Post Bank Iran v Council (Judgment) [2016] EUECJ T-68/14 (03 May 2016)

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(Common foreign and security policy — Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Plea of illegality — Article 46(2) of Regulation (EU) No 267/2012 — Article 215 TFEU — Article 20(1)(c) of Decision 2010/413/CFSP, as amended by Article 1(7) of Decision 2012/35/CFSP — Article 23(2)(d) of Regulation No 267/2012 — Fundamental rights — Articles 2 TEU, 21 TEU and 23 TEU — Articles 17 and 52 of the Charter of Fundamental Rights — Error of assessment — Equal treatment — Non-discrimination — Principle of sound administration — Obligation to state reasons — Misuse of powers — Legitimate expectations — Proportionality)

Post Bank Iran, established in Tehran (Iran), represented by D. Luff, avocat,

Council of the European Union, represented by I. Rodios and M. Bishop, acting as Agents,

European Commission, represented by F. Castillo de la Torre and D. Gauci, acting as Agents,

APPLICATION firstly for annulment, under Article 263 TFEU and Article 275 TFEU of Council Decision 2013/661/CFSP of 15 November 2013 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2013 L 306, p. 18) and of Council Implementing Regulation (EU) No 1154/2013 of 15 November 2013 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2013 L 306, p. 3), in so far as they concern the applicant, and secondly for a declaration, under Article 277 TFEU, of the inapplicability as regards the applicant of Article 20(1)(c) of Decision 2010/413, concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39) as amended by Article 1(7) of Council Decision 2012/35/CFSP of 23 January 2012 (OJ 2012 L 19, p. 22) and of Article 23(2)(d) and Article 46(2) of Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1).

composed of H. Kanninen, President, I. Pelikánová (Rapporteur) and E. Buttigieg, Judges,

having regard to the written procedure and further to the hearing on 14 July 2015,

1 This 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’).

2 The applicant, Post Bank Iran, is a company incorporated under Iranian law which provides post office banking services.

3 On 9 June 2010 the United Nations Security Council (‘the Security Council’) adopted Resolution 1929 (2010) (‘Resolution 1929’) which aimed to extend the scope of the restrictive measures imposed by Security Council Resolutions 1737 (2006) of 27 December 2006 (‘Resolution 1737’) and 1803 (2008) of 3 March 2008 and to introduce additional restrictive measures against the Islamic Republic of Iran.

4 On 17 June 2010, the European Council adopted a Declaration on the Islamic Republic of Iran, in which it underlined its deepening concerns about the Iranian nuclear programme and welcomed the adoption of Resolution 1929. Recalling its Declaration of 11 December 2009, the European Council, in particular, invited the Council of the European Union to adopt restrictive measures implementing those contained in Resolution 1929. In accordance with the Declaration of the European Council, the restrictive measures were to be applied, in particular, to persons and entities other than those designated by the Security Council or by the Sanctions Committee set up pursuant to paragraph 18 of Resolution 1737, but using the same criteria as those applied by those bodies.

5 By 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), the applicant’s name was included on the list in Annex II to that decision.

6 Accordingly, pursuant to Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation No 423/2007 (OJ 2010 L 195, p. 25), the applicant’s name was included on the list in Annex V to Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1). That listing took effect on 27 July 2010. It had the effect of freezing the applicant’s funds and economic resources (‘the freezing of funds’).

7 The inclusion of the applicant’s name on the abovementioned lists was based on the following grounds:

‘[The applicant] has evolved from being an Iranian domestic bank to a bank which facilitates Iran’s international trade. Acts on behalf of Bank Sepah (designated under UN Security Council Resolution 1747), carrying out Bank Sepah’s transactions and hiding Bank Sepah’s connection with transactions in order to circumvent sanctions. In 2009 [the applicant] facilitated business on behalf of Bank Sepah between Iran’s defence industries and overseas beneficiaries. Has facilitated business with front company for Tranchon Commercial Bank [of the Democratic People’s Republic of Korea or] the DPRK, known for facilitating proliferation-related business between Iran and the DPRK.’

8 By letter of 29 July 2010 the Council informed the applicant that its name had been included on the lists in Annex II to Decision 2010/413 and in Annex V to Regulation No 423/2007. A copy of those acts was enclosed with the letter.

9 By letter of 12 September 2010, the applicant asked the Council to review that listing, in the light of information sent to the Council by the applicant.

10 After reviewing the applicant’s situation, the Council maintained the applicant’s name on the list in Annex II to Decision 2010/413, as amended by Council Decision 2010/644/CFSP of 25 October 2010 (OJ 2010 L 281, p. 9), with effect from the same date.

‘[The applicant] has evolved from being an Iranian domestic bank to a bank which facilitates Iran’s international trade. Acts on behalf of Bank Sepah (designated under UNSCR 1747), carrying out Bank Sepah’s transactions and hiding Bank Sepah’s connection with transactions in order to circumvent sanctions. In 2009 [the applicant] facilitated business on behalf of Bank Sepah between Iran’s defence industries and overseas beneficiaries. Has facilitated business with front company for DPRK’s Tranchon Commercial Bank, known for facilitating proliferation-related business between Iran and the DPRK.’

11 When 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) was adopted, the applicant’s name was included on the list in Annex VIII to that regulation with effect from 27 October 2010.

12 By letter of 28 October 2010, received by the applicant on 29 October 2010, the Council informed the applicant that, following a reconsideration of its situation in the light of the comments in the letter of 12 September 2010, it would continue to be subject to restrictive measures.

13 By letter of 28 December 2010 the applicant denied the allegations made against it by the Council. For the purpose of exercising its rights of defence, it requested access to the file.

14 By letter of 22 February 2011, the Council provided the applicant with the extracts concerning it from the listing proposals submitted by Member States, as they appeared in the Council cover notes with references 13413/10 EXT 5, 13414/10 EXT 5 and 6723/11.

15 By letter of 29 July 2011 the applicant once more contested the veracity of the Council’s accusations.

16 After reconsidering the applicant’s situation, the Council maintained its inclusion on the lists in Annex II to Decision 2010/413, as amended by Decision 2010/644, and in Annex VIII to Regulation No 961/2010, with effect, respectively, from 1 December 2011, the date of the adoption of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413 (OJ 2011 L 319, p. 71), and from 2 December 2011, the date of the publication in the Official Journal of the European Union of Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11).

17 By letter of 5 December 2011 the Council informed the applicant that it was to continue to be subject to restrictive measures.

18 By letter of 13 January 2012 the applicant again requested access to the file.

19 Council Decision 2012/35/CFSP of 23 January 2012, amending Decision 2010/413 (OJ 2012 L 19, p. 22), came into force on the day of its adoption. Article 1(7) thereof amended, with effect from the latter date, Article 20 of Decision 2010/413.

20 By letter of 21 February 2012 the Council sent to the applicant documents relating to the ‘decision on 1 December 2011 to retain restrictive measures in force against [the applicant]’.

21 When 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) was adopted, the applicant’s name was included, for the same reasons as those already stated in paragraph 10 above, on the list in Annex IX to that regulation, with effect from 24 March 2012.

22 Council Decision 2012/635/CFSP of 15 October 2012, amending Decision 2010/413 (OJ 2012 L 282, p. 58), came into force on 16 October 2012. Article 1(8) thereof amended, with effect from the latter date, Article 20 of Decision 2010/413.

23 Council Regulation (EU) No 1263/2012 of 21 December 2012, amending Regulation No 267/2012 (OJ 2012 L 356, p. 34), came into force on 23 December 2012. Article 1(11) thereof amended, with effect from the latter date, paragraph 2(c) and (d) and paragraph 4 of Article 23 of Regulation No 267/2012.

24 Council Decision 2012/829/CFSP of 21 December 2012, amending Decision 2010/413 (OJ 2012 L 356, p. 71), came into force on 22 December 2012. Article 1(2) thereof amended, with effect from the latter date, Article 20 of Decision 2010/413.

