons or entities to whom fund-freezing measures are to be applied to be expanded to cover the activities specific to those persons or entities which, even if they do not, as such, have any direct or indirect link with nuclear proliferation, are nevertheless capable of encouraging it, by providing the Government of Iran with resources or facilities of a material, financial or logistical nature allowing it to pursue such proliferation (see judgments of 8 September 2016, Iranian Offshore Engineering & Construction v Council, C‑459/15 P, not published, EU:C:2016:646, paragraph 58 and the case-law cited, and of 29 April 2015, Bank of Industry and Mine v Council, T‑10/13, EU:T:2015:235, paragraph 80 and the case-law cited).

123 The existence of a link between the provision of support to the Government of Iran and the pursuit of nuclear proliferation activities is thus presumed by the applicable legislation, which is aimed at depriving the Government of Iran of its sources of revenue, in order to oblige it to end the development of its nuclear proliferation programme as a result of insufficient financial resources (judgment of 25 March 2015, Central Bank of Iran v Council, T‑563/12, EU:T:2015:187, paragraph 66; see also judgment of 29 April 2015, Bank of Industry and Mine v Council, T‑10/13, EU:T:2015:235, paragraph 83 and the case-law cited).

124 Recital 22 of Decision 2010/413 refers to United Nations Security Council Resolution 1929 (2010) and states that that resolution notes the potential connection between Iran’s revenues derived from its energy sector and the funding of Iran’s proliferation-sensitive nuclear activities.

125 First of all, the applicant does not dispute the fact that the oil and gas sector represents a source of significant revenue for the Government of Iran.

126 Next, it is apparent from the examination of the first part of the plea that the Council correctly considered the applicant to have been involved in the financing of several large-scale oil and gas projects in Iran, aimed at renovating certain facilities or establishing new ones. The applicant, moreover, does not dispute the quantitative significance of its involvement in the financing of those projects.

127 Lastly, certain of the documents mentioned in paragraph 65 above indicate, in particular, that the projects relating to the facilities of IOOC, PEDEC or Lavan Oil Refining Company will significantly increase the crude oil production and refining capacity of those facilities.

128 It is apparent from this that the applicant was involved in the direct funding of projects aimed at significantly increasing Iran’s crude oil production and refining capacity and thus to increase the Government of Iran’s revenues.

129 Therefore, contrary to what is maintained by the applicant, the Council did not make a manifest error of assessment in finding that the applicant was providing direct financial support to the Government of Iran.

130 In the second place, as regards the application of the criterion provided for in Article 20(1)(b) of Decision 2010/413 and Article 23(2)(a) of Regulation No 267/2012, it should be borne in mind that those provisions prescribe the freezing of the funds of entities that are engaged in, directly associated with, or providing support for, Iran’s proliferation-sensitive nuclear activities or for the development of nuclear weapon delivery systems, including through the involvement in procurement of prohibited goods and technology.

131 Article 8(1) of Regulation No 267/2012 lays down a prohibition on selling, supplying, transferring or exporting key equipment or technology listed in Annexes VI and VIA to that regulation, directly or indirectly, to any Iranian person, entity or body, or for use in Iran. According to Article 8(2) of that regulation, Annexes VI and VIA list key equipment and technology for key sectors of the oil and gas industry in Iran. It is apparent from those provisions that the concept of ‘procurement of prohibited goods and technology’, within the meaning of Article 23(2) of that regulation, extends to the procurement of key equipment and technology for key sectors of the oil and gas industry in Iran (see, by analogy, judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 77).

132 Articles 4 and 4a of Decision 2010/413 and Article 8 of Regulation No 267/2012 refer to key equipment and technology for the key sectors of the oil and gas industry in Iran which concern the exploration and production of crude oil and natural gas, refining, and the liquefaction of natural gas, as well as key equipment and technology for the petrochemical industry in Iran.

