Ocean Capital Administration and Others v Council (Judgment) [2015] EUECJ T-420/11 (22 January 2015)

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(Common foreign and security policy — Restrictive measures against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Res judicata — Consequence of an annulment of restrictive measures for the entity owned or controlled by an entity identified as being involved in nuclear proliferation — Temporal effects of an annulment)

Ocean Capital Administration GmbH, established in Hamburg (Germany), and other applicants whose names appear in the annex,

Council of the European Union, represented by M. Bishop and, in Case T‑420/11, by P. Plaza García and, in Case T‑56/12, by M.-M. Joséphidès, acting as Agents,

ACTIONS, in Case T‑420/11, for the annulment of Council Decision 2011/299/CFSP of 23 May 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 136, p. 65), of Council Implementing Regulation (EU) No 503/2011 of 23 May 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 136, p. 26) and of Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1) in so far as those measures concern the applicants, and, in Case T‑56/12, for the annulment of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 319, p. 71), of Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 319, p. 11) and of Regulation No 267/2012 in so far as those measures concern the applicants,

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

having regard to the written procedure and further to the hearing on 29 April 2014,

1 Cases T‑420/11 and T‑56/12 have 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.

2 On 26 July 2010, the names of Islamic Republic of Iran Shipping Lines (‘IRISL’) and of IRISL Multimodal Transport Co. were entered in the list of entities subject to restrictive measures set out 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).

3 Consequently, the names of IRISL and of IRISL Multimodal Transport Co. were entered in the list of entities subject to restrictive measures set out 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) by means of 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).

4 In both Decision 2010/413 and Implementing Regulation No 668/2010, IRISL Multimodal Transport was identified as being ‘[o]wned by IRISL’, ‘[r]esponsible for the transporting of cargo by rail’, and as a ‘wholly controlled subsidiary of IRISL’.

5 Regulation No 423/2007 having been repealed by Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran (OJ 2010 L 281, p. 1), IRISL and IRISL Multimodal transport were included by the Council of the European Union in the list of entities subject to restrictive measures set out in Annex VIII to the latter regulation. The reasons given with respect to IRISL Multimodal Transport were not altered.

6 By Council Decision 2011/299/CFSP of 23 May 2011 amending Decision 2010/413 (OJ 2011 L 136, p. 65), the names of Ocean Capital Administration GmbH and of the 35 other entities that are listed in the annex to this judgment (‘the applicants in Case T‑420/11’) were entered in the list set out in Annex II to Decision 2010/413.

7 Consequently, the names of the applicants in Case T‑420/11 were entered in the list set out in Annex VIII to Regulation No 961/2010 by means of Council Implementing Regulation (EU) No 503/2011 of 23 May 2011 implementing Regulation (EU) No 961/2010 (OJ 2011 L 136, p. 26).

8 Both in Decision 2011/299 and in Implementing Regulation No 503/2011, the following reasons were given in respect of the applicants in Case T‑420/11:

– Ocean Capital Administration was described as a ‘German-based IRISL holding company that, together with IRISL Europe, owns Nari Shipping and Chartering GmbH & Co. KG’, and the Council pointed out that ‘Ocean Capital Administration and Nari Shipping and Chartering also share the same address in Germany as IRISL Europe GmbH’;

– First Ocean Administration GmbH, First Ocean GmbH & Co. KG, Second Ocean Administration GmbH, Second Ocean GmbH & Co. KG, Third Ocean Administration GmbH, Third Ocean GmbH & Co. KG, Fourth Ocean Administration GmbH, Fourth Ocean GmbH & Co. KG, Fifth Ocean Administration GmbH, Fifth Ocean GmbH & Co. KG, Sixth Ocean Administration GmbH, Sixth Ocean Administration & Co. KG, Seventh Ocean Administration GmbH, Seventh Ocean GmbH & Co. KG, Eighth Ocean Administration GmbH, Eighth Ocean GmbH & Co. KG, Ninth Ocean Administration GmbH, Ninth Ocean GmbH & Co. KG, Tenth Ocean Administration GmbH, Tenth Ocean GmbH & Co. KG, Eleventh Ocean Administration GmbH, Eleventh Ocean GmbH & Co. KG, Twelfth Ocean Administration GmbH, Twelfth Ocean GmbH & Co. KG, Thirteenth Ocean Administration GmbH, Fourteenth Ocean Administration GmbH, Fifteenth Ocean Administration GmbH and Sixteenth Ocean Administration GmbH were described as being owned or controlled by IRISL;

– Kerman Shipping Co. Ltd was described as ‘a wholly-owned subsidiary of IRISL’, ‘[l]ocated at the same address in Malta as Woking Shipping Investments Ltd and the companies it owns’;

– Woking Shipping Investments Ltd was described as ‘an IRISL subsidiary that owns Shere Shipping Company Limited, Tongham Shipping Co. Ltd., Uppercourt Shipping Company Limited, Vobster Shipping Company which are all located at the same address in Malta’;

– Shere Shipping, Tongham Shipping, Uppercourt Shipping and Vobster Shipping were described as wholly owned subsidiaries of Woking Shipping Investments, itself owned by IRISL;

– Lancelin Shipping Company Ltd was described as wholly owned by IRISL and the Council pointed out that A. S. was the manager of Lancelin Shipping.