25 By application lodged at the Court Registry on 7 January 2011, the applicant brought an action seeking, in essence, annulment of Annex II to Decision 2010/413, as amended by Decision 2010/644, Annex VIII to Regulation No 961/2010 and Annex IX to Regulation No 267/2012, in so far as they concerned the applicant. That action was registered as Case T‑13/11.

26 By judgment of 6 September 2013 in Post Bank Iran v Council (T‑13/11, EU:T:2013:402), the Court inter alia annulled the measures referred to in paragraph 25 above. As no appeal was brought against that judgment, it became final and acquired the force of res judicata.

27 By letter of 10 October 2013, the Council informed that applicant that, ‘since it [was] a company majority-owned by the Government of Iran and engaged in commercial activities, [it] [met] the condition for designation in Article 20(1)(c) of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012, which refers to persons and entities that provide support, including financial support, to the Government of Iran’ and that it must therefore remain subject to restrictive measures on the basis of a new statement of reasons, worded as follows:

‘Company which is majority owned by the Government of Iran and provides financial support to the Government of Iran.’

28 By letter of 31 October 2013, the applicant, through its lawyer, denied having provided any support, in particular financial support, to the Government of Iran. It maintains that the Council gave a new statement of reasons for the sole purpose of circumventing the effects, which were unfavourable for the Council, of the judgment in Post Bank Iran v Council, cited in paragraph 26 above (EU:T:2013:402) and despite the fact that it could not establish the existence of a direct or indirect link between the applicant’s activities and nuclear proliferation. The applicant also maintained that the new statement of reasons is unclear and insufficient, since it does not specify how the applicant is said to have supported the Government of Iran in the context of its commercial activity, and the applicant wonders whether it is sanctioned merely because it is owned by the Government of Iran. Finally, the applicant requested the Council to send it the documents in its possession which justify, according to the Council, its remaining subject to restrictive measures, in spite of the judgment in Post Bank Iran v Council, cited in paragraph 26 above (EU:T:2013:402).

29 By Decision 2013/661/CFSP of 15 November 2013, amending Decision 2010/413, the applicant’s name was included on the list in Annex II to Decision 2010/413, with effect from 16 November 2013, on the basis of the new statement of reasons mentioned in paragraph 27 above.

30 Consequently, by Council Implementing Regulation (EU) No 1154/2013 of 15 November 2013 implementing Regulation No 267/2012 (OJ 2013 L 306, p. 3), the applicant’s name was included on the list in Annex IX to that regulation with effect from 16 November 2013, on the basis of the new statement of reasons mentioned in paragraph 27 above.

31 By letter of 18 November 2013, the Council notified the applicant, through its lawyer, of its decision, after considering the applicant’s observations, to continue to impose restrictive measures against it on the ground that it provided financial support to the Government of Iran. The Council maintained in particular that, since the applicant was owned by the Government of Iran and was engaged in commercial activities, that government benefits from profits made by the applicant from those activities. Furthermore, the Council transmitted to the applicant the confidential documents which, in its view, provided justification for the applicant to remain subject to restrictive measures, namely, first, the document of the Foreign Relations Counsellors Working Party (RELEX) of 19 September 2013 with the reference MD 126/13 and of 30 September 2013 with the references MD 140/13 to 144/13 and second, the note from the General Secretariat of the Council to the Committee of Permanent Representatives (Coreper) of 8 October 2013 with the reference 14553/13.

32 By application lodged at the Court Registry on 29 January 2014, the applicant brought the present action.

33 By document lodged at the Court Registry on 5 May 2014 the European Commission sought leave to intervene in the present proceedings in support of the Council.

34 On 6 June 2014, the applicant and the Council submitted their observations on the Commission’s application for leave to intervene.

36 By order of 21 July 2014, the President of the First Chamber of the Court granted the Commission leave to intervene.

37 On 7 August 2014, the Commission lodged its statement in intervention. Neither the Council nor the applicant lodged observations on that statement.

40 On a proposal from the Judge-Rapporteur, the Court decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 64(3)(b), (c) and (d) of its Rules of Procedure of 2 May 1991, invited the parties to make written submissions on certain aspects of the dispute, to provide certain information and to produce certain documents. The parties complied with those requests within the period prescribed.

41 The parties presented oral argument and replied to the Court’s oral questions at the hearing on 14 July 2015. At the hearing, the Court asked the applicant, by a new measure of organisation of procedure, adopted on the basis of Article 89(3)(d) of the Rules of Procedure, to produce a document. The applicant complied with that request within the period prescribed.

42 On 10 September 2015 the Council provided its comments on the document produced by the applicant.

– annul Decision 2013/661 and Implementing Regulation No 1154/2013, in so far as they concern the applicant (‘the contested acts’);

– declare Article 20(1)(c) of Decision 2010/413, as amended by Article 1(7) of Decision 2012/35, and Articles 23(2)(d) and 46(2) of Regulation No 267/2012 inapplicable to the applicant;

The interpretation of the applicant’s claims seeking that certain provisions be declared inapplicable to it

46 Although in the application initiating proceedings, the applicant did not specify the basis for its claims that certain provisions be declared inapplicable to it, due to the terms in which they were formulated those claims may be based only on Article 277 TFEU, under which ‘any party may, in proceedings in which an act of general application adopted by an institution … of the Union is at issue, plead the grounds specified in Article 263, second paragraph, in order to invoke before the [EU judicature] the inapplicability of that act’ (see, to that effect and by analogy, judgment in Post Bank Iran v Council, cited in paragraph 26 above, EU:T:2013:402, paragraph 37). It emerges from the pleadings of the Council, supported by the Commission, that that accordingly included the applicant’s claims. It must therefore be held that the applicant intends to raise pleas of illegality of Article 20(1)(c) of Decision 2010/413, as amended by Article 1(7) of Decision 2012/35, and of Articles 23(2)(d), and 46(2) of Regulation No 267/2012, on the basis of which the contested acts were adopted.

47 In accordance with case-law, the EU judicature may, at any time, of their own motion, examine whether there exists any absolute bar to proceeding, including, according to the case-law, the conditions governing the admissibility of an action (judgment of 16 December 1960 in Humblet v Belgian State, 6/60-IMM, ECR, EU:C:1960:48, p. 1147), which includes compliance with the period prescribed for bringing an action (order of 8 July 2009 in Thoss v Cour des comptes, T‑545/08, EU:T:2009:260, point 40.

48 The time limits for bringing proceedings under Article 263 TFEU are a matter of public policy, since the strict application of procedural rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice. Derogation from those procedural time-limits may not be made unless the circumstances are quite exceptional, unforeseeable or amount to force majeure (judgment of 22 September 2011 in Bell & Ross v OHIM, C‑426/10 P, ECR, EU:C:2011:612, paragraph 43).

49 According to the case-law, the period for the bringing of an action for the annulment of measures providing for individual restrictive measures under the fourth paragraph of Article 263 TFEU runs, for each of the persons and entities referred to, from the date of the communication which they must receive (judgment of 23 April 2013 in Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, ECR, EU:C:2013:258, paragraph 59).

50 In response to the measures of organisation of procedure adopted by the Court (paragraph 40 above), the Council expressly argued, in support of its argument that the present action was brought out of time and is therefore inadmissible, that the contested acts were communicated to the applicant in accordance with law by the letter of 18 November 2013, addressed to the applicant’s lawyer and were received the same day by the latter.

51 In that regard, it should be borne in mind that the sixth paragraph of Article 263 TFEU refers to ‘notification [of the act] to the [applicant]’, and not to notification of the act to his representative. It follows that where an act must be notified in order for the period for bringing proceedings to begin to run, it must in principle be sent to the addressee of the act, and not to the lawyers representing him. According to the case-law, notification to an applicant’s representative amounts to notification to the addressee only where such a form of notification is expressly provided for in the applicable legislation or by agreement between the parties (order in Thoss v Court of Auditors, cited in paragraph 47 above, EU:T:2009:260, paragraphs 41 and 42; judgments of 11 July 2013 in BVGD v Commission, T‑104/07 and T‑339/08, EU:T:2013:366, paragraph 146, and 5 November 2014 in Mayaleh v Council, T‑307/12 and T‑408/13, ECR, EU:T:2014:926, paragraph 74).

