Bank Mellat v Council ( Combating of nuclear proliferation - Islamic Republic of Iran - Judgment) [2018] EUECJ C-430/16P (06 September 2018)

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(Appeal — Common Foreign and Security Policy (CFSP) — Combating of nuclear proliferation — Restrictive measures against the Islamic Republic of Iran — Sector-specific measures — Restrictions on transfers of funds involving Iranian financial institutions — Strengthening of restrictions — Regime at issue adopted under the provisions of Decision 2012/635/CFSP and of Regulation (EU) No 1263/2012 — Implementation of the Joint Comprehensive Plan of Action on the Iranian nuclear issue — Lifting of all restrictive measures of the European Union related to this issue — Repeal of regime at issue in the course of proceedings before the General Court of the European Union — Effect on interest in bringing proceedings before the General Court — No continuation of interest in bringing proceedings)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 2 August 2016,

Bank Mellat, established in Tehran (Iran), represented by M. Brindle QC and T. Otty QC, J. MacLeod and R. Blakeley, Barristers, and S. Zaiwalla and Z. Burbeza, A. Meskarian and P. Reddy, Solicitors,

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

European Commission, represented by D. Gauci and J. Norris-Usher and by M. Konstantinidis, acting as Agents,

United Kingdom of Great Britain and Northern Ireland, represented by S. Brandon, acting as Agent, and by M. Gray, Barrister,

composed of M. Ilešič, President of the Chamber, A. Rosas, C. Toader, A. Prechal (Rapporteur) and E. Jarašiūnas, Judges,

having regard to the written procedure and further to the hearing on 10 January 2018,

after hearing the Opinion of the Advocate General at the sitting on 30 May 2018,

1 By its appeal, Bank Mellat seeks to have set aside the judgment of the General Court of the European Union of 2 June 2016, Bank Mellat v Council (T‑160/13, ‘the judgment under appeal’, EU:T:2016:331), whereby the General Court dismissed Bank Mellat’s action for annulment of Article 1, point 15, of Council Regulation (EU) No 1263/2012 of 21 December 2012 amending Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 356, p. 34, ‘the regulation at issue’), or of that provision in so far as it does not provide for an exception applicable in respect of Bank Mellat, and its application for a declaration by the General Court that Article 1, point 6, of Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 282, p. 58) is not applicable to it.

2 Bank Mellat, an Iranian commercial bank, was subjected, under several acts of EU law giving effect to resolutions of the Security Council of the United Nations, to a freezing of its funds and economic resources, since it was considered that the bank was involved in Iranian nuclear proliferation. To that effect, that bank’s name was included in the lists annexed to those acts.

3 By judgment of 29 January 2013, Bank Mellat v Council (T‑496/10, EU:T:2013:39), the General Court annulled Bank Mellat’s inclusion on the list in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), 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), on the list in Annex VIII to Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), and on the list in Annex IX to 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) (all of the inclusions concerned being referred to below as ‘the individual restrictive measures’).

4 By judgment of 18 February 2016, Council v Bank Mellat (C‑176/13 P, EU:C:2016:96), the Court of Justice dismissed the appeal brought against the judgment of the General Court.

5 This case concerns the regime of restrictions on transfers of funds and on financial services provided for, in substantially identical terms, in Chapter 2 of Decision 2010/413 and Chapter V of Regulation No 267/2012, as amended, also in essentially identical terms, respectively, by Decision 2012/635 and by the regulation at issue (‘the regime at issue’).

6 In particular, Article 1, point 6, of Decision 2012/635 amended Article 10 of Decision 2010/413. Article 1, point 15, of the regulation at issue amended Article 30 of Regulation No 267/2012 and added Articles 30a and 30b to that regulation.

7 By those amendments, the regime at issue sought to strengthen the sector-specific regime of restrictions already provided for in Chapter II of Decision 2010/413 and in Chapter V of Regulation No 267/2012.

