متن کامل رای دادگاه اروپا برای تجدید نظر خواهی سرمایه گذاری بانک ملی و سه شرکت سیمانی+به زبان اصلی

دادگاه اروپا حکم درخواست تجدید نظر شرکت سرمایه گذاری بانک ملی، بانک کارگشایی و پنج شرکت دیگر ایرانی را صادر کرد.

کد خبر: ۳۷۱۸۱

تاریخ: ۲۶ شهريور ۱۳۹۲ - ۰۱:۰۵

به گزارش ایران اکونومیست ،بر اساس این حکم، تقاضای تجدید نظر این شرکت ها رد شده است، اما از آنجا که شورای اروپا شواهد و مدارک لازم را پیش از آغاز روند تجدیدنظر در اختیار وکلای طرف ایرانی قرار نداده بود، این شورا باید هزینه تجدیدنظرخواهی بانک های ایرانی را بپردازد.

این حکم در مورد درخواست تجدید نظر بانک کارگشایی، شرکت سرمایه گذاری بانک ملی ایران، شرکت چاپ و انتشارات بانک ملی، شرکت سیمان مازندران، شرکت سیمان شمال، شرکت ملی شیمی کشاورز و شرکت توسعه و سرمایه گذاری سیمان صادر شده است.

متن زیر که در روز دوشنبه 25 شهریور ماه منتشر شده حاکی از حکم دادگاه تجدید نظر خواهی شرکت های مذکور می باشد که به زیان انگلیسی منتشر شده است.

(Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Obligation to state reasons – Rights of the defence – Right to effective judicial protection – Legitimate expectations – Review of the restrictive measures adopted – Error of assessment – Equal treatment – Legal basis – Essential procedural requirements – Proportionality – Right to property)

In Case T‑8/11,

Bank Kargoshaei,established in Tehran (Iran),

Bank Melli Iran Investment Company,established in Tehran,

Bank Melli Iran Printing and Publishing Company,established in Tehran,

Cement Investment&Development Co.,established in Tehran,

Mazandaran Cement Company,established in Tehran,

Melli Agro-chemical Company,established in Tehran,

Shomal Cement Co.,established in Tehran,

represented initially by L.Defalque and S.Woog, and subsequently by L.Defalque and C.Malherbe, lawyers,

applicants,

v

Council of the European Union,represented by M.Bishop and R.Liudvinaviciute-Cordeiro, acting as Agents,

defendant,

supported by

European Commission,represented by F.Erlbacher and M.Konstantinidis, acting as Agents,

intervener,

APPLICATION, first, for annulment in part of Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L281, p.81); of Council Regulation (EU) No961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No423/2007 (OJ 2010 L281, p.1); of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP (OJ 2011 L319, p.71); of Council Implementing Regulation (EU) No1245/2011 of 1 December 2011 implementing Regulation No961/2010 (OJ 2011 L319, p.11); and of Council Regulation (EU) No267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation No961/2010 (OJ 2012 L88, p.1); and, secondly, for annulment of any future regulation or decision in force as at the date of closure of the oral procedure which supplements or amends any of the contested measures,

THE GENERAL COURT (Fourth Chamber),

composed of I.Pelikánová (Rapporteur), President, K.Jürimäe and M.van der Woude, Judges,

Registrar: N.Rosner, Administrator,

having regard to the written procedure and further to the hearing on 17 April 2013,

gives the following

Judgment

Background to the dispute

1The applicants, Bank Kargoshaei, Bank Melli Iran Investment Company (‘BMIIC’), Bank Melli Iran Printing and Publishing Company (‘BMIPPC’), Cement Investment&Development Co. (‘CIDCO’), Mazandaran Cement Company, Melli Agro-chemical Company and Shomal Cement Co., are Iranian companies.

2Bank Melli Iran (‘BMI’) is an Iranian commercial bank owned by the Iranian State.

3The present case has been brought in connection with the restrictive measures introduced in order to apply pressure on the Islamic Republic of Iran to end proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems (‘nuclear proliferation’).

4BMI’s name was entered on the list in Annex II to Council Common Position 2007/140/CFSP of 27 February 2007 concerning restrictive measures against Iran (OJ 2007 L61, p.49) by means of Council Common Position 2008/479/CFSP of 23 June 2008 amending Common Position 2007/140 (OJ 2008 L163, p.43).

5Consequently, BMI’s name was entered on the list in Annex V to Council Regulation (EC) No423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L103, p.1) by means of Council Decision 2008/475/EC of 23 June 2008 implementing Article 7(2) of Regulation No423/2007 (OJ 2008 L163, p.29), as a result of which its funds were frozen.

6BMI brought an action before the General Court in which it sought, in essence, to have the listing of its name in Annex V to Regulation No423/2007 annulled. The action was dismissed by judgment of the General Court of 14 October 2009 in Case T‑390/08Bank Melli IranvCouncil[2009] ECR II‑3967.

7Following the adoption of Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L195, p.39), the names of BMI and the applicants were listed in Annex II to that decision. The following reasons were given in regard to BMI:

‘Providing or attempting to provide financial support for companies which are involved in or procure goods for Iran’s nuclear and missile programmes (AIO, SHIG, SBIG, AEOI, Novin Energy Company, Mesbah Energy Company, Kalaye Electric Company and DIO). [BMI] serves as a facilitator for Iran’s sensitive activities. It has facilitated numerous purchases of sensitive materials for Iran’s nuclear and missile programmes. It has provided a range of financial services on behalf of entities linked to Iran’s nuclear and missile industries, including opening letters of credit and maintaining accounts. Many of the above companies have been designated by [United Nations Security Council Resolutions] 1737(2006) and 1747(2007). [BMI] continues in this role, by engaging in a pattern of conduct which supports and facilitates Iran’s sensitive activities. Using its banking relationships, it continues to provide support for, and financial services to, UN and EU listed entities in relation to such activities. It also acts on behalf of, and at the direction of such entities, including Bank Sepah, often operating through their subsidiaries and associates.’

8As regards the applicants, which were listed as ‘subsidiaries’ of BMI, the following reasons were given in Decision 2010/413:

–Bank Kargoshaei was identified as being ‘owned by [BMI]’;

–BMIIC was identified as being ‘[a]ffiliated with entities sanctioned by the United States, the European Union or the United Nations since 2000’ and ‘[d]esignated by the United States for being owned or controlled by [BMI]’;

–BMIPPC was identified as being ‘[d]esignated by the United States for being owned or controlled by [BMI]’;

–CIDCO was identified as being ‘[w]holly owned by Bank Melli Investment Co. Holding Company to manage all cement companies owned by BMIIC’;

–Mazandaran Cement Company was identified as being a ‘Tehran-based cement company majority-owned by CIDCO’ and ‘[i]nvolved in large-scale construction projects’;

–Melli Agro-chemical Company was identified as being ‘[o]wned or controlled by [BMI]’;

–Shomal Cement Co. was identified as a company which is ‘[o]wned or controlled by, or acts on behalf of [the Defence Industries Organisation].’

9The applicants’ names were included in Annex V to Regulation No423/2007 by Council Implementing Regulation (EU) No668/2010 of 26 July 2010 implementing Article 7(2) of Regulation No423/2007 (OJ 2010 L195, p.25). The inclusion of BMI in that annex was not affected by the adoption of that implementing regulation. The reasons stated in regard to the applicants are essentially identical to those stated in Decision 2010/413.

10By letters sent between 7 and 22 September 2010, the applicants submitted their observations to the Council of the European Union and requested that the Council reconsider the decision to include their names in the list in Annex II to Decision 2010/413 and in that in Annex V to Regulation No423/2007. They argued, in particular, that they were independent of BMI, that their activities were unrelated to nuclear proliferation and that the adoption of the restrictive measures was causing them significant harm. Mazandaran Cement Company further claimed that the assertion that it was majority-owned by CIDCO was incorrect. Likewise, Shomal Cement Co. denied that it was owned or controlled by the Defence Industries Organisation (‘DIO’).

11The listing of BMI and the applicants in Annex II to Decision 2010/413 was maintained by Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L281, p.81).

12Since Regulation No423/2007 was repealed by Council Regulation (EU) No961/2010 of 25 October 2010 on restrictive measures against Iran (OJ 2010 L281, p.1), the names of BMI and the applicants were included by the Council in Annex VIII to the latter regulation. Consequently, the applicants’ funds and economic resources were frozen pursuant to Article 16(2) of that regulation.

13The reasons stated in Decision 2010/644 and Regulation No961/2010 in regard to BMI, Bank Kargoshaei, BMIIC, BMIPPC, CIDCO and Melli Agro-chemical Company are the same as those set out in Decision 2010/413. Mazandaran Cement Company and Shomal Cement Co. are described as being controlled by BMI.