52 In the present case, the applicable legislation, namely Article 24(3) of Decision 2010/413 and Article 46(3) of Regulation No 267/2012, makes no explicit reference to the possibility of notifying restrictive measures taken in respect of a person or entity to a person representing the latter, but expressly provides that when the address of the person or entity concerned is known, the decision to apply restrictive measures to it must be communicated to him directly (see, to that effect, judgment of 16 November 2011 in Bank Melli Iran v Council, C‑548/09 P, ECR, EU:C:2011:735, paragraphs 47 to 52).

53 It is clear from the evidence, particularly from the Annex to Decision 2013/661, the Annex to Implementing Regulation No 1154/2013 and the letter of 10 October 2013 (paragraph 27 above), that the address of the applicant was, in the present case, known to the Council.

54 Moreover, it cannot be held that an agreement was reached between the Council and the applicant that it would be notified of the contested measures at the address of its lawyer and hence through him. Admittedly, the Court file shows that, following the letter of the Council of 10 October 2013, addressed directly to the applicant, with a copy to the applicant’s lawyer, that lawyer replied by letter of 31 October 2013 which carried a reference, in a footnote, to his own address, and that, referring to that letter, the Council then addressed the letter of 18 November 2013 directly to the lawyer. Although that exchange of letters attests to the fact that the applicant addressed the Council through its lawyer, it is not, however, clear that it authorised the Council, notwithstanding what is provided for by the applicable legislation (see paragraph 51 above), to communicate with it indirectly through its lawyer too. On the contrary, it is clear from the last sentence of the letter of 31 October 2013, that the applicant’s lawyer informed the Council that ‘[his] client … formally [requested] to be [sent] all documents in the Council’s possession which [had led the Council] to consider [taking the decision to keep the applicant subject to restrictive measures]’.

55 It follows that the effective communication of the contested measures to the applicant’s lawyer was not equivalent, in the present case, to a communication and therefore did not constitute notification of such measures to the applicant itself.

56 According to the case-law, in so far the period for bringing an action is calculated from the date of notification, the period cannot begin to run, in respect of the person or entity subject to the measure providing for restrictive measures and whose address is known to the Council, until the measure in question has been properly communicated to it at that address (see, to that effect, of 6 September 2013 in Bank Melli Iran v Council, T‑35/10 and T‑7/11, ECR, EU:T:2013:397, paragraphs 57 and 59, and Mayaleh v Council, cited in paragraph 51 above, EU:T:2014:926, paragraph 66)

57 In the present case, in light of the conclusion drawn in paragraph 55 above, the effective communication of the contested measures to the applicant’s lawyer was not sufficient to start the period for bringing an action running in respect of the applicant, and therefore that the present action cannot be regarded as being brought out of time.

58 Therefore, the present action is admissible and must be examined as to its substance.

59 In support of its action, the applicant raises, pursuant to Article 277 TFEU, two pleas of illegality of Article 20(1)(c) of Decision 2010/413, as amended by Article 1(7) of Decision 2012/35, and of Articles 23(2)(d) and 46(2) of Regulation No 267/2012, on the basis of which the contested acts were adopted. The first plea of illegality, directed against Article 46(2) of Regulation No 267/2012, alleges infringement of Article 215 TFEU. The second plea of illegality, directed against Article 20(1)(c) of Decision 2010/413, as amended by Article 1(7) of Decision 2012/35, and Article 23(2)(d) of Regulation No 267/2012, alleges infringement of the values and fundamental rights protected by Articles 2 TEU, 21 TEU and 23 TEU and by the Charter of Fundamental Rights. In addition, the applicant puts forward six pleas in support of its claim for annulment of the contested measures. The first plea alleges a manifest error in the assessment of the facts and infringement of Article 20(1) of Decision 2010/413, as amended by Article 1(7) of Decision 2012/35, and of Article 23(2)(d) of Regulation No 267/2012. The second plea alleges infringement of the principles of equal treatment, non-discrimination and sound administration. The third plea is based on the insufficiency of the statement of reasons for the contested acts. The fourth plea in law alleges, in essence, a misuse of powers. The fifth plea concerns a breach of the principle of protection of legitimate expectations. The sixth plea is based on a breach of the principle of proportionality.

The first plea of illegality, directed against Article 46(2) of Regulation No 267/2012, alleging infringement of Article 215 TFEU

60 The applicant pleads the illegality of Article 46(2) of Regulation No 267/2012, on the basis of which Implementing Regulation No 1154/2013 was adopted, on the ground that it infringes Article 215 TFEU. Article 46(2) provided that the Council could adopt, on its own initiative, restrictive measures against the applicant without complying with the procedure laid down in Article 215 TFEU, under which it must act only on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission. Implementing Regulation No 1154/2013, in so far as it concerns the applicant, is therefore devoid of any legal basis.

61 The Council, supported by the Commission, disputes the applicant’s arguments, and contends that the first plea of illegality should be rejected on the ground that it is based on a misinterpretation of Article 215 TFEU and Article 291(2) TFEU.

62 In so far as the Council, supported by the Commission, refers to Article 291(2) TFEU, the applicant maintains, in essence, that such a reference is too late since it does not appear in Implementing Regulation No 1154/2013. In any event, Article 291(2) TFEU does not provide that, in the exercise of its implementing powers, the Council can be exempt from the clear and unambiguous requirements of Article 215 TFEU, as recalled in paragraph 60 above.

63 By the first plea of illegality, the applicant, in essence, asks whether Article 46(2) of Regulation No 267/2012 is compatible with Article 215 TFEU.

64 In that regard, it must be stated that neither Article 215 TFEU nor any other provision of primary law precludes a regulation adopted on the basis of Article 215 TFEU from conferring implementing powers on the Commission or on the Council under the conditions laid down in Article 291(2) TFEU, where uniform conditions for implementing certain restrictive measures provided for by that regulation are needed. Therefore, in the absence of any indication limiting the possibility of conferring implementing powers, the application of the provisions of Article 291(2) TFEU cannot be ruled out as far as concerns restrictive measures based on Article 215 TFEU (judgment of 16 July 2014 in National Iranian Oil Company v Council, T‑578/12, under appeal, EU:T:2014:678, paragraph 54).

65 Furthermore, the procedure provided for in Article 215(1) TFEU, in which the Council acts on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and from the Commission, may be inappropriate for the purpose of adopting mere implementing measures. By contrast, Article 291(2) TFEU makes it possible for a more effective implementing procedure to be laid down, tailored to the type of measure to be implemented and each institution’s capacity for action. Thus, the considerations that led the framers of the TFEU to permit, in Article 291(2) thereof, the allocation of implementing powers apply as regards both the implementation of acts based on Article 215 TFEU and the implementation of other legally binding acts (judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraph 55).

66 Consequently, the Council was entitled to provide for implementing powers, under Article 291(2) TFEU, for the adoption of individual fund-freezing measures implementing Article 23(2) of Regulation No 267/2012 (judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraph 56).

67 However, it remains to be determined whether the Council complied with the conditions set out in Article 291(2) TFEU when it reserved the implementing powers at issue to itself.

68 It should be recalled that the aim of regulations, such as Regulation No 267/2012, which impose restrictive measures on the basis of Article 215 TFEU, is to implement — within the scope of the TFEU — decisions adopted under Article 29 TEU within the framework of the common foreign and security policy (CFSP). Consequently, Regulation No 267/2012 falls within the ambit of the objectives and the implementation of the actions of the European Union in the field of the CFSP (see, to that effect, judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraph 60).

69 In particular, on account of their purpose, nature and objectives, restrictive measures adopted under Article 23(2) of Regulation No 267/2012, which aim to put pressure on the Islamic Republic of Iran to end nuclear proliferation, are more closely related to the implementation of the CFSP than to the exercise of the powers conferred on the European Union by the FEU Treaty (see, to that effect, judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraphs 66 and 67)

70 In the context of the TEU, it is clear from a combined reading of the second subparagraph of Article 24(1) TEU, Article 26(2) TEU Article 29 TEU and Article 31(1) TEU that, as a general rule, the Council, acting unanimously, is called upon to take decisions in the sphere of the CFSP (see, to that effect, judgment of 19 July 2012 in Parliament v Council, C‑130/10, ECR, EU:C:2012:472, paragraph 47).