‘In order to prevent the transfer of any financial or other assets or resources that could contribute to Iran’s proliferation-sensitive nuclear activities, or the development of nuclear weapon delivery systems, transactions between Union and Iranian banks and financial institutions should be prohibited, unless authorised in advance by the relevant Member State. This should not prevent the continuation of trade which is not prohibited under Decision [2010/413].’

9 Article 30 of Regulation No 267/2012, as amended by the regulation at issue (‘amended Regulation No 267/2012’), provided for restrictions on financial transactions between, on the one hand, credit and financial institutions and bureaux de change domiciled in Iran and their branches or subsidiaries and credit and financial institutions and bureaux de change that are controlled by persons, entities or bodies domiciled in Iran and, on the other, financial institutions in the European Union.

10 In particular, according to Article 30(2) of amended Regulation No 267/2012, only the following could be carried out: (1) humanitarian transfers; (2) transfers regarding personal remittances; (3) transfers in connection with a specific trade contract provided that such transfer is not prohibited under Regulation No 267/2012; (4) transfers regarding diplomatic missions or consular posts or international organisations; (5) transfers regarding payment to satisfy claims by or against an Iranian person, entity or body, or transfers of a similar nature; and (6) transfers necessary for the execution of the obligations arising from contracts referred to in Article 12(1)(b) of Regulation No 267/2012.

11 According to Article 30(3) to (5) of amended Regulation No 267/2012, the transfers of funds which could be authorised under Article 30(2) of that regulation were subject, according to the circumstances and their purpose, and with effect from various thresholds, to a prior notification obligation and to an obligation to obtain prior authorisation from the competent national authority.

12 Article 30a of amended Regulation No 267/2012 provided, inter alia, for certain restrictions on transfers of funds between, on the one hand, Iranian persons, entities or bodies and, on the other, EU nationals, which are not referred to in Article 30 of that regulation.

13 According to Article 30b(1) of amended Regulation No 267/2012, the restrictions provided for in Articles 30 and 30a of that regulation were not to apply where an authorisation had been granted in accordance with Articles 24, 25, 26, 27, 28 or 28a of that regulation.

14 Article 30b(3) of amended Regulation No 267/2012 provided that, for the purposes of Article 30(3)(b) and (c) and Article 30a(1)(c) of that regulation, the competent authorities were to grant the authorisation, under such terms and conditions as they deemed appropriate, unless they had reasonable grounds to believe that the transfer of funds for which the authorisation was requested might breach any of the prohibitions or obligations provided for in that regulation.

15 In order to implement the Joint Comprehensive Plan of Action of 14 July 2015 concluded with the Islamic Republic of Iran on the Iranian nuclear issue (‘JCPOA’), which provides for the commitment to lift all EU restrictive nuclear-related measures, Article 1, point 17, of Council Decision (CFSP) 2015/1863 of 18 October 2015 amending Decision 2010/413 (OJ 2015 L 274, p. 174), provides that implementation of the measures referred to, inter alia, in Article 10 of Decision 2010/413 is suspended.

16 To that same end, Article 1, point 15, of Council Regulation (EU) 2015/1861 of 18 October 2015 amending Regulation No 267/2012 (OJ 2015 L 274, p. 1), provides, inter alia, that Articles 30, 30a and 30b of Regulation No 267/2012 are deleted.

17 Finally, it follows from Council Decision (CFSP) 2016/37 of 16 January 2016 concerning the date of application of Decision (CFSP) 2015/1863 amending Decision 2010/413 (OJ 2016 L 11 I, p. 1), and from a notice of information from the Council (OJ 2016 C 15 I, p. 1), that the regime at issue ceased to be applicable with effect from 16 January 2016.

18 By application lodged at the General Court Registry on 15 March 2013, Bank Mellat brought an action consisting of three heads of claim, seeking, first, the annulment of Article 1, point 15, of the regulation at issue, second, the annulment of that provision in so far as it does not provide for an exception applicable in respect of the appellant and, third, that the General Court declare that Article 1, point 6, of Decision 2012/635 is not applicable to it.