133 Suffice it to note that the Council did not make a manifest error of assessment in concluding that, since the applicant was financing projects designed to increase the crude oil production capacity of several facilities, or projects for the development of new refineries, it was directly involved in the procurement of equipment necessary for those facilities.

134 Lastly, it must be pointed out that, contrary to what is claimed by the applicant, the Court did not rule on the application of that criterion in the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43).

135 Consequently, in finding that the applicant had been involved to a quantitatively significant extent in the financing of various oil and gas projects, the Council was entitled, without thereby making a manifest error of assessment, to re‑list the applicant on the basis of the criterion of providing support to the Government of Iran and of the criterion of involvement in the procurement of prohibited goods and technology, referred to, on the one hand, in Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012 and, on the other, in Article 20(1)(b) of Decision 2010/413 and Article 23(2)(a) of Regulation No 267/2012.

136 It follows that the second part of the plea must be rejected, as, therefore, must the seventh plea in law in its entirety.

Fourth plea in law, alleging misuse of powers and breach of the principle of good administration

137 In the fourth plea, the applicant submits, on the basis of the same arguments as those put forward in connection with the second plea, that, in adopting the re‑listing decision, the Council misused its powers and breached the principle of good administration. The applicant adds that the Council did not treat it either impartially or fairly, and that the Council is seeking to circumvent the judgment of 22 January 2015, Bank Tejarat v Council (T‑176/12, not published, EU:T:2015:43), which annulled the original listing, with the aim of imposing sanctions on it. It maintains that, having failed to make all its allegations in the original listing, the Council has extended the time taken to handle its ‘affairs’ and required the applicant to bring a new action before the Court, in breach of the applicant’s right to have its ‘affairs’ dealt with within a reasonable time and in breach of the duty of good administration.

138 According to the case-law, a measure is vitiated by misuse of powers only if it appears on the basis of objective, relevant and consistent evidence to have been taken with the exclusive or main purpose of achieving an end other than that stated or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see judgment of 14 October 2009, Bank Melli Iran v Council, T‑390/08, EU:T:2009:401, paragraph 50 and the case-law cited).

139 Moreover, in the context of the adoption of restrictive measures, the Council is under an obligation to observe the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights, which, according to settled case-law, entails the obligation for the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see judgment of 30 June 2016, Al Matri v Council, T‑545/13, not published, EU:T:2016:376, paragraph 58 and the case-law cited).

140 As a preliminary point, it should be pointed out that the arguments put forward in connection with the second plea were rejected in paragraphs 36 to 39 above.

141 As regards the argument alleging misuse of powers, the applicant submits that the only objective of the re‑listing decision was to impose sanctions on it. It should, however, be borne in mind that restrictive measures are not sanctions but are preventive in nature.

142 According to the case-law, fund-freezing measures taken against a person or an entity, on the basis of the provisions relating to the common foreign and security policy, constitute targeted preventive measures for countering threats to international peace and security, in the framework of implementation of United Nations Security Council resolutions. Adoption of such measures falls strictly within the framework of the legal conditions established by a decision adopted on the basis of Article 29 TEU and by a regulation founded on Article 215(2) TFEU implementing that decision within the scope of the FEU Treaty. By their precautionary nature and their preventive purpose, those measures can be distinguished in particular from criminal penalties (judgments of 12 June 2013, HTTS v Council, T‑128/12 and T‑182/12, not published, EU:T:2013:312, paragraph 42; of 6 September 2013, Bateni v Council, T‑42/12 and T‑181/12, not published, EU:T:2013:409, paragraph 39; and of 16 July 2014, National Iranian Oil Company v Council, T‑578/12, not published, EU:T:2014:678, paragraph 105).

143 It should be observed that, inasmuch as the funds of the persons and entities to which the restrictive measures provided for by Regulation No 267/2012 apply have not been confiscated as the proceeds of crime but rather frozen as a precautionary measure, those restrictive measures do not constitute criminal sanctions. Nor, likewise, do they imply any accusation of a criminal nature (judgment of 14 October 2009, Bank Melli Iran v Council, T‑390/08, EU:T:2009:401, paragraph 111).