71 In particular, it is the Council, acting alone, that decides on the inclusion of the name of a person or entity in Annex II to Decision 2010/413. It is precisely this inclusion that is implemented, within the scope of the TFEU, by the adoption of a fund-freezing measure under Article 23(2) of Regulation No 267/2012.

72 Accordingly, having regard to the particularities of the measures adopted under Article 23(2) of Regulation No 267/2012, and the need to ensure consistency between the list set out in Annex II to Decision 2010/413 and that set out in Annex IX to Regulation No 267/2012, and in view of the fact that the Commission does not have access to the data held by the information services of the Member States which may prove necessary for the implementation of those measures, the Council was entitled, in the light of Article 291(2) of Regulation No 267/2012, to reserve to itself, in Article 46(2) of Regulation No 267/2012, the power to implement Article 23(2) of that regulation, relating to the freezing of funds (see, to that effect, judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraphs 68 to 73).

73 As regards the question whether the existence of a specific case was duly substantiated, it should be noted, as the applicant correctly points out, that the Council did not expressly state in Regulation No 267/2012 that it was reserving implementing powers to itself for the reasons summarised in paragraph 72 above. However, the fact remains that the justification for reserving implementation to the Council, in Article 46(2) of Regulation No 267/2012, is clear from a combined reading of the recitals and the provisions of that regulation, in the context of the organisation of the relevant provisions of the EU Treaty and FEU Treaty on the freezing of funds (judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, under appeal, EU:T:2014:678, paragraph 77) and therefore the applicant cannot justifiably claim that the reference to those powers occurred too late.

74 First, in recital 28 of Regulation No 267/2012, the Council expressly referred to the exercise of its powers concerning ‘the designation of persons subject to [fund-]freezing measures’ and to its own involvement in the procedure for reviewing listing decisions on the basis of observations or new evidence received from the persons concerned (judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraph 78).

75 Second, the provisions of Article 23(2) of Regulation No 267/2012, read in conjunction with recital 14 of that regulation, make it possible to understand that the implementation of fund-freezing measures against persons or entities is more closely related to the Council’s sphere of action in the context of the CFSP than to measures of an economic nature usually adopted under the FEU Treaty (judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraphs 79 and 80).

76 Third, the parallelism between the restrictive measures adopted under Decision 2010/413 and those adopted under Regulation No 267/2012 is made clear in recital 11 et seq. of that regulation, which show that that regulation implements the amendments to Decision 2010/413 inserted by Decision 2012/35 (judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraph 81).

77 Accordingly, the specific reasons underpinning the allocation of implementation powers to the Council in Article 46(2) of Regulation No 267/2012 are sufficiently comprehensible having regard to the relevant provisions of, and the background to, that regulation (judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraph 82).

78 Therefore, the applicant is not justified in claiming, in essence, that it was only when reading the defence that it was able to understand, for the first time, that the Council had intended to exercise, in the present case, the implementing powers which Article 291(2) TFEU confers on it.

79 Consequently, the Court must conclude that the requirements set out in Article 291(2) TFEU, in order for implementing powers to be granted to the Council, were satisfied as regards Article 46(2) of Regulation No 267/2012, with the result that it cannot be claimed that the Council infringed Article 215 TFEU.

80 For all of these reasons, the first plea of illegality, based on a breach of Article 215 TFEU, must be rejected as unfounded.

The second plea of illegality, directed against Article 20(1)(c) of Decision 2010/413, as amended by Article 1(7) of Decision 2012/35, and Article 23(2)(d) of Regulation No 267/2012, alleging infringement of the values and fundamental rights protected by Articles 2 TEU, 21 TEU and 23 TEU and by the Charter of Fundamental Rights

81 The applicant pleads the unlawfulness of Article 20(1)(c) of Decision 2010/413, as amended by Article 1(7) of Decision 2012/35, and of Article 23(2)(d) of Regulation No 267/2012, on the basis of which the contested measures were adopted, on the ground that they infringe the values and fundamental rights protected by Article 2 TEU, Article 21 TEU and Article 23 TEU and the Charter of Fundamental Rights. In the event that, contrary to what it contends, those provisions are interpreted as not requiring the Council to establish the existence of any link, direct or indirect, between its activities and nuclear proliferation, they would give it the power to affect a person’s right to property and freedom of commerce on the basis of an extremely broad and vague criterion, namely ‘the provision of support to the Government of Iran’. The Council thus enjoys an arbitrary power in respect of any person who, in its view, provides support to the Government of Iran. The contested acts, in so far as they are based on the provisions concerned, are thus deprived of any legal basis.

82 The Council, supported by the Commission, responds that the applicant’s arguments are erroneous and contends that the second plea of illegality should be rejected.

83 By its second plea of illegality, the applicant, in essence, questions the interpretation and the legality of the criterion of support, in particular, financial support, provide to the Government of Iran, set out in Article 20(1)(c) of Decision 2010/413, as amended by Article 1(7) of Decision 2012/35, and Article 23(2)(d), of Regulation No 267/2012 (the ‘criterion at issue’). In particular, the applicant asks whether and to what extent that criterion is compatible with the values enshrined in Article 2 TEU, to which the decisions adopted in the field of the CFSP must conform in accordance with Articles 21 TEU and 23 TEU, and also with fundamental rights, in particular the right to property, respect for which is required by Articles 17 and 52 of the Charter of Fundamental Rights, in so far as, according to the applicant, it confers on the Council an arbitrary power to impose restrictive measures on persons and entities without having to establish that the activities which they carry out have a direct or indirect link with nuclear proliferation.

84 To the extent that the applicant requests, in the present case, the Court to review the lawfulness of the criterion at issue in the light of the certain values enshrined in the EU Treaty or certain rights protected by the Charter of Fundamental Rights, it must be recalled that the EU judicature must, in accordance with the powers conferred on it by the Treaty, ensure the review, in principle the full review, of the lawfulness of all Union acts in the light of the fundamental rights forming an integral part of the European Union legal order. That obligation is expressly laid down by the second paragraph of Article 275 TFEU (see judgments of 28 November 2013 in Council v Fulmen and Mahmoudian, C‑280/12 P, ECR, EU:C:2013:775, paragraph 58 and the case-law cited, and in Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, ECR, EU:C:2013:776, paragraph 65 and the case-law cited).

85 Thus, while the Council has a broad discretion to define the general criteria for applying restrictive measures (see, to that effect, judgment of 21 April 2015 in Anbouba v Council, C‑605/13 P, ECR, EU:C:2015:248, paragraph 41 and the case-law cited), so that the EU judicature carries out only a limited review of the assessment of the considerations of appropriateness which govern such a definition (see, to that effect and by analogy, judgments of 9 July 2009 in Melli Bank v Council, T‑246/08 and T‑332/08, ECR, EU:T:2009:266, paragraphs 44 and 45, and 14 October 2009 in Bank Melli Iran v Council, T‑390/08, ECR, EU:T:2009:401, paragraphs 35 and 36), the fact remains that, once the Council establishes the general criteria, the EU judicature carries out a full review of whether those criteria comply with EU law.

86 That having been stated, in the first place, the Court must first examine the applicant’s argument that the criterion at issue is aimed at either direct support to nuclear proliferation or support to the government in the implementation of nuclear proliferation.

87 This argument is based on a confusion between the criterion at issue, which is solely relevant in the present case, and the criterion relating to the provision of ‘support for [nuclear proliferation],’ as stated in Article 20(1)(b) of Decision 2010/413, Article 16(2)(a) of Regulation No 961/2010 and Article 23(2)(a) of Regulation No 267/2012, which the Council allegedly applied in the measures annulled by the judgment in Post Bank v Council, cited in paragraph 26 above (EU:T:2013:402, paragraphs 80, 85 and 96).