9 By Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413 (OJ 2011 L 319, p. 71), the names of IRISL Maritime Training Institute, Kheibar Co. and Kish Shipping Line Manning Co. were entered in the list set out in Annex II to Decision 2010/413.

10 Consequently, the names of IRISL Maritime Training Institute, Kheibar and Kish Shipping Line Manning were entered in the list set out in Annex VIII to Regulation No 961/2010 by Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11).

11 Both in Decision 2011/783 and in Implementing Regulation No 1245/2011, the following reasons were given in respect of IRISL Maritime Training Institute, Kheibar and Kish Shipping Line Manning:

– IRISL Maritime Training Institute was described as an entity ‘[o]wned or controlled by IRISL’;

– Kheibar was described as an ‘IRISL subsidiary which provides spare parts for shipping vessels’;

– Kish Shipping Line Manning was described as an ‘IRISL subsidiary in charge of crew recruitment and personnel management’.

12 Regulation No 961/2010 having been repealed by Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran (OJ 2012 L 88, p. 1), the names of IRISL Multimodal Transport, IRISL Maritime Training Institute, Kheibar and Kish Shipping Line Manning (‘the applicants in Case T‑56/12’), the applicants in Case T‑420/11 (taken together with the applicants in Case T‑56/12, ‘the applicants’) and the name of IRISL were entered by the Council in the list of entities subject to restrictive measures set out in Annex IX to Regulation No 267/2012. The reasons given with respect to the applicants were not altered.

13 By judgment of 16 September 2013 in Islamic Republic of Iran Shipping Lines and Others v Council, (T‑489/10, ECR, EU:T:2013:453) (‘the IRISL judgment’), the General Court annulled, inter alia, Decision 2010/413, Implementing Regulation No 668/2010, Regulation No 961/2010 and Regulation No 267/2012, in so far as those measures concerned IRISL.

14 By Council Decision 2013/497/CFSP of 10 October 2013 amending Decision 2010/413 (OJ 2013 L 272, p. 46), and by Council Regulation (EU) No 971/2013 of 10 October 2013, amending Regulation No 267/2012 (OJ 2013 L 272, p. 1), the provisions of Decision 2010/413 and of Regulation No 267/2012 laying down the criteria for allowing the adoption of restrictive measures were amended.

15 By Council Decision 2013/685/CFSP of 26 November 2013, amending Decision 2010/413 (OJ 2013 L 316, p. 46) and by Council Implementing Regulation (EU) No 1203/2013 of 26 November 2013, implementing Regulation No 267/2012 (OJ 2013 L 316, p. 1), IRISL’s name was entered, with effect from 27 November 2013, in the lists set out in Annex II to the Decision 2010/413 and in Annex IX to Regulation No 267/2012.

16 By application lodged at the Court Registry on 31 July 2011, Ocean Capital Administration and the 35 other entities whose names appear in the annex to this judgment brought the action in Case T‑420/11.

17 By application lodged at the Court Registry on 9 February 2012, IRISL Maritime Training Institute, Kheibar, Kish Shipping Line Manning, IRISL Multimodal Transport, Kara Shipping and Chartering GmbH and Fairway Shipping Ltd brought the action in Case T‑56/12.

18 By documents lodged at the Court Registry on 30 April 2012, the applicants in both cases, Kara Shipping and Chartering and Fairway Shipping amended their heads of claim following the adoption on 23 March 2012 of Regulation No 267/2012.

19 By order of 14 May 2012, the General Court (Fourth Chamber) dismissed the action in Case T‑56/12 as being manifestly inadmissible in so far as it had been lodged by Kara Shipping and Chartering and by Fairway Shipping, and ordered those parties to bear their own costs.

20 In its observations of 18 June 2012 on the amendment of the claims, the Council contested the admissibility of the action in Case T‑56/12 in so far as it had been lodged by IRISL Multimodal Transport. IRISL Multimodal Transport responded to that contention in its observations of 13 July 2012.

21 Following changes to the composition of the Chambers of the Court of First Instance, the Judge-Rapporteur was assigned to the First Chamber, to which the present case has therefore been allocated.

22 On 16 January 2014 the Court asked the parties to submit written observations on the conclusions to be drawn, in this case, from the IRISL judgment (EU:T:2013:453, paragraph 13 above).