14By letters of 28 October 2010 the Council informed the applicants that their names would continue to be listed in Annex II to Decision 2010/413 and would be included in the list in Annex VIII to Regulation No961/2010. It stated that there was no new evidence to justify the lifting of the restrictive measures concerning the applicants.

15By letter of 27 December 2010, the applicants requested access to the Council’s file.

16By letters of 22 February and 8 March 2011, the Council disclosed to the applicants the proposals for the adoption of restrictive measures concerning them.

17By letter of 29 July 2011, the applicants asked the Council to reconsider the decision to retain their names on the list in Annex II to Decision 2010/413 and on that in Annex VIII to Regulation No961/2010. In that respect, they noted that BMI denied its involvement in nuclear proliferation and that their individual situations should be assessed in the light of the circumstances of the case.

18By judgment of 16 November 2011 in Case C‑548/09PBank Melli IranvCouncil[2011] ECR I‑0000, the Court of Justice dismissed the appeal brought by BMI against the judgment in Case T‑390/08Bank Melli IranvCouncil, paragraph 6 above.

19The listing of the names of BMI and the applicants in Annex II to Decision 2010/413 and in Annex VIII to Regulation No961/2010 was not affected by the entry into force of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413 (OJ 2011 L319, p.71) and Council Implementing Regulation (EU) No1245/2011 of 1 December 2011 implementing Regulation No961/2010 (OJ 2011 L319, p.11).

20By letter of 5 December 2011 the Council informed the applicants that their names would continue to be listed in Annex II to Decision 2010/413 and in Annex VIII to Regulation No961/2010. It stated that the observations submitted by the applicants on 29 July 2011 did not justify the lifting of the restrictive measures to which they were subject, given that they did not deny being owned or controlled by BMI and that BMI had provided financial services to entities involved in nuclear proliferation.

21By letter of 16 January 2012 the applicants requested access to the evidence relating to the adoption and maintenance of the restrictive measures against them. The Council replied by letter of 21 February 2012, enclosing three documents relating to the procedure for the adoption of restrictive measures.

22Since Regulation No961/2010 was repealed by Council Regulation (EU) No267/2012 of 23 March 2012 concerning restrictive measures against Iran (OJ 2012 L88, p.1), the names of BMI and the applicants were included by the Council in Annex IX to the latter regulation. The reasons stated in regard to BMI and the applicants are the same as those set out in Regulation No961/2010. Consequently, the applicants’ funds and economic resources are frozen pursuant to Article 23(2) of Regulation No267/2012.

Procedure and forms of order sought

23By application lodged at the Court Registry on 7 January 2011, the applicants brought the present action.

24By document lodged at the Court Registry on 20 April 2011, the European Commission sought leave to intervene in the present proceedings in support of the Council. By order of 9 June 2011 the President of the Fourth Chamber of the General Court granted leave to intervene.

25By document lodged at the Court Registry on 15 February 2012, the applicants amended their heads of claim following the adoption of Decision 2011/783, Implementing Regulation No1245/2011, Council Decision 2012/35/CFSP of 23 January 2012 amending Decision 2010/413 (OJ 2012 L19, p. 22), Council Implementing Regulation (EU) No54/2012 of 23 January 2012 implementing Regulation No961/2010 (OJ 2012 L19, p.1), and Council Regulation (EU) No56/2012 of 23January 2012 amending Regulation No961/2010 (OJ 2012 L19, p.10).

26By document lodged at the Court Registry on 30 July 2012, the applicants amended their heads of claim following the adoption of Regulation No267/2012. Moreover, they applied for the annulment of any future regulation or decision in force as at the date of closure of the oral procedure which supplements or amends any of the contested measures.

27By order of the President of the Fourth Chamber of the General Court of 5 March 2013, Cases T‑35/10, T‑7/11 and T‑8/11 were joined for the purposes of the oral procedure, in accordance with Article 50 of the Rules of Procedure of the General Court.

28Upon hearing the report of the Judge-Rapporteur, the Court (Fourth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure provided for under Article 64 of the Rules of Procedure, put questions to the parties in writing. The parties replied to the Court’s questions within the prescribed period.

29The parties presented oral argument and answered the written and oral questions put by the Court at the hearing on 17 April 2013.

30In their written pleadings, the applicants claim that the Court should:

–annul point 5 of Part B of the annex to Decision 2010/644, point 5 of Part B of Annex VIII to Regulation No961/2010, Decision 2011/783, Implementing Regulation No1245/2011, Decision 2012/35, Implementing Regulation No54/2012, Regulation No56/2012, and point 5 of Part I.B of Annex IX to Regulation No267/2012, in so far as they concern the applicants;

–annul the Council’s decisions notified to the applicants by letters from the Council of 28 October 2010 and 5 December 2011;

–declare that Article 20(1)(b) of Decision 2010/413 and Article 16(2)(a) of Regulation No961/2010 do not apply to the applicants;

–annul any future regulation or decision in force as at the date of closure of the oral procedure which supplements or amends any of the contested measures;

–order the Council to pay the costs.

31At the hearing, the applicants withdrew their action in so far as it sought annulment of Decision 2012/35, Implementing Regulation No54/2012 and Regulation No56/2012. Moreover, they stated that their second head of claim was in fact indissociable from the first head of claim, and that they were therefore abandoning their action in so far as it sought annulment of the letters of 28 October 2010 and 5 December 2011.

32The Council, supported by the Commission, contends that the Court should:

–dismiss the action;

–order the applicants to pay the costs.

Law

33As a preliminary point, it must be noted that the third head of claim, seeking a declaration that Article 20(1)(b) of Decision 2010/413 and Article 16(2)(a) of Regulation No961/2010 do not apply to the applicants, is in fact indissociable from the arguments contesting the lawfulness of Decision 2010/413 and Regulation No961/2010 put forward in support of the applicants’ first head of claim. Consequently, the third head of claim need not be examined separately by the Court.

34In support of their first head of claim, the applicants rely on five pleas in law in their written pleadings. The first plea alleges infringement of Article 215TFEU and Article 40TEU, and breach of the principle of equal treatment. The second plea alleges error of law as regards the legal basis for Decision 2010/644 and Regulation No961/2010. The third plea alleges breach of the obligation to state reasons, of BMI’s and the applicants’ rights of defence, of their right to effective judicial protection, of the principles of sound administration and protection of legitimate expectations, and of the Council’s obligation to review the restrictive measures adopted, in the light of the observations made. The fourth plea alleges error of assessment as regards the Council’s view that the applicants should be subject to restrictive measures. The fifth plea alleges breach of the principle of proportionality and of the applicants’ right to property owing to the Council’s failure to take into account the resolutions of the United Nations Security Council.

35At the hearing, the applicants also submitted that Regulation No267/2012 was not notified to them individually.

36The Council and the Commission contest the merits of the applicants’ pleas. The Council maintains, moreover, that Bank Kargoshaei, at least, is an emanation of the Iranian State and cannot therefore take advantage of fundamental rights protection and guarantees. The Council also relies on the inadmissibility of the applicants’ fourth head of claim.

37The Court must examine not only the parties’ pleas in law and arguments but also whether the applicants’ requests to amend the form of order sought are admissible.

Admissibility

The applicants’ requests to amend the form of order sought

38According to the case-law, when a decision or a regulation of direct and individual concern to an individual is replaced, during the proceedings, by another measure with the same subject-matter, this is to be considered a new factor allowing the applicant to adapt its claims and pleas in law. It would be contrary to the principle of due administration of justice and to the requirements of procedural economy to oblige the applicant to make a fresh application. Moreover, it would be inequitable if the institution in question were able, in order to counter criticisms of a measure, contained in an application to the Courts of the European Union, to amend the contested measure or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending his original pleadings to the later measure or of submitting supplementary pleadings directed against that measure (see, by analogy, Case T‑256/07People’s Mojahedin Organization of IranvCouncil[2008] ECR II‑3019, paragraph 46 and the case-law cited).

39The same conclusion applies in respect of measures, such as Decision 2011/783 and Implementing Regulation No1245/2011, which, without repealing an earlier measure, maintain an entity’s entry on the lists of entities subject to restrictive measures, following a review procedure expressly required by the relevant legislation.

40However, in order to be admissible, a request to amend the form of order sought must be submitted within the time-limit for bringing proceedings laid down in the sixth paragraph of Article 263TFEU. It has consistently been held that the time-limit for bringing proceedings is mandatory and must be applied by the Courts of the European Union in such a way as to safeguard legal certainty and equality of persons before the law (Case C‑229/05PPKK and KNKvCouncil[2007] ECRI‑439, paragraph 101). It is thus for the Courts to verify, if necessary of their own motion, whether that time-limit has been observed (order of 11 January 2012 in Case T‑301/11Ben AlivCouncil, not published in the ECR, paragraph 16).