88 In that regard, it should be noted that the criterion at issue and the criterion relating to the provision of ‘support for [nuclear proliferation]’ are two distinct, alternative, criteria for the adoption of restrictive measures in respect of a person or entity. The criterion for the provision of ‘support for [nuclear proliferation]’ implies that the existence of a link, direct or indirect, between the activities of the person or entity concerned and nuclear proliferation is established (see, to that effect, judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraph 139). The criterion at issue, which extends the scope of the restrictive measures in order to reinforce the pressure being brought to bear on the Islamic Republic of Iran, it had, due to being drafted in terms which were too general to satisfy the requirements of EU primary law, in particular the fundamental rights guaranteed by the Charter of Fundamental Rights, to be interpreted in such a way as to comply with EU law such that it covers only the activity of the person or entity concerned which, regardless of any link, direct or indirect, established with nuclear proliferation, is capable, by its quantitative or qualitative significance, of encouraging that proliferation, by providing the Government of Iran with support in the form of resources or facilities of a material, financial or logistical nature which allow it to pursue nuclear proliferation (see, to that effect, judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraphs 118 to 120, 140 and 141). The existence of a link between the provision of such 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 resources and facilities of a material, financial or logistical nature, in order to oblige it to end nuclear proliferation as a result of insufficient financial resources (judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraph 140).

89 Accordingly, the Court must reject as unfounded the applicant’s argument that the criterion at issue requires either direct support to nuclear proliferation or support to the government in the implementation of nuclear proliferation

90 In the second place, the Court must examine the applicant’s argument that, in essence, the criterion at issue undermines certain fundamental values and rights protected by EU law in so far as it is extremely broad and vague as regards the persons and entities which it covers and is unrelated to the objectives pursued by the legislation in question and, therefore, it confers an arbitrary power on the Council.

91 It must be acknowledged that, by its very broad formulation, the criterion at issue confers a significant discretion on the Council. However, contrary to what the applicant maintains, that discretion is not arbitrary or inconsistent with the values and rights protected by EU law, for the following reasons.

92 First, contrary to what the applicant claims, although the criterion at issue does not require the Council to establish a link, direct or indirect, between the activities of the person or entity subject to restrictive measures and nuclear proliferation (see paragraph 88 above), it remains relevant to the objective, pursued by Decision 2010/413 and by Regulation No 267/2012, of combatting nuclear proliferation, in so far as it rests on the presumption that the Government of Iran relies on the resources and facilities of a material financial or logistical nature at its disposal in order to continue such proliferation (see, to that effect, judgment of National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraphs 120 and 140).

93 Second, contrary to what the applicant claims, the criterion at issue is not aimed at just any form of support, no matter how small or symbolic it may be, provided to the Government of Iran, but covers only forms of support which, by their quantitative or qualitative significance, enable that government to pursue nuclear proliferation. Interpreted, subject to review by the EU judicature, by reference to the objective of applying pressure on the Iranian Government to end nuclear proliferation, the criterion at issue thus objectively defines a limited category of persons and entities that may be subject to fund-freezing measures, namely those providing support to the Iranian Government which, through its quantitative or qualitative significance is likely to allow it to pursue nuclear proliferation (see, to that effect, judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraph 119).

94 Third, the discretion conferred on the Council by the criterion at issue is counterbalanced by an obligation to state reasons and by strengthened procedural rights, guaranteed by case-law (judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraph 122; also see, by analogy, judgments of 21 November 1991 in Technische Universität München, C‑269/90, ECR, EU:C:1991:438, paragraph 14, and 18 July 2013 in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, ECR, EU:C:2013:518, paragraph 114).

95 As has already been stated at paragraphs 91 to 94 above, the criterion at issue limits the Council’s discretion, by establishing objective criteria, and ensures the level of predictability required under EU law (judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraph 123; also see, by analogy, judgment of 22 May 2008 in Evonik Degussa v Commission, C‑266/06 P, EU:C:2008:295, paragraph 58), in particular by the principle of legal certainty, which is one of the general principles of EU law and requires that rules of law be clear, precise and predictable in their effects, in particular where, as is the case here, they may have negative consequences on the persons and entities at which they are aimed (see, to that effect, judgment of National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraphs 112, 113, 116 and 117).

97 In the third place, the Court must examine the applicant’s argument that, in essence, the application of the criterion at issue in the contested measures resulted in an unnecessary and disproportionate infringement of its rights and freedom, including, its right to property and freedom to trade.

98 In that regard, it must be pointed out that, since the relevant provisions of Decision 2010/413 and Regulation No 267/2012 provide for the adoption of fund-freezing measures on the basis of the criterion at issue, any interference with the right to property or the freedom to trade resulting from the application of that criterion is consistent with Article 52(1) of the Charter of Fundamental Rights, which states that any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law (judgment in National Iranian Oil Company v Council, cited in paragraph 64 above, EU:T:2014:678, paragraph 124).

99 In addition, according to the case-law, by virtue of the principle of proportionality, which is one of the general principles of EU law, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures should be appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment in Bank Melli Iran v Council, cited in paragraph 56 above, EU:T:2013:397, paragraph 179 and the case-law cited).

100 In the present case, in the light of the prime importance of the preservation of peace and international security, the Council was entitled to take the view, without exceeding the bounds of its discretion, that the interference with the right to property or the freedom to trade resulting from the application of the criterion at issue was appropriate and necessary in order to apply pressure on the Iranian Government to oblige it to end its nuclear proliferation (see, by analogy, judgment of 13 March 2012 in Melli Bank v Council, C‑380/09 P, ECR, EU:C:2012:137, paragraph 61).

101 Therefore, the Court must conclude that the application of the criterion at issue in the contested measures did not result in a disproportionate interference with the applicant’s right to property or freedom to trade and that its argument, in that regard, must be rejected as unfounded.

102 For all the foregoing reasons, the second plea of illegality based on an infringement of the fundamental values and rights protected by EU law must be rejected as unfounded.

The first plea, alleging a manifest error in the assessment of the facts and infringement of Article 20(1) of Decision 2010/413, as amended by Article 1(7) of Decision 2012/35, and of Article 23(2)(d) of Regulation No 267/2012

103 The applicant puts forward a claim, which necessarily in the alternative to the second plea of illegality, that the Council committed a manifest error of assessment of the facts and infringed Article 20(1) of Decision 2010/413, as amended by Article 1(7) of Decision 2012/35, and Article 23(2)(d) of Regulation No 267/2012, in adopting the contested acts. First, the applicant contends that the Council committed a manifest error of assessment of the facts in the contested acts, in that, as is apparent from the letters of 10 October and 18 November 2013, it presumed that the applicant provided financial support for the Government of Iran from the fact that it was a state-owned company, although as stated in the letter of 31 October 2013, that capacity alone did not cause it to provide support of any kind to the Government of Iran. Its mission is only a public service consisting in providing services to its customers and to the population of Iran and the profits which it may make could be reinvested in order to extend and improve its services for the benefit of its customers. It has increased the number of its rural banking offices. According to case-law, it is for the Council to provide evidence of the facts and the circumstances on which it relies in order to impose the restrictive measures, so that the EU judicature can exercise its power of review. The Council should have established inter alia that the applicant generated profits from its activities and that the latter were paid to the budget of the State or of the Government of Iran, which it failed to do in the present case. Second, the applicant maintains that the Council infringed Article 20(1) of Decision 2010/413, as amended by Article 1(7) of Decision 2012/35, and Article 23(2)(d) of Regulation No 267/2012, by adopting the contested acts, in that it did not establish a link, whether direct or indirect, between the applicant’s activities and nuclear proliferation. Those provisions, interpreted in the light of the case-law, required the Council to prove the existence of such a link, which it failed to do in the present case.

104 The Council, supported by the Commission, disputes the applicant’s arguments, and contends that the first plea should be rejected as unfounded.

105 In the first place, the Court must examine the complaint of a manifest error of assessment of the facts allegedly committed by the Council in the contested acts in so far as, as is clear from the letters of 10 October and 18 November 2013, it inferred that the financial support was provided by the applicant to the Government of Iran from its status as a company which is majority-owned by the Government of Iran.