20 First of all, the General Court held, in paragraph 38 of the judgment under appeal, that it had no jurisdiction, under Article 275 TFEU, to rule on the third head of claim, on the ground that the plea of illegality made under Article 277 TFEU in the context of that third head of claim had not been raised in support of an action for annulment brought against ‘a decision providing for restrictive measures against natural or legal persons’, within the meaning of the second paragraph of Article 275 TFEU, the measures laid down in Article 1, point 6, of Decision 2012/635 being measures of a general nature whose scope is determined by reference to objective criteria.

21 Next, under the fourth paragraph of Article 263 TFEU, the General Court, in paragraphs 59 to 61 of the judgment under appeal, dismissed the action as inadmissible in so far as it concerned, first, Article 30a of Regulation No 267/2012, as introduced by Article 1, point 15, of the regulation at issue, on the ground that Bank Mellat, as a financial institution established in Iran, was not referred to in that provision and, second, the first subparagraph of Article 30b(3) of Regulation No 267/2012, on the ground that that provision did not concern Bank Mellat directly and, moreover, entailed implementing measures.

22 In that context, the General Court, in paragraphs 68 to 78 of the judgment under appeal, also rejected the plea of inadmissibility raised by the Council of the European Union alleging that, at the date of making the application, Bank Mellat had no interest in contesting the legality of the regime provided for in Article 1, point 15, of the regulation at issue, since it was already subject to the individual fund-freezing measures adopted under Regulation No 267/2012, essentially on the ground that, when the annulment of those individual measures took effect following the delivery of the judgment of 18 February 2016, Council v Bank Mellat (C‑176/13 P, EU:C:2016:96), Bank Mellat was automatically subject to the regime at issue, with all the restrictions flowing therefrom, without any further legal act being involved, and therefore retained an interest in contesting it.

23 Finally, on the substance, the General Court rejected the four pleas invoked by Bank Mellat in support of the first and second heads of claim.

– annul Article 1, point 15, of the regulation at issue either in its entirety or in so far as it applies to the appellant;

– declare that Article 1, point 6, of Decision 2012/635 is not applicable to the appellant, and;

– order the Council to pay the costs of the appeal and of the proceedings before the General Court.

25 The Council and the European Commission contend that the Court should dismiss the appeal and order Bank Mellat to pay the costs.

26 The United Kingdom of Great Britain and Northern Ireland requests that the Court dismiss the appeal and allocate its costs to Bank Mellat.

27 The Council submits primarily that Bank Mellat has not established any interest in bringing the proceedings, since the regime at issue was repealed with effect from 16 January 2016.

28 Referring to the Court’s settled case-law, recalled in paragraph 61 of the judgment of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331), the Council submits that Bank Mellat would gain no advantage from the annulment by the Court of the regime at issue.

29 The annulment of that regime would not restore Bank Mellat to its original position, since those measures were of general application and concerned all Iranian financial institutions equally. That annulment also would not lead the Council to make suitable amendments in the future, since those measures have already been lifted.

30 Furthermore, the Council submits that, unlike the situation which was at issue in the case which gave rise to the judgment of 7 June 2007, Wunenburger v Commission (C‑362/05 P, EU:C:2007:322), the regime at issue was repealed and no other relevant procedures subsist which are likely to be invoked or referred to in the future.

31 In addition, since the General Court confirmed, in the judgment under appeal, the legality of the regime at issue, any annulment of it by the Court of Justice could not in any case serve as the basis for an action for liability of the European Union, since the condition relating to the existence of a sufficiently serious breach of a rule of law would not be met.

32 Finally, the Council, referring to the judgment of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331, paragraphs 70 to 74), notes that the regime at issue had no impact on Bank Mellat’s reputation, given that, unlike individual restrictive measures, it concerned all Iranian financial institutions equally.