41In that regard, it must be borne in mind that, according to the case-law, the principle of effective judicial protection means that the European Union authority which adopts individual restrictive measures against a person or entity is bound to communicate the grounds on which those measures are based, either when those measures are adopted or, at the very least, as swiftly as possible after their adoption, in order to enable those persons or entities to exercise their right to bring an action (see, to that effect, Case C‑548/09PBank Melli IranvCouncil, paragraph 18 above, paragraph 47 and the case-law cited).

42It follows from this that the time-limit for bringing an action for annulment of an act imposing restrictive measures on a person or entity starts to run only from the date on which that act is notified to the interested party. Likewise, the time-limit for submitting a request to extend the pleadings to an act which maintains such measures starts to run only from the date on which that new act is notified to the person or entity concerned.

43In the present case, on the one hand, Decision 2011/783 and Implementing Regulation No1245/2011 were notified individually to the applicants by letter of 5 December 2011. Therefore, the request made on 15 February 2012 to amend the form of order sought in relation to those acts was submitted within the period of two months laid down in the sixth paragraph of Article 263TFEU, extended on account of distance by the single period of 10 days provided for by Article 102(2) of the Rules of Procedure.

44On the other hand, Regulation No267/2012 was not notified individually to the applicants even though the Council was aware of their address. Accordingly, the time-limit for amending the applicants’ heads of claim with respect to Regulation No267/2012 has not started to run, and therefore the applicants’ request of 30 July 2012 cannot be considered to be out of time.

45In the light of the foregoing, it must be concluded that the applicants are entitled to seek the annulment of Decision 2011/783, Implementing Regulation No1245/2011 and Regulation No267/2012.

The claim for annulment of any future regulation or decision in force as at the date of closure of the oral procedure which supplements or amends any of the contested measures

46The Council contests the admissibility of the fourth head of claim, by which the applicants seek annulment of any future regulation or decision in force as at the date of closure of the oral procedure which supplements or amends any of the contested measures.

47In that regard, according to the case-law, only actions for annulment of an act in existence adversely affecting the applicants may be brought before the Court. Even if the applicants may be permitted to reformulate their claims so as to seek annulment of acts which have, during the proceedings, replaced the acts initially challenged, that solution cannot authorise the speculative review of the lawfulness of hypothetical acts which have not yet been adopted (see Case T‑228/02Organisation des Modjahedines du peuple d’IranvCouncil[2006] ECRII‑4665, paragraph 32 and the case-law cited).

48Accordingly, the applicants’ fourth head of claim must be rejected as inadmissible.

Substance

49It is appropriate to begin by examining the Council’s and the Commission’s arguments that the applicants cannot take advantage of fundamental rights protection and guarantees. The pleas on which the applicants rely will subsequently be dealt with in a different order from that in which they were set out. Thus, the Court will examine the third plea, the fourth plea, the second plea, the fifth plea and, lastly, the first plea.

Whether the applicants may rely on fundamental rights protection and guarantees

50The Council, supported by the Commission, contends that, under European Union law, legal persons which are emanations of non-Member countries cannot rely on fundamental rights protection and guarantees. They claim that since Bank Kargoshaei, at least, is an emanation of the Iranian State, that rule applies to it.

51In that regard, it must be observed that neither in the Charter of Fundamental Rights of the European Union (OJ 2010 C83, p.389) nor in European Union primary law are there any provisions which state that legal persons which are emanations of States are not entitled to the protection of fundamental rights. On the contrary, the provisions of the Charter which are relevant to the pleas raised by the applicants, and in particular Articles 17, 41 and 47, guarantee the rights of ‘[e]veryone’ or ‘[e]very person’, a form of wording which includes legal persons such as Bank Kargoshaei and the other applicants.

52None the less, the Council relies, in this context, on Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), the effect of which is that applications submitted by governmental organisations to the European Court of Human Rights are not admissible.

53First, Article 34 of the ECHR is a procedural provision which is not applicable to procedures before the Courts of the European Union. Secondly, according to the case-law of the European Court of Human Rights, the aim of that provision is to ensure that a State which is a party to the ECHR is not both applicant and defendant before that court (see, to that effect, judgment of the European Court of Human Rights of 13 December 2007,Islamic Republic of Iran Shipping Lines v. Turkey, no.40998/98, §81, ECHR 2007‑V). That reasoning is not applicable to the present case.

54The Council also argues that the justification of the rule on which it relies is that a State is the guarantor of respect for fundamental rights in its territory but cannot qualify for such rights.

55However, even if that justification were applicable in relation to an internal situation, the fact that a State is the guarantor of respect for fundamental rights in its own territory is of no relevance as regards the extent of the rights to which legal persons which are emanations of that same State may be entitled in the territory of other States.

56In the light of the foregoing, it must be held that European Union law contains no rule preventing legal persons which are emanations of non-Member States from taking advantage of fundamental rights protection and guarantees. Those rights may therefore be relied on by those persons before the Courts of the European Union in so far as those rights are compatible with their status as legal persons.

57Further, and in any event, the Council has not put forward any evidence capable of proving that the applicants, and in particular Bank Kargoshaei, were in fact emanations of the Iranian State, that is entities which participated in the exercise of governmental powers or which ran a public service under government control (see, to that effect, judgment of the European Court of Human Rights,Islamic Republic of Iran Shipping Lines v. Turkey, paragraph 53 above, §79).

58In that regard, the Council maintains that Bank Kargoshaei runs a public service under the control of the Iranian government since it provides financial services which are necessary for the operation of the Iranian economy. The Council does not however contest Bank Kargoshaei’s claims that those services represent commercial activities carried out in a competitive sector and subject to the ordinary law. In those circumstances, the fact that those activities are necessary for the operation of a State’s economy cannot, by itself, confer on them the status of a public service.

59In the light of all the foregoing, it must be concluded that the applicants, including Bank Kargoshaei, may take advantage of fundamental rights protection and guarantees.

The third plea, alleging breach of the obligation to state reasons, of BMI’s and the applicants’ rights of defence, of their right to effective judicial protection, of the principles of sound administration and protection of legitimate expectations, and of the Council’s obligation to review the restrictive measures adopted, in the light of the observations made

60The applicants claim that, as regards the adoption of the contested measures, the Council breached the obligation to state reasons, their rights of defence and those of BMI, and the obligation to review the restrictive measures adopted, in the light of the observations made. Furthermore, the consequence of those breaches is a breach of their right to effective judicial protection and of the principles of sound administration and protection of legitimate expectations.

61The Council and the Commission contest the merits of the applicants’ arguments.

62It must be borne in mind, in the first place, that the purpose of the obligation to state the reasons for an act adversely affecting a person, as provided for by the second paragraph of Article 296TFEU and, more particularly in this case, by Article 24(3) of Decision 2010/413, Article 36(3) of Regulation No961/2010 and Article 46(3) of Regulation No267/2012, is, first, to provide the person concerned with sufficient information to make it possible to determine whether the measure is well founded or whether it is vitiated by an error which may permit its validity to be contested before the Courts of the European Union and, secondly, to enable the latter to review the lawfulness of that measure. The obligation to state reasons thus laid down constitutes an essential principle of European Union law which may be derogated from only for compelling reasons. The statement of reasons must therefore in principle be notified to the person concerned at the same time as the act adversely affecting him, for failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the act during the proceedings before the Courts of the European Union (see, to that effect,Bank Melli IranvCouncil, paragraph 6 above, paragraph 80 and the case-law cited).

63Unless, therefore, overriding considerations pertaining to the security of the European Union or of its Member States or to the conduct of their international relations militate against the communication of certain matters, the Council is bound to apprise an entity that is subject to restrictive measures of the actual and specific reasons why it takes the view that they had to be adopted. It must thus state the facts and points of law on which the legal justification of the measures concerned depends and the considerations which led it to adopt them (see, to that effect,Bank Melli IranvCouncil, paragraph 6 above, paragraph 81 and the case-law cited).

64Moreover, the statement of reasons must be appropriate to the act at issue and to 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 statement of reasons to specify 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. In particular, the reasons given for a measure adversely affecting a person are sufficient if it was adopted in circumstances known to that person which enable him to understand the scope of the measure concerning him (seeBank Melli IranvCouncil, paragraph 6 above, paragraph 82 and the case-law cited).