106 As noted in paragraph 84 above, the EU judicature must, in accordance with the powers conferred on them by the FEU Treaty, ensure, in principle, the full review, of the lawfulness of the decision by which restrictive measures are adopted in the light of the fundamental rights forming an integral part of the European Union legal order. Those fundamental rights include the right to effective judicial protection (see judgment in Council v Fulmen and Mahmoudian, cited in paragraph 84 above, EU:C:2013:775, paragraph 59 and the case-law cited).

107 The review of the legality of decisions adopting restrictive measures is not limited, as the applicant appears to contend, to only reviewing whether there was a manifest error of assessment.

108 The effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights also requires the EU judicature to ensure that the decision, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the allegations of the factors in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (see judgment in Council v Fulmen and Mahmoudian, cited in paragraph 84 above, EU:C:2013:775, paragraph 64 and the case-law cited).

109 In that respect, it is the task of the competent European Union authority to establish, where it is challenged, that the reasons relied on against the person or the entity concerned are well founded, and not the task of the person or the entity concerned to adduce evidence of the negative, that those reasons are not well founded (see judgment in Council v Fulmen and Mahmoudian, cited in paragraph 84 above, EU:C:2013:775, paragraph 66 and the case-law cited).

110 It should however be recalled that, for the purposes of assessing the merits of the reasons given against a person subject to restrictive measures, such as fund-freezing measures, the EU judicature may rely on all of the evidence which has been submitted to it, both inculpatory or exculpatory, by the parties, during the judicial proceedings as the case may be (see, to that effect, judgments in Commission and Others v Kadi, cited in paragraph 94 above, EU:C:2013:518, paragraphs 123 and 137, and Council v Fulmen and Mahmoudian, cited in paragraph 84 above, EU:C:2013:775, paragraph 68). The fact that a piece of evidence has been submitted as exculpatory evidence by the person subject to the restrictive measures does not prevent that evidence from possibly being used against him to support the merits of the reasons underpinning the restrictive measures taken against him (see, to that effect and by analogy, judgments in Commission and Others v Kadi, cited in paragraph 94 above, EU:C:2013:518, paragraphs 123 and 137; Council v Fulmen and Mahmoudian, cited in paragraph 84 above, EU:C:2013:775, paragraph 68; of 29 April 2015 in National Iranian Gas Company v Council, T‑9/13, on appeal, EU:T:2015:236, paragraphs 163 and 164, and Bank of Industry and Mine v Council, T‑10/13, ECR, on appeal, EU:T:2015:235, paragraphs 182, 183 and 185).

111 The question whether the Council was entitled to consider, when adopting the contested measures, that the applicant could be subject to restrictive measures pursuant to the criterion at issue must be determined in the light of the case-law cited in paragraphs 106 to 110 above.

112 In the present case, according to what the Council had stated in the letter of 10 October 2013, the contested measures are based on a new statement of reasons, which states as follows:

‘Company which is majority owned by the Government of Iran and provides financial support to the Government of Iran.’

113 In addition, by the letter of 18 November 2013, which, as is apparent from the non-confidential version of the email produced by the applicant in response to a measure of organisation of procedure adopted by the Court (paragraph 41 above), was communicated to the applicant by its lawyer on 20 November 2013, the Council sent to it the following clarifications:

‘In particular, since [the applicant] is majority-owned by the Government of Iran and is engaged in commercial activities, the Government of Iran would benefit from profits made by [the applicant].’

114 Finally, attached to the letter of 18 November 2013, and following a request by the applicant in the letter of 31 October 2013, the Council sent to the applicant the documents from RELEX of 19 September 2013, bearing the reference MD 126/13 and of 30 September bearing the reference MD 140/13 to 144/13 which reproduced pages from the applicant’s website and which were freely accessible on the internet. Those documents proving that the Iranian Government, through the Ministry of Economy and Finance of Iran, holds a majority stake in the capital of the applicant, even if the figures presented in these vary between 75% and 59%.

115 All those grounds and that evidence, which were notified to the applicant in good time before the present action was brought on 29 January 2014, must be taken into consideration, according to the case-law cited in paragraph 110 above, in order to assess whether the Council erred, in the present case, in its assessment of the facts by imposing restrictive measures on it on the basis of the criterion at issue.

116 It is clear from paragraphs 88, 92 and 93 above that the Council can lawfully impose restrictive measures on any person or entity engaged in activities which, even if they do not have as such a link, direct or indirect, with nuclear proliferation, are, however, likely to promote it, by providing the Government of Iran with resources or facilities of a material, financial or logistical nature which, by their quantitative or qualitative significance, enable it to pursue nuclear proliferation.

117 In the present case, the applicant does not dispute that it is majority owned by the Iranian Government. In response to a measure of organisation of procedure adopted by the Court (paragraph 40 above), it has also indicated that, on 16 November 2013, when the contested measures had been published, that shareholding was 51%. The applicant does not deny having made quantitatively significant profits in the exercise of its commercial activities. In response to a measure of organisation of procedure adopted by the Court (paragraph 40 above), it has thus indicated that it made a profit of 75 397 million Iranian Rials (IRR) (approximately EUR 6 million at the official exchange rate published on the website of the Iranian Central Bank on the internet, in effect at the end of fiscal year 2009) for the period between 20 March 2008 to 20 March 2009, in the amount of IRR 124 025 million (approximately EUR 9 million at the official exchange rate in effect at the end of fiscal year 2010) for the period from 20 March 2009 to 20 March 2010, amounting to IRR 204 123 million (approximately EUR 14 million at the official exchange rate in effect at the end of the fiscal year 2011) for the financial period from 20 March 2010 to 20 March 2011, amounting to IRR 63 139 million (almost EUR 4 million at the official exchange rate in effect at the end of the fiscal year 2012) in respect of the period from 20 March 2011 to 20 March 2012 and IRR 69 739 million (approximately EUR 4.5 million at the official exchange rate in effect at the end of fiscal year 2013) in respect of the period from 20 March 2012 to 20 March 2013.

118 In the absence of objection by the applicant, the Council was not required to provide, in accordance with the case-law cited in paragraph 109 above, other evidence than that related to the transfer of the profits realised by the applicant to the State or the Iranian Government budget and the qualitatively or quantitatively significance of the financial support thus given to substantiate, in that regard, the validity of the contested measures.

119 The applicant complains that the Council assumed that it transferred the profits made in the exercise of its business to the State or the Iranian Government budget. The Council contends that the distribution of dividends to shareholders is a consequence resulting from the company law applicable to the applicant, without providing further details.

120 However, it is apparent from Article 29 of the applicant’s Articles of Association, which it placed in the case-file for the present proceedings, that the members of the board of directors ‘are selected from among shareholders [at an ordinary] general assembly’ and that ‘[a]ll of them can be removed ...’ According to Article 27 of the Articles of Association, in the general meeting of shareholders, ‘decisions are approved by a majority plus 1 of votes’ and ‘[a] [r]elative majority is used to select the directors ...’. Thus, the Iranian Government, which always has a relative majority in the applicant’s general assembly of shareholders, exercises, in principle, control over the appointment of members of the applicant’s board of directors and thus over the decisions taken by that board of directors and over the decisions taken in the ordinary general meeting of shareholders of the applicant. As is apparent respectively from Articles 39 and 20 of the Articles of Association, the board of directors has power to ‘[suggest] dividing profit[s] among shareholders’ and the Annual General Meeting has jurisdiction to ‘[approve] dividends amounts’. Through this, as the Council, supported by the Commission, correctly observes, the Iranian Government is able to secure a substantial share of the profits made by the applicant in the course of its commercial activities, which is transferred to it in the form of dividends.

121 The applicant does not dispute that the aforementioned articles of its Articles of Association allow the Iranian Government to obtain the distribution of profits in the form of dividends, but simply observes that those provisions ‘do not impose’ any such distribution and the Council has not demonstrated that such distribution occurred in the present case.