23 The applicants replied by letters of 13 February 2014, in which they submitted that the annulment of the entry of IRISL in the list of entities subject to restrictive measures meant that the restrictive measures imposed on those entities alleged to be linked to IRISL, such as the applicants themselves, must be annulled.

24 The Council replied by letters of 14 February 2014 in which it stated that it had no observations to make.

25 By order of the President of the First Chamber of the Court of 21 March 2014, Cases T‑420/11 and T‑56/12 were joined for the purposes of the oral procedure and the judgment pursuant to Article 50 of the Rules of Procedure of the General Court.

26 The parties presented oral argument and answered the questions put by the Court at the hearing on 29 April 2014.

27 At the hearing, the Council submitted that the first plea in law in Case T‑420/11 and the second plea in law in Case T‑56/12 were inadmissible in that they were based on the illegality of the restrictive measures directed against IRISL. The Council considered that it was not necessary to take into account the annulment of the restrictive measures directed against IRISL, decided by the IRISL judgment (EU:T:2013:453, paragraph 13 above). The applicants presented their observations on the Council’s arguments on this point.

– annul Decision 2011/299, Implementing Regulation No 503/2011 and Regulation No 267/2012 in so far as those measures concern the applicants;

– annul Decision 2011/783, Implementing Regulation No 1245/2011 and Regulation No 267/2012, in so far as they concern the applicants;

30 The Council contends in Cases T‑420/11 and T‑56/12 that the Court should:

Admissibility of the action brought, in Case T‑56/12, by IRISL Multimodal Transport

31 The Council submits that IRISL Multimodal Transport is not entitled to seek the annulment of Decision 2011/783 and of Implementing Regulation No 1245/2011 because those measures are not directed against it. The restrictive measures directed against IRISL Multimodal Transport were introduced by Decision 2010/413 and by Implementing Regulation No 668/2010, with the result that Decision 2011/783 and Implementing Regulation No 1245/2011 are merely confirmatory measures with respect to IRISL Multimodal Transport against which an action cannot be brought.

32 In that regard, it must be noted that, indeed, Decision 2011/783 and Implementing Regulation No 1245/2011 do not refer to IRISL Multimodal Transport by name.

33 However, recitals 2 and 3 in the preamble to Decision 2011/783, state as follows:

‘(2) The Council has carried out a complete review of the list of persons and entities, as set out in Annex II to [Decision 2010/413], to which Articles 19(1)(b) and 20(1)(b) of that Decision apply. When doing so, the Council took account of observations submitted by those concerned.

(3) The Council has concluded that the persons and entities listed in Annex II to [Decision 2010/413] should continue to be subject to the specific restrictive measures provided for in that Decision.’

34 Recitals 2 and 3 in the preamble to Implementing Regulation No 1245/2011, for their part, state:

‘(2) The Council has carried out a complete review of the list of persons, entities and bodies, as set out in Annex VIII to [Regulation No 961/2010], to which Article 16(2) of that Regulation applies. When doing so, the Council took account of observations submitted by those concerned.

(3) The Council has concluded that the persons, entities and bodies listed in Annex VIII to [Regulation No 961/2010] should continue to be subject to the specific restrictive measures provided for therein.’

35 Thus, Decision 2011/783 and Implementing Regulation No 1245/2011 constitute an explicit manifestation of the intention of the Council to maintain, following the periodic review provided for under Decision 2010/413 and by Regulation No 961/2010, the name of IRISL Multimodal Transport in the list in Annex II to Decision 2010/413 and in that in Annex VIII to Regulation No 961/2010 and therefore to maintain the restrictive measures against them. Consequently, IRISL Multimodal Transport must be held to be directly and individually concerned by Decision 2011/738 and by Implementing Regulation No 1245/2011, which means that IRISL Multimodal Transport is entitled to apply for their annulment (see, by analogy, judgment of 7 December 2010 in Fahas v Council, T‑49/07, ECR, EU:T:2010:499, paragraphs 33 to 36).

Admissibility of the amendments to the forms of order sought in Cases T‑420/11 and T‑56/12

36 According to the case-law, when a decision or a regulation laying down restrictive measures is replaced, during the proceedings, by another measure with the same subject-matter, this is to be considered a new factor allowing the applicant to adapt its claims and pleas in law (see judgment of 6 September 2013 in Bank Melli Iran v Council, T‑35/10 and T‑7/11, ECR, EU:T:2013:397, paragraph 53 and the case-law cited).

37 However, in order to be admissible, a request to amend the form of order sought must be submitted within the time-limit for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU. Where, as in the present case, the address of the person or entity concerned is known, that time-limit begins to run only from the date of the individual notification of the act maintaining the restrictive measures against that person or entity (see, to that effect, judgment in Bank Melli Iran v Council, paragraph 36 above, EU:T:2013:397, paragraphs 55 to 57).