65In the second place, according to settled case-law, observance of 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 European Union law which must be guaranteed, even when there are no rules governing the procedure in question (Bank Melli IranvCouncil, paragraph 6 above, paragraph 91).

66The principle of respect for the rights of the defence requires, first, that the entity concerned must be informed of the evidence adduced against it to justify the measure adversely affecting it. Secondly, it must be afforded the opportunity effectively to make known its view on that evidence (see, by analogy,Organisation des Modjahedines du peuple d’IranvCouncil, paragraph 47 above, paragraph 93).

67Consequently, as regards an initial measure whereby the funds of an entity are frozen, 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, the evidence adduced against that entity should be disclosed to it either concomitantly with or as soon as possible after the adoption of the measure concerned. At the request of the entity concerned, it also has the right to make known its view on that evidence after the adoption of the measure. Subject to the same proviso, any subsequent decision to freeze funds must as a general rule be preceded by disclosure of further evidence adduced against the entity concerned and a further opportunity for it to make known its view (see, by analogy,Organisation des Modjahedines du peuple d’IranvCouncil, paragraph 47 above, paragraph 137).

68It must also be noted that, when sufficiently precise information has been communicated, enabling the entity concerned effectively to state its point of view on the evidence adduced against it by the Council, the principle of respect for the rights of the defence does not mean that the Council is obliged spontaneously to grant access to the documents in its file. It is only on 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 (seeBank Melli IranvCouncil, paragraph 6 above, paragraph 97 and the case-law cited).

69In the third place, the principle of effective judicial protection is a general principle of European Union 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 European Union authority in question is bound to communicate 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 prescribed period, 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 to carry out the review of the lawfulness of the measure in question which is the duty of those courts (see, to that effect and by analogy, Joined Cases C‑402/05P and C‑415/05PKadi and Al Barakaat International FoundationvCouncil and Commission[2008] ECR I‑6351, paragraphs 335 to 337 and the case-law cited).

–The obligation to state reasons

70According to the applicants, the reasons stated in the contested measures are inadequate, in so far as the reasons relating to BMI are so vague and imprecise that they are unable to investigate and respond to them.

71The Council and the Commission contest the merits of the applicants’ arguments.

72As a preliminary point, it must be noted that the adoption and maintenance of the restrictive measures concerning the applicants are based on two cumulative findings: first, that they are owned or controlled by BMI and, secondly, that BMI provided support for nuclear proliferation. Consequently, the statement of reasons relating to BMI’s alleged involvement in nuclear proliferation is an integral part of the statement of reasons for the restrictive measures concerning the applicants. Therefore, in the light of the arguments on which the applicants rely, the Court must ascertain, in the context of the present complaint, whether the reasons for the contested measures are stated to the requisite legal standard so far as concerns the aforementioned two findings.

73As regards, in the first place, the reasons relating to BMI, it should be noted that BMI has been subject to restrictive measures since 23 June 2008. Between that date and the date of adoption of the contested measures, a number of documents passed to and from BMI and the Council, including, in particular, the Council’s letter of 1 October 2009 whereby the Council informed BMI of additional reasons for the adoption of the restrictive measures concerning BMI.

74Even though the letter from the Council of 1 October 2009 was not communicated directly to the applicants by the Council, it was nevertheless brought to their attention, in good time, by another source, since they were in a position to attach a copy of it to the application. That being the case, that letter is part of the background to the adoption of the contested measures in the present case and may, consequently, be taken into consideration in their examination.

75The reasons set out in the contested measures, as supplemented and expounded by the additional reasons communicated on 1 October 2009, are sufficiently detailed to satisfy the Council’s obligation to state reasons as regards the conduct alleged against BMI. Those reasons make it possible to identify not only the entities to which BMI provided financial services and which are subject to restrictive measures adopted by the European Union or by the United Nations Security Council, but also the period during which the services concerned were provided and, in certain cases, the specific transactions to which those services were linked.

76With regard, in the second place, to the reasons concerning the applicants, the contested measures state in respect of each applicant, in essence, that they are owned or controlled, directly or indirectly, by BMI. While that description is, in some cases, succinct, it nevertheless enabled the applicants to understand that the Council was relying on the capital links or the links of control between them and BMI, links which are known to the applicants and the existence of which they do not, moreover, deny.

77Accordingly, the complaint alleging breach of the obligation to state reasons must be rejected.

–Breach of the principle of respect for the rights of the defence

78The applicants submit that, despite repeated requests, BMI and the applicants themselves were not given sufficient access to the Council’s file or a hearing by the Council, with the result that they are unaware of the evidence adduced against them and, therefore, unable to defend themselves. Moreover, in so far as the Council provided them with documents from its file, that disclosure was long overdue.

79The first point to be noted here is that the Council and the Commission deny that the principle of respect for the rights of the defence is applicable to the present case, referring to the fact that the applicants were not subject to restrictive measures because of their own activities but because of their membership of a general category of entities owned or controlled by entities which supported nuclear proliferation.

80That argument cannot be accepted. Article 24(3) and (4) of Decision 2010/413, Article 36(3) and (4) of Regulation No961/2010 and Article 46(3) and (4) of Regulation No267/2012 set out provisions to safeguard the rights of the defence of entities which are subject to restrictive measures adopted under those acts. Respect for those rights is subject to review by the Courts of the European Union (see, to that effect,Bank Melli IranvCouncil, paragraph 6 above, paragraph 37).

81The Council also maintains that it cannot be required to provide the entities concerned with the evidence and information supporting the grounds for the restrictive measures when the evidence and information comes from confidential sources and is, as such, kept by the Member States holding it, or by third countries with which those Member States are cooperating, with a view to protecting the sources.

82In that regard, it is evident from the case-law cited in paragraph 67 above that the evidence adduced against the entities concerned may in fact not be disclosed to them where 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.

83However, taking into consideration the essential role of judicial review in the context of the adoption and the maintenance of restrictive measures, the Courts of the European Union must be able to review the lawfulness and merits of such measures, including compliance with the procedural safeguards available to the entities concerned (see, to that effect and by analogy,Organisation des Modjahedines du peuple d’IranvCouncil, paragraph 47 above, paragraph 155), on the basis that the confidential nature of some evidence may possibly justify restrictions in relation to the communication of that evidence to the applicants or their lawyers that would apply to the entire proceedings before the Court (see, to that effect and by analogy,Organisation des Modjahedines du peuple d’IranvCouncil, paragraph 47 above, paragraph 155).

84As regards the applicants’ complaints, as a preliminary point it must be noted that the restrictive measures concerning the applicants are based on two cumulative findings: first, that they are owned or controlled by BMI and, secondly, that BMI provided support for nuclear proliferation. Consequently, the Council’s evidence against the applicants includes not only that relating to their alleged links with BMI but also that concerning BMI’s alleged involvement in nuclear proliferation, which means that the applicants may rely on a breach of their rights of defence in relation to both categories of evidence.

85On the other hand, the applicants cannot reasonably rely on a breach of BMI’s rights of defence, to which the applicants are not entitled and which they could not therefore exercise in any event.

86As regards the alleged breach of the applicants’ rights of defence, in the first place it must be noted that it is evident from paragraphs 70 to 76 above that the contested measures contain sufficient reasons. In those circumstances, the Council has also complied with its obligation regarding the initial communication of inculpatory evidence.

87In the second place, as regards access to the file, it must be noted that the restrictive measures to which BMI and the applicants are subject are based on three categories of evidence. Thus, the initial adoption of the measures concerning BMI, in 2008, proceeded on the basis of a first proposal submitted by a Member State (‘the initial proposal’). The additional reasons, communicated to BMI by the Council on 1 October 2009, are supported by another proposal from a Member State, a non-confidential copy of which was sent to BMI on 18 November 2009 (‘the additional proposal’). The restrictive measures concerning the applicants themselves were adopted on the basis of a series of proposals from Member States dating from 2010, a non-confidential copy of which was sent to them on 22 February and 8 March 2011.

88As regards, on the one hand, the evidence underpinning the adoption and maintenance of the restrictive measures concerning BMI, it is apparent from the evidence in the file that neither the initial proposal nor the additional proposal was communicated to the applicants by the Council. However, it must be noted that the applicants were none the less informed of the additional proposal – in good time – by another source, since they were able to attach a copy of it to the application.

89It must be held that the failure to communicate a document on which the Council relied in order to adopt or maintain the restrictive measures to which an entity is subject does not constitute a breach of the rights of the defence that would justify annulment of the acts concerned unless it is established that the restrictive measures concerned could not have been lawfully adopted or maintained if the document that was not communicated had to be excluded as inculpatory evidence.