122 In the present case, it is true that the applicant’s Articles of Association impose no obligation to distribute dividends. The Court therefore needs to determine whether, in the present case, there is evidence or indicia that such distribution did indeed occur and whether it was likely to provide the Iranian Government with qualitatively or quantitatively important financial support.

123 In response to a measure of organisation of procedure adopted by the Court (paragraph 40 above), the applicant stated that profits were, inter alia, allocated to a capital increase which took place during the fiscal year 2014 (financial year 1393 in the Iranian calendar) and that they were never distributed as dividends, for various accounting and legal reasons. In addition, the applicant claimed that ‘Articles 7, 8 and 10 of the Iranian Law [on] Usury [Interest free] provide[d] for possible alternative use of the Bank’s profits [other] than [for] redistribution’.

124 First, regarding the provisions of the Iranian Law on Usury cited by the applicant, they are included in the chapter of the law devoted to ‘banking facilities’. The funding envisaged in those facilities relate, in principle, to the very exercise of the banks’ banking activities and not, as the applicant submits, to the method of the allocation of the profits which they make. In any event, the applicant does not claim that the rules governing allocations are mandatory such that they do not prejudice the possibility for the Iranian Government, in its capacity as the majority shareholder in the applicant, of having the profits made by the applicant in connection with its commercial activities transferred to it in the form of dividends.

125 Second, regarding the distribution of dividends by the applicant and as stated by the Council at the hearing, according to the documents submitted by the applicant in response to a measure of organisation of procedure adopted by the Court (paragraph 40 above) either, pursuant to the applicant’s Articles of Association, or pursuant to a legal obligation on the applicant, part of the profits made by the applicant was distributed to the Iranian Government, which corresponds to the deferred payment, in March 2009, of IRR 4 036 million (approximately EUR 319 000 at the official exchange rate in effect at the end of the fiscal year 2009) for the financial year 2007-2008, the immediate payment of IRR 33 819 million (approximately EUR 2.7 million at the official exchange rate in effect at the end of fiscal year 2009) for the financial year 2008-2009, and the deferred payment, in March 2011, of IRR 49 524 million (approximately EUR 3.4 million at the official exchange rate in effect at the end of the fiscal year 2011) for the financial year 2009-2010. Furthermore, it is apparent from those documents that deferred dividend payments were decided in March 2011 in the amount of IRR 12 402 million (approximately EUR 844 000 at the rate of exchange in effect at the end of the fiscal year 2011) for the financial year 2009-2010, in March 2012, amounting to IRR 12 402 million (approximately EUR 768 000 at the official exchange rate in effect at the end of the fiscal year 2012) for the financial year 2008-2009 in March 2013, in the amount of IRR 16 103 million (approximately EUR 1 million at the official exchange rate in effect at the end of fiscal year 2013) for the financial year 2010-2011 and 2011-2012.

126 Given the amounts set out in paragraph 125 above, particularly those specifically rewarding the government for its stake in the capital of the applicant, which, contrary to what it argued at the hearing, are far from modest, the Court must conclude that the Council was entitled, without committing any error of assessment, to find that the applicant provided quantitatively significant financial resources to the Iranian Government enabling it to pursue nuclear proliferation. Accordingly, the Council was entitled, without committing any error of assessment, to apply the criterion at issue to the applicant in the contested acts.

127 The Court must therefore reject the complaint alleging error of assessment of the facts as unfounded.

128 In the second place, the Court must examine the claim that the Council infringed Article 20(1) of Decision 2010/413, as amended by Article 1(7) of Decision 2012/35, and Article 23(2)(d) of Regulation No 267/2012, in that, in the contested acts, it did not establish a link, be it direct or indirect, between the applicant’s activities and nuclear proliferation.

129 In that regard, suffice it to note that, as is clear from paragraphs 88 and 92 above, the criterion at issue does not require the Council to demonstrate that the specific activities of the person or entity concerned have, as such, a direct or indirect link to nuclear proliferation. For that criterion to be applicable, it is enough that those activities are capable of encouraging nuclear proliferation, by providing the Iranian Government with resources or facilities of a material, financial or logistical nature which enable it, by their quantitative or qualitative importance, to pursue nuclear proliferation activities.

130 Accordingly, the Court must reject, as unfounded, the complaint alleging infringement of Article 20(1) of Decision 2010/413, as amended by Article 1(7) of Decision 2012/35, and of Article 23(2)(d) of Regulation No 267/2012.

131 Therefore, the first plea must therefore also be rejected in its entirety as unfounded.

The second plea, alleging infringement of the principles of equality, non-discrimination and sound administration

132 The applicant maintains that, by adopting the contested acts solely on the ground that it was a company majority-owned by the Government of Iran and that it was engaged in commercial activities, the Council infringed the principle of equality and the principle of non-discrimination, as affirmed inter alia in Article 21(1) of the Charter of Fundamental Rights, in that it treated the applicant differently from other companies majority-owned by the Government of Iran which have not been subject to restrictive measures. In the letter of 18 November 2013, the Council itself acknowledged that it made an arbitrary choice of companies to subject to restrictive measures, according to its view of the impact those measures would have in the context of the European Union’s policy objectives. In those pleadings, the Council, supported by the Commission, also failed to explain the reasons why the applicant had been treated differently to other Iranian publicly-owned companies. By acting in that way, the Council also infringed the principle of sound administration — according to which it is required to act with due care and in good faith — by adopting the contested measures in an arbitrary way without complying with the ruling of the Court in the judgment in Post Bank v Council, cited in paragraph 26 above (EU:T:2013:402).

133 The Council, supported by the Commission, disputes the applicant’s arguments, and contends that the second plea should be dismissed as unfounded.

134 In the present case, the applicant was found, in the contested acts, to be a person providing financial support to the Iranian Government, pursuant to the criterion at issue, and, as is clear from the examination of the present action, the applicant has not put forward any plea in law capable of calling into question the validity of that finding.

135 In those circumstances, even if the Council had in fact failed to adopt measures freezing the funds of certain persons meeting the criterion at issue and to examine, carefully and impartially, all the relevant evidence relating to those persons, the applicant cannot successfully rely on that fact, because the principle of equal treatment and non-discrimination and the principle of sound administration must be reconciled with the principle of legality, according to which no one may rely, to his own benefit, on an unlawful act committed in favour of another (see, judgment in Bank Melli Iran v Council, cited in paragraph 85 above, EU:T:2009:401, paragraph 59 and the case-law cited).

137 The applicant maintains that, in so far as the reason for the contested acts is the impact they must have in the context of the European Union’s general objectives, those acts are based on reasons which are inadequate and, as such, should not be taken into account by the Court, in accordance with the case-law. The inadequacy of that statement of reasons stems from the fact that it is based on a vague and unclear criterion and, in essence, does not state to what extent the contested acts would enable it to combat nuclear proliferation effectively.

138 The Council, supported by the Commission, disputes the applicant’s arguments and contends that the third plea should be rejected as unfounded.

139 By the present plea, the applicant disputes, in substance, the validity of the grounds based on the impact of restrictive measures taken against it in the context of the general objectives of the European Union, which, according to the applicant, were adopted by the Council in the contested acts.

140 As the Council correctly states, it is clear from the letters of 10 October and 18 November 2013 and the contested acts themselves that they were adopted on the sole ground that the applicant fulfilled the conditions set out by the criterion at issue to have a measure freezing funds imposed on it (see paragraphs 112 and 113 above).

141 Furthermore, contrary to what the applicant contends, the reference, in the letter of 18 November 2013, to the impact of the contested acts in the context of the general objectives of the Union should not be understood as the Council having expressed its intention to apply an additional criterion to the applicant, but as it having expressed that, in the present case, the application of the criterion at issue met the general objectives of the European Union, when it put that latter criterion in place.