144 Furthermore, the examination of the seventh plea shows that, in re‑listing the applicant on the grounds that the applicant had provided support to the Government of Iran and had been involved in the procurement of prohibited goods and technology, the Council correctly applied the criteria laid down, on the one hand, in Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012 and, on the other, in Article 20(1)(b) of Decision 2010/413 and Article 23(2)(a) of Regulation No 267/2012. Thus, the re‑listing decision is aimed at implementing the objectives of those provisions.

145 As regards the argument alleging breach of the principle of good administration, the applicant again criticises the Council, in essence, for not having included the grounds underpinning the re‑listing decision in the original listing. In that regard, suffice it to note that it is apparent from paragraph 38 above that the Council has a discretion to select from among the grounds capable of underpinning its decision the ground that appears to it to be the most relevant.

Fifth plea in law, alleging infringement of fundamental rights, notably of the right to property and the right to respect for reputation, and breach of the principle of proportionality

147 The applicant submits that the re‑listing decision constitutes a disproportionate infringement of its fundamental rights, notably of its right to property and the right to respect for its reputation. First, it alleges an infringement that is disproportionate in relation to the reasons for the re‑listing decision, which are not substantiated. Secondly, it maintains that imposing restrictive measures on it will put no pressure on the Government of Iran and that the re‑listing decision was adopted after the signing of the framework agreement of 2 April 2015 for sanctions relief with respect to Iran. Thirdly, the re‑listing decision constitutes, according to the applicant, an interference with its right to respect for its reputation which is not ‘in accordance with the law’. The applicant submits that that decision will result in disproportionate interference with its reputation in so far as the applicant is wrongly presented as being part of the Government of Iran, when it is in fact a private bank, and as having an influential role in nuclear proliferation. Fourthly, the applicant claims that the re‑listing decision constitutes a disproportionate interference with its right to property.

148 According to settled case-law, the fundamental rights invoked by the applicant, that is the right to property and the right to respect for its reputation, do not enjoy absolute protection under EU law. Consequently, the exercise of those rights may be restricted, provided that those restrictions in fact correspond to objectives of public interest pursued by the European Union and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the rights so guaranteed (see, to that effect, judgments of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 121, and of 25 June 2015, Iranian Offshore Engineering & Construction v Council, T‑95/14, EU:T:2015:433, paragraph 59 (not published)).

149 Moreover, according to settled case-law, the principle of proportionality is one of the general principles of EU law and requires that measures implemented through provisions of EU law be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (judgments of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 122, and of 25 June 2015, Iranian Offshore Engineering & Construction v Council, T‑95/14, EU:T:2015:433, paragraph 60 (not published)).

150 It is certainly the case that the applicant’s rights are curtailed to a certain extent by the restrictive measures adopted against it, since it cannot, in particular, dispose of any funds that may be situated within the territory of the European Union or held by its nationals, or transfer its funds to the European Union, except with special authorisation. Likewise, the measures imposed on the applicant may cause its partners and customers to regard it with a certain suspicion or mistrust.

151 However, it is evident from the examination of the seventh plea that the Council correctly re‑listed the applicant on the basis of the criteria of providing support to the Government of Iran and involvement in the procurement of prohibited goods and technology.

152 With regard to the criterion of providing support to the Government of Iran, it is apparent from the case-law cited in paragraph 123 above that this meets the objective of combating nuclear proliferation.

153 To the extent that the re‑listing decision is founded on the criterion of providing support to the Government of Iran, it is justified by an objective of public interest which consists in depriving the Government of Iran of all financial facilities or resources that allow it to pursue nuclear proliferation, irrespective of whether the persons or entities providing those facilities or resources are supporting nuclear proliferation themselves.