90Consequently, in the present case, the fact that the applicants were not given access to the initial proposal could not justify the annulment of the contested measures unless it was also established that the adoption and maintenance of the restrictive measures concerning them could not be justified by the information to which they were given access in good time, namely the reasons set out in the contested measures, the additional reasons contained in the Council’s letter of 1 October 2009 and the additional proposal.

91It is evident from paragraphs 113 to 150 below that the arguments relied on by the applicants are not such as to call in question the merits of the justification for the restrictive measures to which they are subject, justification which is apparent from the evidence to which the applicants had access. Accordingly, the fact that they were not given access to the initial proposal is not in any event capable of justifying the annulment of the contested measures.

92As regards, on the other hand, the series of proposals from Member States dating from 2010 (see paragraph 85 above), the applicants claim that these were not communicated to them until after the present action was brought.

93It must be noted in that regard that although, in accordance with the case-law cited in paragraph 68 above, the Council is required on request from the party concerned to provide access to all non-confidential official documents, it should be given a reasonable period of time to comply with that obligation. In this case, the request for access to the file was not made by the applicants until 27 December 2010, that is 11 days before their action was lodged. In those circumstances, it cannot be held that the Council breached the applicants’ rights of defence by failing to reply to that request before the action was brought.

94In the third place, the applicants are wrong to maintain that they were unable to secure a hearing by the Council.

95The applicants do not deny that they were able to submit written observations to the Council between 7 and 22 September 2010 and on 29 July 2011.

96Moreover, contrary to what is suggested by the applicants, neither the legislation in question nor the general principle of respect for the rights of the defence gives the applicants the right to a formal hearing (see, by analogy,People’s Mojahedin Organization of IranvCouncil, paragraph 38 above, paragraph 93 and the case-law cited), the opportunity to submit their observations in writing being sufficient.

97In the light of all the foregoing, the complaints as to breach of the principle of respect for the rights of the defence must be rejected as in part ineffective and in part unfounded.

–The defects allegedly affecting the review carried out by the Council

98According to the applicants, the Council breached the obligation to review the restrictive measures adopted, in the light of their observations. In particular, it did not actually review those measures, nor did it provide a detailed response to those observations, confining itself to sending standard letters. Similarly, the review carried out by the Council was not based on the relevant information and evidence.

99In that regard, the Council contends, without being contradicted by the applicants, that prior to the adoption of the contested measures, the delegations of the Member States had received the observations which the applicants had submitted. Consequently, those observations, which include detailed information about BMI’s relationships with the entities mentioned in the statement of reasons for the contested measures, and the evidence substantiating that information, could be taken into account.

100Moreover, it is apparent from the Council’s letters of 28 October 2010 and 5 December 2011 that the Council considered those observations and replied to them, emphasising in particular the fact that the applicants were owned or controlled by BMI which had, in turn, provided financial services to entities involved in nuclear proliferation.

101Accordingly, the arguments that there are defects allegedly affecting the review of the restrictive measures concerning the applicants must be rejected as unfounded.

–The failure to notify Regulation No267/2012 individually to the applicants

102At the hearing, the applicants submitted, without being contradicted by the Council, that Regulation No267/2012 had not been notified to them individually.

103While it is true that an act adopting or maintaining restrictive measures against a person or entity must be notified to that person or entity and it is that notification which starts time running for the purpose of the bringing of an action, by the person or entity concerned, for annulment of the act in question pursuant to the fourth paragraph of Article 263TFEU, that does not mean that the absence of such notification justifies, by itself, the annulment of the act in question.

104Moreover, the applicants do not put forward any arguments that would demonstrate that, in the present case, the failure to notify Regulation No267/2012 to them individually resulted in an infringement of their rights which would justify the annulment of that regulation in so far as it concerns them. Nor is the existence of such an infringement apparent from the evidence in the file, given, first of all, that the reasons stated in regard to the applicants in Regulation No267/2012 are identical to those in the earlier acts of which they were aware; secondly, that they were able to amend the form of order sought so as to seek annulment of Regulation No267/2012; and, lastly, that they were able to learn of that regulation from another source and to attach a copy of it to the statement by which they amended the form of order sought.

105In those circumstances, the Court must reject the applicants’ argument that the Council breached its obligation to notify Regulation No267/2012 to them, and there is no need to consider whether it is admissible.

–The other alleged breaches

106According to the applicants, the breaches of the obligation to state reasons, of their rights of defence and of the obligation to review the restrictive measures adopted also entail a breach of their right to effective judicial protection and of the principles of sound administration and protection of legitimate expectations, as the Council did not act in good faith and diligently.

107It is apparent from the review carried out above that the complaints concerning breach of the obligation to state reasons, of the applicants’ rights of defence and of the Council’s obligation to review the restrictive measures do not justify the annulment of the contested measures. Accordingly, the complaint as to breach of the applicants’ right to effective judicial protection and of the principles of sound administration and protection of legitimate expectations, which is not substantiated by specific arguments and is not therefore independent in scope, must also be rejected.

108In the light of all the foregoing, the third plea must be rejected as in part ineffective and in part unfounded.

The fourth plea, alleging error of assessment as regards the Council’s view that the applicants should be subject to restrictive measures

109The applicants claim that the Council made an error of assessment in concluding that both BMI and the applicants themselves should be subject to restrictive measures.

110Furthermore, according to the applicants, the Council’s error entails an abuse of power on its part.

111The Council and the Commission contest the merits of the applicants’ arguments.

112As a preliminary point, it must be noted that 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 (seeBank Melli IranvCouncil, paragraph 6 above, paragraph 50 and the case-law cited). In the present case, however, the applicants have not adduced any evidence to suggest that, by adopting the contested measures, the Council was pursuing an aim other than that of preventing nuclear proliferation and the financing thereof. Therefore, the argument as to an alleged ‘abuse of power’ on the part of the Council must be rejected at the outset.

113With regard to the applicants’ other arguments, it is apparent from the case-law that the judicial review of the lawfulness of an act whereby restrictive measures are imposed on an entity extends to the assessment of the facts and circumstances relied on as justifying it, and to the evidence and information on which that assessment is based. In the event of challenge, it is for the Council to present that evidence for review by the Courts of the European Union (see, to that effect,Bank Melli IranvCouncil, paragraph 6 above, paragraphs 37 and 107).

114The Council reiterates the argument set out in paragraph 81 above, according to which it cannot be required to produce the evidence and information supporting the grounds for the restrictive measures when the evidence and information comes from confidential sources and is, as such, kept by the Member States holding it, or by third countries with which those Member States are cooperating, with a view to protecting the sources. It states that, in those circumstances, the Court should confine itself to verifying that the Member States’ allegations are ‘objectively plausible’.

115That argument cannot be accepted.

116The fact that the restrictive measures against the applicants were adopted on the basis of evidence obtained by a Member State in no way detracts from the fact that the contested measures are measures taken by the Council, which must, therefore, ensure that their adoption is justified, if necessary by requesting the Member State concerned to submit to it the evidence and information required for that purpose.

117Similarly, the Council cannot rely on a claim that the evidence concerned comes from confidential sources and cannot, consequently, be disclosed. While that circumstance might, possibly, justify restrictions in relation to the communication of that evidence to the applicants or their lawyers, the fact remains that, taking into consideration the essential role of judicial review in the context of the adoption of restrictive measures, the Courts of the European Union must be able to review the lawfulness and merits of such measures without it being possible to raise objections that the evidence and information used by the Council is secret or confidential. Moreover, the Council is not entitled to base an act adopting restrictive measures on information or evidence in the file communicated by a Member State, if that Member State is not willing to authorise its communication to the Court of the European Union whose task is to review the lawfulness of that decision.

118Consequently, it is necessary to examine the merits of the justification for the restrictive measures concerning the applicants in the light of the information and evidence communicated both to the applicants and to the Court.

119It will be recalled that the restrictive measures concerning the applicants are based on two cumulative findings: first, that they are owned or controlled by BMI and, secondly, that BMI provided support for nuclear proliferation. Consequently, the assessment of the merits of the restrictive measures concerning the applicants entails an assessment of the merits of each of those two findings.

120The Court will begin by examining the applicants’ arguments in relation to the finding that BMI provided support for nuclear proliferation. The Court must then go on to assess the applicants’ arguments that they should not in any event have been subject to restrictive measures.

–The support for nuclear proliferation allegedly provided by BMI

121The statement of reasons for the contested measures and the information communicated by the Council on 1 October and 18 November 2009 refer to a total of nine entities allegedly involved in nuclear proliferation to which BMI provided financial services: the Aerospace Industries Organisation (AIO), Shahid Hemmat Industrial Group (SHIG), Shahid Bagheri Industrial Group (SBIG), the Atomic Energy Organisation of Iran (AEOI), Novin Energy Company, Mesbah Energy Company, Kalaye Electric Company, the Defence Industries Organisation (DIO) and Bank Sepah.