33 In that respect, that regime does not mean that it has been alleged that the appellant or the other Iranian banks and financial institutions concerned had supported the activities of the Islamic Republic of Iran concerning nuclear proliferation. As is apparent from paragraphs 171 to 173 of the judgment under appeal, that regime is justified by the need to counter the risk of Iranian banks and financial institutions from being used, possibly without their knowledge, to support those activities.

34 The Commission has doubts as to the existence of any interest in bringing proceedings on the part of the appellant at the date of lodging the present appeal.

35 During the entire period when Bank Mellat was subject to the regime at issue, it was also subject to stricter individual restrictive measures, which means, as is apparent from paragraph 75 of the judgment under appeal, that the adoption of the regime at issue did not have an immediate effective impact on it. Therefore, the annulment of the regime at issue would have no real effect on Bank Mellat’s circumstances.

36 Furthermore, the appellant has not shown that the alleged unlawfulness is likely to recur in the future independently of the circumstances which gave rise to the action which it brought, with the result that the principle enshrined in the judgment of 7 June 2007, Wunenburger v Commission (C‑362/05 P, EU:C:2007:322), is not applicable.

37 In addition, the Commission submits that the appeal cannot result in the appellant obtaining compensation going beyond what it already obtained by virtue of the judgment of 18 February 2016, Council v Bank Mellat (C‑176/13 P, EU:C:2016:96), given the more stringent individual restrictive measures at issue in that judgment. Bank Mellat would find it difficult to establish damage to its reputation suffered as a result of the regime at issue during a period in which it was also subject to individual restrictive measures.

38 Bank Mellat claims that it retains an interest in bringing proceedings against the regime at issue on the ground that it would derive an advantage from the annulment of that regime.

39 First of all, Bank Mellat, referring, by analogy, to the judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraphs 50 to 60), maintains that it is necessary to prevent the Council from implementing the relevant sanctions again or adopting, in the future, a similarly unlawful measure, if it were decided to reinstate those sanctions before their repeal becomes final on 20 October 2023, which would be possible under the JCPOA if the Islamic Republic of Iran did not comply with certain conditions.

40 Next, according to the appellant, the annulment of the Financial Embargo may serve as the basis for an action for compensatory damages.

41 Moreover, the fact that an act has been repealed or expired does not deprive an applicant of its interest in establishing its illegality, since a repeal or an expiry does not amount to an annulment.

42 Finally, it submits that the regime at issue had a negative effect on Bank Mellat’s reputation and its annulment would constitute a form of non-compensatory reparation, since the Council’s claims that Iranian banks, which necessarily include Bank Mellat, one of the largest Iranian banks, are involved in supporting nuclear proliferation are particularly harmful, especially for that bank, since it has been able to establish, in the context of the proceedings seeking annulment of the individual restrictive measures imposed on it, that it does not support nuclear proliferation.

43 The Council, supported by the Commission, claims, in essence, that Bank Mellat lost its interest in bringing proceedings against the regime at issue after the deletion of that regime with effect from 16 January 2016, a deletion which aims to implement the JCPOA.

44 In that respect, it should be noted that, before the General Court, the Council contended that, on the date of bringing the action, Bank Mellat had no interest in contesting the legality of Article 1, point 15, of the regulation at issue, since it was already subject to individual fund and asset freezing measures.

45 In paragraphs 74 to 77 of the judgment under appeal, the General Court rejected that plea of inadmissibility on the basis of the following reasoning:

‘74 In the present case, at the time when the action was brought, [Bank Mellat] was subject to individual restrictive measures ... linked to its alleged involvement in nuclear proliferation. Although those restrictive measures were annulled by the [judgment of 29 January 2013, Bank Mellat v Council (T‑496/10, EU:T:2013:39)], the taking effect of that annulment was suspended until the determination of the appeal, in accordance with Article 60 of the Statute of the Court of Justice of the European Union.