154 With regard to the criterion of involvement in the procurement of prohibited goods and technology, first of all, it must be emphasised that the Council wished to increase pressure on the Islamic Republic of Iran by broadening the scope of the restrictive measures adopted against that State, in accordance with the resolutions of the United Nations Security Council. To that end, additional restrictive measures were adopted, targeting, inter alia, the energy sector and, in particular, the oil and gas industry. Recital 22 of Decision 2010/413, which refers to United Nations Security Council Resolution 1929 (2010), notes the potential connection between the Islamic Republic of Iran’s revenues derived from its energy sector and the funding of its proliferation-sensitive nuclear activities, and mentions that chemical process equipment and materials required for the petrochemical industry have much in common with those required for certain sensitive nuclear fuel cycle activities (judgment of 19 November 2015, North Drilling v Council, T‑539/14, not published, EU:T:2015:871, paragraph 43).

155 Next, on account of that connection between the energy sector and the development of the Islamic Republic of Iran’s nuclear programme, the Council recalled, in recital 8 of Decision 2012/35, the need to prohibit the sale, supply or transfer to Iran of key equipment and technology which could be used in key sectors of the oil and natural gas industry or in the petrochemical industry (judgment of 19 November 2015, North Drilling v Council, T‑539/14, not published, EU:T:2015:871, paragraph 44).

156 It is clear from Decision 2010/413 and Regulation No 267/2012 that the oil and gas industry in Iran may be subjected to restrictive measures, particularly where it is involved in the procurement of prohibited goods and technology, the link between those goods and technology and nuclear proliferation being established by the EU legislature in the general rules of the relevant provisions (judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 76).

157 Accordingly, to the extent that the re‑listing decision is founded on the criterion of involvement in the procurement of prohibited goods and technology, it is justified by an objective of public interest.

158 The objective of Decision 2010/413 and Regulation No 267/2012 is to prevent nuclear proliferation and so to bring pressure to bear on the Islamic Republic of Iran to put an end to the activities in question. That objective forms part of a more general framework of endeavours linked to the maintenance of international peace and security and is, therefore, legitimate.

159 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.

160 In addition, the restrictions on the applicant’s right to property cannot be regarded as disproportionate since they concern, at most, only part of its assets and Decision 2010/413 and Regulation No 267/2012 provide for certain exceptions allowing entities affected by fund-freezing measures to meet essential expenditure.

161 Lastly, it should be noted that the Council does not claim in the re‑listing decision that the applicant is itself involved in nuclear proliferation. Hence, since the applicant is not personally associated with behaviour posing a risk to international peace and security, the degree of mistrust towards it is accordingly lower. Moreover, the applicant does not explain why being considered to be partly owned by the Government of Iran would be damaging to its reputation.

162 Furthermore, as regards the applicant’s argument concerning the signing of a framework agreement with Iran, suffice it to note, as does the Council, that the re‑listing decision was adopted before the Joint Plan of Action was signed on 14 July 2015, and that the framework agreement mentioned by the applicant has no bearing on the individual restrictive measures.

163 It follows from the foregoing that the re‑listing decision does not constitute disproportionate interference with the applicant’s right to property or respect for its reputation.

166 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. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Council, in accordance with the form of order sought by the Council.

Second plea in law, alleging abuse of process and breach of the principles of res judicata, legal certainty and the finality of judicial decisions

Second part, put forward in the alternative, alleging a manifest error of assessment in the application of the listing criteria

Fourth plea in law, alleging misuse of powers and breach of the principle of good administration

Fifth plea in law, alleging infringement of fundamental rights, notably of the right to property and the right to respect for reputation, and breach of the principle of proportionality

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Bank Tejarat v Council (External relations : Common foreign and security policy External relations : Common foreign and security policy - Judgment) [2017] EUECJ T-346/15 (14 March 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T34615.html Cite as: EU:T:2017:164, ECLI:EU:T:2017:164, [2017] EUECJ T-346/15

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