122The applicants dispute that BMI provided financial services to SHIG, SBIG, Novin Energy Company and Kalaye Electric Company. Since the Council has not put forward any evidence or information to substantiate its claims in relation to the services allegedly provided to those four companies, those claims cannot justify the restrictive measures concerning BMI, in accordance with the case-law cited in paragraph 113 above.

123By contrast, the applicants do not dispute that BMI provided financial services to AIO, AEOI, Mesbah Energy Company, DIO and Bank Sepah. It is therefore appropriate to consider whether, as the Council maintains, those services constitute support for nuclear proliferation within the meaning of Decision 2010/413, Regulation No423/2007, Regulation No961/2010 and Regulation No267/2012.

124In that regard, it must be noted that, under Article 18 of Regulation No423/2007, Article 39 of Regulation No961/2010 and Article 49 of Regulation No267/2012, those regulations are applicable within the territory of the European Union, including its airspace, on board any aircraft or any vessel under the jurisdiction of a Member State, to any person inside or outside the territory of the European Union who is a national of a Member State, to any legal person, entity or body which is incorporated or constituted under the law of a Member State and to any legal person, entity or body in respect of any business done in whole or in part within the European Union.

125Accordingly, as regards transactions carried out outside the European Union, Regulation No423/2007, Regulation No961/2010 and Regulation No267/2012 are not capable of imposing legal obligations on a financial institution established in a non-Member State and constituted under the law of that State (a ‘foreign financial institution’) such as BMI. Consequently, such a financial institution is not obliged, under those regulations, to freeze the funds of entities involved in nuclear proliferation.

126The fact remains however that if a foreign financial institution is engaged in, is directly associated with or is providing support for nuclear proliferation, its funds and economic resources which are located within the European Union, involved in business carried out wholly or in part within the European Union, or held by nationals of Member States or by any legal persons, entities or bodies which are incorporated or constituted under the law of a Member State, can be caught by the restrictive measures adopted pursuant to Regulation No423/2007, Regulation No961/2010 and Regulation No267/2012.

127It follows that it is very much in the interests of a foreign financial institution to ensure that it is not engaged in, is not directly associated with and is not providing support for nuclear proliferation, in particular by supplying financial services to an entity involved in nuclear proliferation. Consequently, where it knows or may reasonably suspect that one of its customers is involved in nuclear proliferation, it should bring to an end the supply of financial services to that customer without delay, taking into account the applicable legal obligations, and should not supply any further services.

128In the present case, the Council does not claim that the services at issue fell within the scope of Regulation No423/2007, Regulation No961/2010 and Regulation No267/2012, as referred to in paragraph 124 above. Accordingly, it is necessary to consider whether BMI acted without delay in bringing to an end the supply of financial services to each of the five entities mentioned in paragraph 123 above when it knew or could reasonably have suspected that they were involved in nuclear proliferation.

129On that point, first of all, the applicants maintain that BMI made only one payment in relation to AIO on 14 March 2007, that is to say, before the adoption by the Council of the restrictive measures against AIO on 23 April 2007.

130Yet the Council has not put forward any specific evidence or information to suggest that services were provided to AIO by BMI after the adoption of the restrictive measures concerning AIO, or that BMI knew or could reasonably have suspected that AIO was engaged in nuclear proliferation as at 14 March 2007.

131That being the case, the payment made in relation to AIO does not justify the restrictive measures against BMI.

132Secondly, the applicants admit that BMI carried out transactions on behalf of Bank Sepah, Mesbah Energy Company and DIO both before and after the adoption of restrictive measures concerning those entities. They maintain, however, that all the transactions carried out arose from commitments entered into before those measures were adopted, and that, in any event, they were not linked to nuclear proliferation.

133In that regard, it must be noted that Article 20(6) of Decision 2010/413, Article 9 of Regulation No423/2007, Article 18 of Regulation No961/2010 and Article 25 of Regulation No267/2012 essentially permit the release of funds of entities that are subject to restrictive measures, for the purpose of making payments due under obligations concluded by them prior to their being listed, provided that those payments are not linked to nuclear proliferation. In those circumstances, BMI, which was under no obligation in this case to freeze the funds of Bank Sepah, Mesbah Energy Company and DIO pursuant to the abovementioned legislation, as is clear from paragraphs 125 and 128 above, should not be required to apply stricter rules in respect of those entities.

134The Council has not put forward any evidence or information to suggest that BMI knew or could reasonably have suspected that Bank Sepah, Mesbah Energy Company and DIO were involved in nuclear proliferation before the restrictive measures concerning them were adopted, or that it carried out transactions on the basis of instructions given after the adoption of those measures, or indeed that the transactions carried out after the adoption of those measures were linked to nuclear proliferation.

135Accordingly, the transactions carried out on behalf of Bank Sepah, Mesbah Energy Company and DIO also do not justify the restrictive measures concerning BMI.

136Thirdly, the applicants admit that, until 18 April 2007, BMI carried out transactions on behalf of AEOI that were linked to the payment of scholarships and education-related expenses and involved sums not exceeding EUR8000.

137AEOI has been subject to the restrictive measures adopted by the United Nations Security Council since 23 December 2006. Thus, from that date, BMI could at least have suspected that AEOI was involved in nuclear proliferation.

138Moreover, the applicants do not claim that the transactions carried out after 23 December 2006 were based on instructions received before that date.

139In any event, since AEOI is responsible for nuclear research and development, there is reason to consider that the scholarships paid in its name are linked to those activities and, therefore, to nuclear proliferation.

140Consequently, the considerations set out in paragraph 133 above do not apply to the transactions carried out on behalf of AEOI.

141Furthermore, the applicants are wrong to rely on the fact that the payments made by BMI on behalf of AEOI were not very large. First, according to the information provided by them, the total amount of those payments made in 2007 was EUR17768; 68341 United States dollars (USD); and 2041 Australian dollars (AUD), which is a not insignificant sum. Secondly, in so far as the availability of highly-qualified personnel is of paramount importance for nuclear research and development, the payment of scholarship funds intended to ensure education in that field, even of relatively small individual amounts, constitutes support for the activities in question and, consequently, for nuclear proliferation.

142Accordingly, it must be concluded that the fact that BMI made payments in respect of scholarships and education-related expenses on behalf of AEOI after the adoption by the United Nations Security Council of the restrictive measures concerning that entity constitutes support for nuclear proliferation which justifies the restrictive measures concerning BMI.

143Consequently, the applicants’ complaint that BMI should not have been subject to restrictive measures must be rejected.

–The restrictive measures concerning the applicants

144The applicants claim that, in any event, they should not themselves be subject to restrictive measures. They state that their activities are not in any way linked to nuclear proliferation, and that the Council has not adduced any evidence in that respect. With the exception of Bank Kargoshaei, the applicants are not banks. As regards Bank Kargoshaei, it only provides services of a social nature to natural persons and does not undertake international activities. Therefore, the applicants cannot be used by BMI to circumvent the restrictive measures to which BMI is subject.

145The applicants add that the Council itself implicitly acknowledged that the restrictive measures against them were unjustified since, following a review, it withdrew the measures concerning another entity owned by BMI, Mazandaran Textile Company.

146As a preliminary point, it should be noted that the applicants do not deny that they are owned or controlled by BMI.

147According to the case-law, when the funds of an entity identified as being engaged in nuclear proliferation are frozen, there is a not insignificant danger that that entity may exert pressure on the entities it owns or controls in order to circumvent the effect of the measures applying to it, by encouraging them either to transfer their funds to it, directly or indirectly, or to carry out transactions which it cannot itself perform by reason of the freezing of its funds. That being so, the freezing of the funds of entities owned or controlled by an entity identified as being engaged in nuclear proliferation is necessary and appropriate in order to ensure the effectiveness of the measures adopted vis-à-vis that entity and to ensure that those measures are not circumvented (Joined Cases T‑246/08 and T‑332/08Melli BankvCouncil[2009] ECRII‑2629, paragraph 103).

148The validity of that statement is not affected by the argument that the applicants do not undertake international activities and, with the exception of Bank Kargoshaei, are not financial institutions. Those aspects do not mean that the applicants could not be used by BMI to circumvent the restrictive measures applying to it, as described in paragraph 147 above.

149Furthermore, it must be noted that the case of Mazandaran Textile Company is not comparable to that of the applicants. The Council claims – and its assertion is not disputed by the applicants – that Mazandaran Textile Company was no longer owned or controlled by BMI at the time when Decision 2010/644 and Regulation No961/2010 were adopted.