143 The applicant maintains that, by adopting the contested acts, the Council committed a misuse of powers, since it used its power to impose restrictive measures on certain persons or entities arbitrarily and without complying with the decision of the Court in the judgment in Post Bank Iran v Council, cited in paragraph 26 above (EU:T:2013:402), thus deviating from the objective for which that power had been conferred on it. Following that judgment, the Council should have either ceased to impose restrictive measures on the applicant, or, before continuing to impose such measures on it based on the criterion at issue, it should have investigated the reality of the accusations against the applicant, its actual commercial activities and the possible relationship between those activities and nuclear proliferation. By providing a new reason for the restrictive measures, the Council merely sought to circumvent the judgment in Post Bank Iran v Council, cited in paragraph 26 above (EU:T:2013:402).

144 The Council, supported by the Commission, disputes the applicant’s arguments, and contends that the fourth plea should be dismissed as unfounded.

145 As the Council correctly observes, it is apparent from the letter of 10 October and 18 November 2013 and the contested acts themselves that they were adopted on the sole ground that the applicant fulfilled the conditions under the criterion at issue to have a fund-freezing measure imposed on it (see paragraphs 112 and 113 above). That criterion differs from the criterion relating to ‘[helping] a listed person, [entity or body] to infringe or evade the restrictive measures imposed on it’ set out in Article 20(1)(b) of Decision 2010/413, Article 16(2)(b) of Regulation No 961/2010 and Article 23(2)(b) of Regulation No 267/2012, which had been applied by the Council in the measures annulled by the judgment in Post Bank Iran v Council, cited in paragraph 26 above (EU:T:2013:402, paragraph 96).

146 Contrary to what the applicant contends, the Council, in acting on the basis of a new, lawfully adopted criterion justifying the imposition of restrictive measures against the applicant, accordingly did not circumvent the judgment in Post Bank Iran v Council, cited in paragraph 26 above (EU:T:2013:402), or fail to adopt a measure which that judgment required to be adopted.

147 Moreover, as has already been stated in paragraph 134 above, it is clear from the examination of the present action that the applicant has not put forward any plea in law capable of calling into question the validity of the findings, set out in the contested measures, that it meets the criteria at issue, since the applicant provides financial support to the Iranian Government.

The fifth plea, alleging infringement of the principle of protection of legitimate expectations

149 The applicant maintains that, by adopting the contested acts, the Council infringed the principle of protection of legitimate expectations, since it did not take into account the expectations which the applicant might legitimately have, following the judgment in Post Bank Iran v Council, cited in paragraph 26 above (EU:T:2013:402), that it would no longer be subject to restrictive measures or, at the very least, not without a possible link being established between its commercial activities and nuclear proliferation. In any event, in the light of the agreement concluded on 24 November 2013 between the Islamic Republic of Iran and the People’s Republic of China, the French Republic, the Federal Republic of Germany, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America, supported by the High Representative of the European Union for Foreign Affairs and Security Policy, on a Joint Action Plan, which sets out an approach towards reaching a long-term comprehensive solution to nuclear proliferation, and of the measures implementing that plan, such as Council Decision 2014/21/CFSP of 20 January 2014 amending Council Decision 2010/413 (OJ 2014 L 15, p. 22) and Council Regulation No 2014/42/EU of 20 January 2014 amending Regulation (EU) No 267/2012 (OJ 2014 L 15, p. 18), which are based on the premiss that the Islamic Republic of Iran has put an end to nuclear proliferation and that certain restrictive measures adopted against the latter may be withdrawn, the applicant may legitimately have expected that the justification for the imposition of restrictive measures would no longer be the provision of financial support to the Government of Iran.

150 The Council, supported by the Commission, disputes the applicant’s arguments, and contends that the fifth plea should be rejected as unfounded.

151 In response to the arguments put forward by the Council, supported by the Commission, the applicant maintains that the clear undertakings given by the Islamic Republic of Iran under the first stage of the Joint Plan of Action corresponded to an immediate halt in nuclear proliferation and that recital 3 et seq. of Decision 2014/21 suggested that the European Union was itself persuaded that compliance with those undertakings corresponded to the halting, by the Islamic Republic of Iran, of nuclear proliferation, as was subsequently confirmed by Statement No 140120/02 of the High Representative of the Union for Foreign Affairs and Security Policy of 20 January 2014 on the Joint Plan of Action with Iran. Therefore, after the first stage of the Joint Plan of Action had been implemented, the applicant could legitimately take the view that new restrictive measures could not be imposed on it solely on the ground that it was an Iranian Government-owned company.

152 In view of the conclusions reached in paragraph 145 above, the Court must note that, as the Council correctly argues, the applicant is not justified in claiming that it was able to, from the fact that the measures previously adopted by the Council had been annulled by the judgment in Post Bank Iran v Council, cited in paragraph 26 above (EU:T:2013:402), derive any legitimate expectations as to the application to it, of the criterion at issue. Those latter measures had been adopted applying a different criterion, namely ‘[helping] a listed person, [entity or body] to infringe or evade the restrictive measures imposed on it’ set out in Article 20(1)(b) of Decision 2010/413, Article 16(2)(b) of Regulation No 961/2010 and Article 23(2)(b) of Regulation No 267/2012 (judgment in Post Bank Iran v Council, cited in paragraph 26 above, EU:T:2013:402, paragraph 96).

153 Moreover, neither the agreement concluded on 24 November 2013, nor the measures for implementing it contain assurances from the Union to the effect that no new fund-freezing measures would be adopted on the basis of the criterion at issue. It is not apparent either from the agreement concluded on 24 November 2013, or Decision 2014/21 or Regulation 2014/42, that Article 20(1)(c) of Decision 2010/413, as amended by Article 1(7) of Decision 2012/35 and Article 23(2)(d) of Regulation No 267/2012 was to be abrogated or even that their application was to be suspended. The only restrictive measures for which suspension was provided, for a period of six months, by those latter acts are measures which are distinct from the fund-freezing measures provided for in Article 20 of Decision 2010/413 and Article 23(2)(d) of Regulation No 267/2012. Thus, as the Council correctly argues, the applicant is not justified in claiming that, from the agreement of 24 November 2013 and the measures for implementing it, it could derive a legitimate expectation that the criterion at issue would not be applied to it.

155 The applicant maintains that, by adopting the contested acts, the Council infringed the principle of proportionality laid down in Article 5(4) TFEU, since those acts were manifestly inappropriate in the light of the ruling of the Court in the judgment in Post Bank Iran v Council, cited in paragraph 26 above (EU:T:2013:402), which required the Council, if it wished to continue subjecting the applicant to restrictive measures, to establish a direct or indirect link between its commercial activities and nuclear proliferation. Since the Council did not establish such a link, the restrictive measures which it imposed on the applicant are disproportionate, a fortiori because some restrictive measures imposed on the Islamic Republic of Iran have already been withdrawn by Regulation No 2014/42.

156 The Council, supported by the Commission, disputes the applicant’s arguments, and contends that the sixth plea should be rejected as unfounded.

157 For the reasons already set out in paragraphs 99 to 101 above, the criterion at issue, on the basis of which the contested acts were adopted, cannot be regarded as infringing the principle of proportionality.

158 Furthermore, as has already been observed in paragraphs 134 and 147 above, it appears from the examination of the present action that the applicant has not put forward pleas such as to call into question the validity of the findings contained in the contested acts, according to which it meets the criterion at issue, in so far as it provides financial support to the Iranian Government.

159 In that context, the Court cannot take the view that the contested acts, which apply the criterion at issue to the applicant, are themselves disproportionate.

162 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.

163 Since the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Council.

The interpretation of the applicant’s claims seeking that certain provisions be declared inapplicable to itII – 8

The first plea of illegality, directed against Article 46(2) of Regulation No 267/2012, alleging infringement of Article 215 TFEUII – 11

The second plea, alleging infringement of the principles of equality, non-discrimination and sound administrationII – 25

The fifth plea, alleging infringement of the principle of protection of legitimate expectationsII – 28

The sixth plea, alleging infringement of the principle of proportionalityII – 29

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Post Bank Iran v Council (Judgment) [2016] EUECJ T-68/14 (03 May 2016) URL: http://www.bailii.org/eu/cases/EUECJ/2016/T6814.html Cite as: ECLI:EU:T:2016:263, [2016] EUECJ T-68/14, EU:T:2016:263

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