75 Accordingly, it is certainly true that the adoption of the regime at issue did not have an immediate effective impact on [Bank Mellat], inasmuch as the individual restrictive measures to which it had previously been made subject imposed more severe restrictions. ...

76 However, it must be noted that the regime at issue as such applies to all financial institutions established in Iran, and consequently also to [Bank Mellat]. This means, inter alia, that when, subsequently, the annulment of the individual restrictive measures relating to [Bank Mellat] took effect following the dismissal of the Council’s appeal against the judgment [of 29 January 2013, Bank Mellat v Council (T‑496/10, EU:T:2013:39)], [Bank Mellat] was automatically subject to that regime, with all the restrictions flowing therefrom, without any further legal act being involved.

77 In those circumstances, a finding in the present case that [Bank Mellat] has no interest in bringing proceedings against Article 1(15) of the regulation [at issue] would have the effect of infringing [Bank Mellat’s] right to effective judicial protection, in so far as, after the definitive disappearance of the individual restrictive measures relating to [Bank Mellat], it would be subject to the effects of the regime at issue but would not be entitled to seek annulment of Article 1(15) of the regulation [at issue], because the period for bringing an action would have expired.’

46 The assertion in the second sentence of paragraph 76 of the judgment under appeal is manifestly incorrect, since, from 18 February 2016, the date of the annulment of the individual restrictive measures applicable to Bank Mellat, following the delivery of the judgment of 18 February 2016, Council v Bank Mellat (C‑176/13 P, EU:C:2016:96), it was not in fact ‘automatically subject’ to the regime at issue, since that regime had already been deleted with effect from 16 January 2016.

47 Therefore, contrary to the findings in paragraph 77 of the judgment under appeal, it cannot be maintained that Bank Mellat still had an interest in bringing proceedings against the regime at issue on the ground that it should be able to bring an action seeking the annulment of that regime, since it became applicable to it with effect from 18 February 2016.

48 Since the repeal of the regime at issue took place before the delivery of the judgment under appeal, the question was whether it had removed Bank Mellat’s legal interest in bringing an action for the annulment of that regime.

49 As the need to adjudicate on the ground that there is no continuing interest in bringing proceedings may, in accordance with Article 131 of the Rules of Procedure of the General Court and with Article 149 of the Rules of Procedure of the Court, be raised by the EU Courts of their own motion, the Court may, in the context of the present appeal, examine, if necessary of its own motion, whether that repeal eliminated Bank Mellat’s interest in bringing proceedings before the General Court (see, by analogy, judgments of 23 April 2009, Sahlstedt and Others v Commission, C‑362/06 P, EU:C:2009:243, paragraph 22, and of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 45).

50 In that regard, it is important to bear in mind that, according to the Court’s settled case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate; that presupposes that the action must be capable, if successful, of procuring an advantage for the party bringing it (judgments of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 61, and of 9 November 2017, HX v Council, C‑423/16 P, EU:C:2017:848, paragraph 30 and the case-law cited).

51 In that context, it is necessary to examine, first of all, whether the principles laid down in the judgment of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331), are applicable to measures such as those imposed by the regime at issue.

52 In the case which gave rise to that judgment, the main question was whether the applicant had retained an interest in bringing an action for annulment of a regulation which included his name on a list of persons and entities suspected of being linked to a terrorist organisation and subject, as such, to a freezing of their funds and assets, where that inclusion on the list had been deleted by a regulation adopted after an action was brought before the General Court against the first of those regulations.

53 In that regard, the Court held that the appellant retained an interest in bringing proceedings in so far as the inclusion, in the contested measure, of his name on that list had caused him clear non-material harm resulting in damage to his reputation caused by ‘the opprobrium and suspicion that accompany the public designation of the persons covered as being associated with a terrorist organisation’ and that the possible annulment of that measure was likely to procure an advantage for him, namely his rehabilitation and, thus, some form of reparation for non-material harm.

54 However, those principles laid down in the judgment of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331), are not transposable to sector-specific restrictive measures such as those imposed by the regime at issue.