150In those circumstances, the complaint that the applicants should not themselves be subject to restrictive measures must be rejected.

151In the light of all the foregoing, the fourth plea must be rejected as unfounded.

The second plea, alleging error of law as regards the legal basis for Decision 2010/644 and Regulation No961/2010

152The applicants maintain that, in so far as Decision 2010/644 and Regulation No961/2010 provide for restrictive measures against entities that are not covered by the United Nations Security Council resolutions, they should have been adopted pursuant to the procedure laid down in Article 75TFEU rather than that laid down in Article 215TFEU. Alternatively, the contested measures could have been based on a joint application of Articles 75TFEU and 215TFEU.

153The Council and the Commission contest the merits of the applicants’ arguments.

154It has consistently been held that the choice of legal basis for a European Union measure must rest on objective factors which are amenable to judicial review, including the aim and the content of the measure (see Case C‑130/10ParliamentvCouncil[2012] ECR I‑0000, paragraph 42 and the case-law cited).

155Article 75TFEU is included in Title V of Part Three of the FEU Treaty, which concerns the area of freedom, security and justice within the European Union. It enables restrictive measures to be adopted which are intended to achieve the objectives defined by that title, which are set out in Article 67TFEU, and only as regards preventing and combating terrorism and related activities.

156Article 215TFEU, on the other hand, is included in Title IV of Part Five of the FEU Treaty, which concerns external action by the Union. It enables restrictive measures to be adopted against third countries and against natural or legal persons and groups and non-State entities in order to implement a decision adopted in accordance with Chapter 2 of Title V of the EU Treaty in the field of the common foreign and security policy (‘the CFSP’).

157In the present case it must be observed, as a preliminary point, that the applicants are wrong to claim that Decision 2010/644 should have been based on Article 75TFEU. That decision was adopted pursuant to the EU Treaty, not the FEU Treaty, and therefore it cannot have as its legal basis a provision of the FEU Treaty.

158As to Regulation No961/2010, the Council correctly contends that the restrictive measures provided for by that regulation concern neither the objectives set out in Article 67TFEU, nor,a fortiori, the prevention and combating of terrorism and related activities. They relate to the activities of the Islamic Republic of Iran – that is to say, a third country – which are linked to nuclear proliferation. Thus, they concern the area of the CFSP.

159Furthermore, Regulation No961/2010 implements Decision 2010/413 and Decision 2010/644, which are acts adopted pursuant to Article 29TEU. The latter provision is included in Chapter 2 of Title V of the EU Treaty, which concerns the CFSP.

160In those circumstances, it must be concluded that Article 215TFEU constitutes an appropriate and sufficient legal basis for the adoption of Regulation No961/2010, as the restrictive measures laid down by that regulation fall outside the scoperatione materiaeof Article 75TFEU.

161The fact, invoked by the applicants, that the restrictive measures to which they are subject go beyond those adopted by the United Nations Security Council is irrelevant in that context.

162On that point, it is apparent from the case-law that nothing in Articles 60EC and 301EC permits the inference that the powers conferred on the Community by those provisions were limited to the implementing of measures decided by the United Nations Security Council (see, to that effect,Bank Melli IranvCouncil, paragraph 6 above, paragraphs 51, 52 and 64). Those findings can be applied to the restrictive measures adopted pursuant to Article 215TFEU, which reflects the content of Articles 60EC and 301EC (see, to that effect,ParliamentvCouncil, paragraph 154 above, paragraph 51).

163Therefore, the fact that restrictive measures adopted under the CFSP go beyond those decided by the United Nations Security Council has no impact on the appropriateness and sufficiency of Article 215TFEU as a legal basis for those measures.

164Furthermore, according to the case-law, the differences in the procedures applicable under Articles 75TFEU and 215(1)TFEU mean that it is not possible for the two provisions to be applied concurrently so as to serve as a twofold legal basis for a measure such as Regulation No961/2010 (see, by analogy,ParliamentvCouncil, paragraph 154 above, paragraph 49).

165In so far as the applicants further maintain in that context that recourse to Article 75TFEU would ensure a proper level of democratic accountability through the intervention of the European Parliament, it must be noted, first of all, that it is not procedures that define the legal basis of a measure but the legal basis of a measure that determines the procedures to be followed in adopting that measure (ParliamentvCouncil, paragraph 154 above, paragraph 80). Thus, the desire to involve the Parliament in the process of adoption of restrictive measures cannot result in the measures concerned having to be founded on a legal basis that is not applicableratione materiae, such as, in this instance, Article 75TFEU.

166Next, the difference between Article 75TFEU and Article 215TFEU, so far as the Parliament’s involvement is concerned, is the result of the choice made by the framers of the Treaty of Lisbon conferring a more limited role on the Parliament with regard to the Union’s action under the CFSP (ParliamentvCouncil, paragraph 154 above, paragraph 82).

167Lastly, under Article 215(3)TFEU, the acts referred to in that article are to include necessary provisions on legal safeguards (ParliamentvCouncil, paragraph 154 above, paragraph 83).

168Accordingly, it must be concluded that the Council did not make a mistake as regards the legal basis for Decision 2010/644 and Regulation No961/2010.

169The second plea must therefore be rejected as in part ineffective and in part unfounded.

The fifth plea, alleging breach of the principle of proportionality and of the applicants’ right to property owing to the Council’s failure to take into account the resolutions of the United Nations Security Council

170The applicants submit that the Council breached the principle of proportionality and their right to property.

171The Council, supported by the Commission, contests the merits of the applicants’ arguments.

172According to the case-law, by virtue of the principle of proportionality, which is one of the general principles of European Union 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 (Bank Melli IranvCouncil, paragraph 6 above, paragraph 66).

173In this instance, in the first place, the applicants submit that they are subject to restrictive measures that go beyond those provided for in the resolutions of the United Nations Security Council, even though the contested measures are supposed to reflect those resolutions. Accordingly, the restrictive measures to which they are subject are disproportionate, since the Council has not provided any objective justification for that disparity.

174On that point, it has already been stated in paragraph 162 above that the Council was competent to adopt, pursuant to Article 215TFEU, restrictive measures going beyond those decided by the United Nations Security Council, such as those provided for by Regulation No961/2010 and by Regulation No267/2012.

175The same conclusion must be applied, by analogy, to the restrictive measures adopted pursuant to Article 29TEU, such as those provided for by Decision 2010/413 and by the decisions adopted in order to implement it. Article 29TEU also does not limit the powers it confers on the Council to the implementing of measures decided by the United Nations Security Council.

176Consequently, the mere fact that the restrictive measures to which the applicants are subject go beyond those adopted by the United Nations Security Council does not mean that the Council has breached the principle of proportionality.

177Moreover, the applicants are wrong to claim that the Council was obliged to provide ‘objective justification’ for the fact that it was adopting autonomous restrictive measures with respect to them. According to the case-law, autonomous restrictive measures against entities owned or controlled by an entity identified as being engaged in nuclear proliferation pursue a legitimate objective which corresponds to those pursued by the resolutions of the United Nations Security Council, namely to prevent nuclear proliferation and its funding. They are, moreover, appropriate and necessary in order to achieve that objective (see, to that effect,Melli BankvCouncil, paragraph 147 above, paragraphs 102 and 103). Accordingly, the Council was not obliged to provide the applicants with ‘objective justification’ but only with the actual and specific reasons why it took the view that the criteria for the adoption of autonomous restrictive measures applied to them. As is apparent from paragraphs 70 to 76 above, the Council complied with that obligation.

178In those circumstances, the complaint that the restrictive measures to which the applicants are subject are disproportionate in that they go beyond those provided for by the United Nations Security Council must be rejected as unfounded.

179In the second place, the applicants submit that the restrictive measures to which BMI is subject apply not only to its own funds but also to those of its depositors, including the applicants, which is incompatible with the relevant United Nations Security Council resolutions.

180However, on the one hand, as the Council contends, Article 20(6) of Decision 2010/413, Article 9 of Regulation No423/2007, Article 18 of Regulation No961/2010 and Article 25 of Regulation No267/2012 enable customers of BMI who are not themselves caught by the restrictive measures to withdraw, under certain conditions, the funds which were deposited with BMI before the adoption of the restrictive measures to which it is subject. Consequently, the applicants’ argument has no basis in fact as regards the depositors who are not caught by the restrictive measures.

181On the other hand, as regards depositors who are subject to restrictive measures, such as the applicants, their inability to withdraw the funds which they have deposited with BMI and which have been frozen is in consequence of the adoption of those very measures. As is apparent from paragraphs 172 to 176 above, the mere fact that those measures go beyond the measures adopted by the United Nations Security Council does not mean that the Council has breached the principle of proportionality.