55 Such sector-specific restrictive measures, in so far as they apply generally to all banks and financial institutions of the Islamic Republic of Iran, are of a very different nature than the individual fund and asset freezing measures in question in the case which gave rise to that judgment.

56 In that regard, it is necessary to recall that restrictive measures of general application, such as the sector-specific measures in question, do not target identified natural or legal persons, the scope of those measures being determined by reference to objective criteria (see, to that effect, judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 97).

57 In this case, the restrictive measures provided for by the regime at issue consisted essentially in prohibiting transactions between banks and financial institutions of the European Union and of the Islamic Republic of Iran, unless they had been authorised in advance by the Member State concerned, in order to prevent the transfer, possibly without the knowledge of those banks and financial institutions, of any funds, other assets or economic resources likely to contribute to nuclear activities of that State posing a risk of proliferation or to the development of nuclear weapon delivery systems.

58 The fact that the activities of a bank or financial institution, such as Bank Mellat, may have been affected by the sector-specific restrictive measures in question does not mean, as the Advocate General also observed in point 41 of his Opinion, that such measures constitute a penalty for a specific conduct attributable to that entity, since those general measures apply irrespective of the possible involvement of the latter in Iranian nuclear proliferation.

59 Therefore, unlike restrictive measures of individual application, it cannot be maintained that the restrictive measures of general application in question are likely to cause, as regards an individual operator, clear non-material harm resulting in damage to its reputation, comparable to that caused by the opprobrium and suspicion that accompany the public designation of the persons covered as being associated with, for example, a terrorist organisation (see, to that effect, judgment of 8 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 70) or that annulment of those measures would be such as to procure an advantage for Bank Mellat, in the form of its rehabilitation and, thus, to offer it some form of reparation for such non-material harm.

60 Moreover, as regards the effect that the restrictive measures set out in the regime at issue are likely to have on certain rights and freedoms which the banks and financial institutions concerned may enjoy, in so far as those measures may, inter alia, have had the effect of hindering the conclusion of a number of financial transactions, it should be noted, as the Court has held several times, that restrictive measures, by definition, have consequences which affect, inter alia, the right to property and the freedom to pursue a trade or business, thereby causing harm to persons who are in no way responsible for the situation which led to the adoption of the sanctions (see, to that effect, judgments of 30 July 1996, Bosphorus, C‑84/95, EU:C:1996:312, paragraph 22, and of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 149).

61 Even assuming the existence of damage that can be made good, it must be held, as was also correctly noted by the General Court in paragraph 75 of the judgment under appeal, that the adoption of the regime at issue did not have a separate, effective impact on Bank Mellat, inasmuch as the individual restrictive measures to which it had been subject, throughout the application of the regime at issue, imposed more severe restrictions. Thus, in so far as those measures consisted of an overall freezing of its funds and assets, Bank Mellat could not, in any event, carry out any financial transaction prohibited by the sector-specific measures laid down under the regime at issue.

62 Consequently, following the repeal of the regime at issue on 16 January 2016 within the framework of the implementation of the JCPOA, the annulment of the regime at issue by the EU Courts could no longer procure an advantage for Bank Mellat capable of justifying the retention of an interest in bringing proceedings.

63 That conclusion cannot be called into question by Bank Mellat’s argument that its continuing interest in bringing proceedings can be based on the principle laid down by the Court in its judgment of 7 June 2007, Wunenburger v Commission (C‑362/05 P, EU:C:2007:322), since it is necessary to prevent the Council from implementing restrictive measures again, such as those imposed by the regime at issue and which Bank Mellat regards as unlawful, should the Islamic Republic of Iran fail to comply with certain conditions of the JCPOA.

64 In that regard, it follows from the Court’s case-law that, in certain circumstances, an applicant may retain an interest in seeking the annulment of an act repealed in the course of proceedings, in order to induce the author of the contested act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of that act will be repeated (judgment of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 63).

65 However, the principle thus enshrined in the case-law must, as the Advocate General has also stated in point 44 of his Opinion, be limited to situations in which the applicant demonstrates precisely and specifically the existence of a risk of repetition of the alleged unlawfulness.

66 Bank Mellat has merely confined itself to making a general claim that such a risk of repetition exists, without precisely indicating the factors which make it likely that that risk will materialise.

67 Although it cannot definitively be excluded that, in the future, restrictive measures may be adopted again against the Islamic Republic of Iran, as Bank Mellat maintained, in such a case it would be a new situation giving rise, where appropriate, to restrictive measures taking the form either of measures comparable to those imposed by the regime at issue, or of measures of a different nature. However, even assuming the unlawfulness of the regime at issue, which has not been determined by the Court, the mere assumption of the repetition of such alleged unlawfulness by the adoption, in the future, of restrictive measures comparable to that regime is not sufficient to demonstrate, in view, inter alia, of the Council’s broad discretion in defining the subject of the restrictive measures (judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 88), in a sufficiently precise and specific manner, the risk of such a repetition to enable Bank Mellat to retain an interest in bringing proceedings in the present case.

68 It follows that, having regard to the principles enshrined in the case-law recalled in paragraph 50 of this judgment, there was no longer any need for the General Court to adjudicate on the action for annulment brought by Bank Mellat against the regime at issue, since, in the course of proceedings and before the delivery of the judgment under appeal, Bank Mellat had lost any interest in bringing proceedings against the regime at issue. As a result of the regime’s deletion with effect from 16 January 2016 and in the light of the findings made in paragraphs 51 to 67 of this judgment, that action was not capable, if successful, of procuring an advantage for the appellant.

69 In the light of all the above considerations, the judgment under appeal must be set aside.

70 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court may, after quashing the decision of the General Court, itself give final judgment in the matter, where the state of the proceedings so permits. That is the case here.

71 Since the judgment under appeal must be set aside on account of Bank Mellat’s lack of continuing interest in bringing proceedings as applicant before the General Court, it must be held that there is no longer any need for the Court of Justice to rule on the action brought by Bank Mellat before the General Court.

72 Under Article 142 of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings pursuant to Article 184(1) of those rules, where a case does not proceed to judgment the costs are to be in the discretion of the Court.

73 Since the judgment under appeal is set aside, but Bank Mellat has lost its interest in bringing proceedings as applicant before the General Court, it must be held that Bank Mellat and the Council are each to bear their own costs relating to the appeal and to the proceedings at first instance.

74 Under Article 184(4) of its Rules of Procedure, the Court of Justice may decide that an intervener at first instance who has taken part in the written or oral part of the proceedings before the Court is to bear its own costs.

75 Accordingly, the United Kingdom and the Commission shall bear their own costs.

1. Sets aside the judgment of the General Court of the European Union of 2 June 2016, Bank Mellat v Council (T‑160/13, EU:T:2016:331);

2. Declares that there is no need to adjudicate on the action brought by Bank Mellat in Case T‑160/13, seeking the annulment of Article 1, point 15, of Council Regulation (EU) No 1263/2012 of 21 December 2012 amending Regulation (EU) No 267/2012 concerning restrictive measures against Iran, or of that provision in so far as it does not provide for an exception applicable in respect of Bank Mellat, and its application for a declaration by the General Court of the European Union that Article 1, point 6, of Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran is not applicable to it;

3. Orders Bank Mellat and the Council of the European Union each to bear their own costs both in the appeal proceedings and in the proceedings at first instance;

4. Orders the United Kingdom of Great Britain and Northern Ireland and the European Commission to bear their own costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Bank Mellat v Council ( Combating of nuclear proliferation - Islamic Republic of Iran - Judgment) [2018] EUECJ C-430/16P (06 September 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/C43016P.html Cite as: [2018] EUECJ C-430/16P, EU:C:2018:668, [2018] WLR(D) 565, ECLI:EU:C:2018:668

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