182In the light of the foregoing, the fifth plea must be rejected as unfounded.

The first plea, alleging infringement of Article 215TFEU and Article 40TEU and breach of the principle of equal treatment

183The applicants maintain that by adopting Regulation No961/2010 the Council infringed Article 215TFEU and Article 40TEU and breached the principle of equal treatment.

184The Council contests the merits of the applicants’ arguments.

185First, the applicants submit that, whereas Article 215(2)TFEU provides that the Council ‘may’ adopt restrictive measures, which means that it has discretion in the matter, Decision 2010/413 – adopted within the framework of the CFSP – obliged the Council to adopt restrictive measures, contrary to Article 215TFEU and, as a result, to Article 40TEU.

186It must be noted in that regard that, while the prior adoption of a decision in accordance with Chapter 2 of Title V of the EU Treaty is a condition that is necessary in order for the Council to be able to adopt restrictive measures under the powers conferred on it by Article 215TFEU, the mere existence of such a decision cannot create an obligation on the part of the Council to adopt such measures.

187The Council remains free to assess, in the exercise of the powers conferred on it by the FEU Treaty, the detailed arrangements for implementing decisions adopted in accordance with Chapter 2 of Title V of the EU Treaty, including the possible adoption of any restrictive measures based on Article 215TFEU.

188Consequently, the applicants are wrong to claim that Decision 2010/413 obliges the Council to adopt restrictive measures. There are no grounds, therefore, for holding that there has been an infringement of Article 215TFEU or of Article 40TEU.

189Secondly, according to the applicants, contrary to the requirements of Article 29TEU, Decision 2010/413 does not define the approach of the Union to a particular matter of a geographical or thematic nature, but imposes specific obligations on Member States and on persons under their jurisdiction. Consequently, that decision has no legal basis and the Council thus infringed Article 215(2)TFEU by taking that decision as a basis for the adoption of Regulation No961/2010.

190It must be noted in that regard that there is nothing in Article 29TEU to preclude the definition of a geographical or thematic approach from also covering the actual measures to be implemented by all the Member States faced with an event or a development.

191That is particularly the case as Article 29TEU requires Member States to ensure that their national policies conform to the positions thus defined. The precise definition both of the measures to be taken and of the persons, entities and bodies to which those measures apply may be necessary in order to ensure consistency in the implementation of the Council’s approach by all the Member States.

192In the present case, the objective of preventing nuclear proliferation and its funding, which underlies the adoption of Decision 2010/413, is reflected, inter alia, in the freezing of the funds of certain persons, entities and bodies. The effectiveness of such measures largely depends, however, on their uniform and simultaneous implementation by all the Member States, which is dependent on a precise definition both of their content and of the persons, entities and bodies to which they relate.

193Accordingly, it must be concluded that Decision 2010/413 complies with Article 29TEU. As a result, the Council was able to refer to it without infringing Article 215TFEU when it adopted Regulation No961/2010.

194Thirdly, the applicants submit that Regulation No961/2010 and Regulation No267/2012 do not contain the necessary provisions on legal safeguards, contrary to the requirements of Article 215(3)TFEU. The absence of such provisions, both in Regulation No961/2010 and Regulation No267/2012 and in Decision 2010/413, entails, moreover, a breach of the principle of equal treatment in relation to the entities covered by the acts imposing restrictive measures adopted pursuant to Article 75TFEU. Against that background, Article 24 of Decision 2010/413, Article 36 of Regulation No961/2010 and Article 46 of Regulation No267/2012 do not constitute sufficient legal safeguards, according to the applicants, in view also of the fact that they are not actually implemented by the Council.

195On that point, the argument as to the lack of legal safeguards in the acts in question has no basis in fact. As noted in paragraph 80 above, Article 24(3) and (4) of Decision 2010/413, Article 36(3) and (4) of Regulation No961/2010 and Article 46(3) and (4) of Regulation No267/2012 set out provisions to safeguard the rights of the defence of entities which are subject to restrictive measures adopted under those acts, respect for those rights being subject, moreover, to review by the Courts of the European Union. Thus, the entities subject to restrictive measures have the right, inter alia, to be informed of the grounds for the adoption of those measures and to submit their observations on them. Likewise, where observations are submitted, the Council is obliged to review the restrictive measures and to inform the entity concerned of the outcome of its review.

196Against that background, the question whether Decision 2010/413, Regulation No961/2010 and Regulation No267/2012 provide for the legal safeguards required by Article 215(3)TFEU is separate from the question whether those safeguards are actually implemented by the Council on the adoption of restrictive measures against particular persons, entities or bodies. Therefore, the argument concerning the lack of effective implementation of those measures is irrelevant in the context of the complaint of an infringement of Article 215(3)TFEU and of a resulting breach of the principle of equal treatment. Moreover, respect for the legal safeguards provided for by Decision 2010/413, Regulation No961/2010 and Regulation No267/2012 in the context of the adoption and maintenance of the restrictive measures to which the applicants are subject has been examined in paragraphs 60 to 108 above, and consideration of the applicants’ arguments has not revealed any unlawfulness that would justify the annulment of the contested measures.

197As regards the complaint alleging breach of the principle of equal treatment, it must be observed, in the absence of more detailed arguments from the applicants, that the legal safeguards provided for in Decision 2010/413, Regulation No961/2010 and Regulation No267/2012, the terms of which are recalled in paragraph 195 above, correspond to the level of legal safeguards required by Article 75TFEU. Consequently, the complaint alleging breach of the principle of equal treatment must be rejected.

198Accordingly, it must be held that the Council has neither infringed Article 215(3)TFEU nor breached the principle of equal treatment.

199In the light of the foregoing, the first plea must be rejected as in part ineffective and in part unfounded.

200Since all the pleas have been rejected, the action must be dismissed in its entirety.

Costs

201Under Article 87(2) 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.

202However, under Article 87(3) of the Rules of Procedure, on the one hand, where the circumstances are exceptional the Court may order that the costs be shared or that each party bear its own costs, and, on the other, it may order a party, even if successful, to pay costs which it considers that party to have unreasonably or vexatiously caused the opposite party to incur.

203In the present case, although the applicants have been unsuccessful in their claims, it is apparent from paragraphs 74 and 88 above that the Council failed to communicate to them a significant part of the statement of reasons for the contested measures and the evidence in its file underpinning it, thereby encouraging them to bring the present action and to incur the costs associated with it. In those circumstances, it must be held that the Council vexatiously caused the applicants to incur those costs and the Council must be ordered to pay them. For the same reason, the Council shall bear its own costs.

204Under the first subparagraph of Article 87(4) of the Rules of Procedure, the institutions which intervened in the proceedings are to bear their own costs. Consequently, the Commission shall bear its own costs.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1.Dismisses the action;

2.Orders the Council of the European Union to bear its own costs and to pay those incurred by Bank Kargoshaei, Bank Melli Iran Investment Company, Bank Melli Iran Printing and Publishing Company, Cement Investment & Development Co., Mazandaran Cement Company, Melli Agro-chemical Company and Shomal Cement Co.;

3.Orders the European Commission to bear its own costs.

Pelikánová

Jürimäe

Van der Woude

Delivered in open court in Luxembourg on 16 September 2013.

[Signatures]

Table of contents

Background to the dispute

Procedure and forms of order sought

Law

Admissibility

The applicants’ requests to amend the form of order sought

The claim for annulment of any future regulation or decision in force as at the date of closure of the oral procedure which supplements or amends any of the contested measures

Substance

Whether the applicants may rely on fundamental rights protection and guarantees

The third plea, alleging breach of the obligation to state reasons, of BMI’s and the applicants’ rights of defence, of their right to effective judicial protection, of the principles of sound administration and protection of legitimate expectations, and of the Council’s obligation to review the restrictive measures adopted, in the light of the observations made

– The obligation to state reasons

– Breach of the principle of respect for the rights of the defence

– The defects allegedly affecting the review carried out by the Council

– The failure to notify Regulation No267/2012 individually to the applicants

– The other alleged breaches

The fourth plea, alleging error of assessment as regards the Council’s view that the applicants should be subject to restrictive measures

– The support for nuclear proliferation allegedly provided by BMI

– The restrictive measures concerning the applicants

The second plea, alleging error of law as regards the legal basis for Decision 2010/644 and Regulation No961/2010

The fifth plea, alleging breach of the principle of proportionality and of the applicants’ right to property owing to the Council’s failure to take into account the resolutions of the United Nations Security Council

The first plea, alleging infringement of Article 215TFEU and Article 40TEU and breach of the principle of equal treatment

Costs