38 In the present case, Regulation No 267/2012 was adopted on 23 March 2012 and the applicants amended the heads of claim seeking the annulment of that regulation on 30 April 2012, namely one month and 7 days later. Consequently, irrespective of the date of the individual notification of Regulation No 267/2012, it follows necessarily that the time-limit of two months laid down in the sixth paragraph of Article 263 TFEU, extended on account of distance by 10 days, laid down in Article 102(2) of the Rules of Procedure was complied with by the applicants.

39 Accordingly, the applicants are entitled to apply for the annulment of Regulation No 267/2012, in so far as that act concerns them.

Admissibility of the complaints based, in Cases T‑420/11 and T‑56/12, on the illegality of the restrictive measures against IRISL

40 The Council submits that the complaints based on the illegality of the restricted measures against IRISL, set out in the first plea in law of the application in Case T‑420/11 and in the second plea in law of the application in Case T‑56/12 are not sufficiently clear and precise to enable the Council to prepare its defence, and do not satisfy, consequently, the condition laid down in Article 44(1)(c) of the Rules of Procedure, which means that they must be declared inadmissible. The Council refers, in that regard, to paragraphs 54 to 58 of the judgment of 6 September 2013 in Good Luck Shipping v Council (T‑57/12, EU:T:2013:410) in which the Court reached a conclusion to that effect in respect of a complaint that was identical to the complaints at issue in the present case.

41 The Council submits that it is irrelevant, in that regard, that the IRISL judgment (EU:T:2013:453, paragraph 13 above) annulling the restrictive measures against IRISL had been given before the date of delivery of the present judgment. The Council refers, in that regard, to paragraphs 39 to 41 of the judgment of 20 March 2013 in Bank Saderat v Council (T‑495/10, EU:T:2013:142), in which the Court concluded analogously that a plea in law based on the illegality of restrictive measures against Bank Saderat Iran was inadmissible, even though the restrictive measures had been previously annulled by a judgment of 5 February 2013 in Bank Saderat Iran v Council, (T‑494/10, ECR, EU:T:2013:59).

42 Accordingly, the Council considers that it is not necessary to take account, in the actions in Cases T‑420/11 and T‑56/12, of the annulment of the restrictive measures against IRISL, decided by the IRISL judgment (EU:T:2013:453, paragraph 13 above).

44 First, it must be noted that the IRISL judgment (EU:T:2013:453, paragraph 13 above), inter alia, retroactively eliminated Decision 2010/413, Regulation No 961/2010 and Regulation No 267/2012, in so far as those acts concerned IRISL. That judgment has not been appealed and, consequently, both its operative part and grounds became final. Therefore, the IRISL judgment (EU:T:2013:453, paragraph 13 above), has authority erga omnes, which gives it the force of res judicata with absolute effect (see to that effect, judgment of 1 June 2006 in P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission, C‑442/03 P and C‑471/03 P, ECR, EU:C:2006:356, paragraphs 43, 44 and 47 and the case-law cited).

45 Accordingly, the Court cannot make a fresh ruling on the legality of restrictive measures against IRISL adopted or maintained by Decision 2010/413, Regulation No 961/2010 and Regulation No 267/2012 (see, to that effect, P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission, paragraph 44 above, EU:C:2006:356, paragraph 50).

46 Therefore, to the extent that Decision 2010/413, Regulation No 961/2010 and Regulation No 267/2012 are concerned, the Court cannot examine the complaints of the illegality of the restrictive measures against IRISL, submitted as part of the first plea in law in the application in Case T‑420/11 and the second plea in law in the application in Case T‑56/12, irrespective of whether those complaints comply with the condition laid down by Article 44(1)(c) of the Rules of Procedure.

47 Second, in Case T‑56/12, the fact that the IRISL judgment (EU:T:2013:453, paragraph 13 above) has the force of res judicata does not affect Decision 2011/783 and Implementing Regulation No 1245/2011, which were not annulled by that judgment, failing the amendment of the forms of order sought by IRISL in the case giving rise to that judgment, even though those measures explicitly maintained the restrictive measures against IRISL. Furthermore, as the Council has submitted, although the applicants in Case T‑56/12 rely on the illegality of the restrictive measures against IRISL laid down by Decision 2011/783 and by the Implementing Regulation No 1245/2011, their complaint is framed in the same way as the complaint that was held to be inadmissible, under Article 44(1)(c) of the Rules of Procedure, by the judgment in Good Luck Shipping v Council, paragraph 40 above (EU:T:2013:410).

48 That said, third, neither the fact that it was impossible for the Court to examine the complaints based on the illegality of restrictive measures against IRISL adopted or maintained by Decision 2010/413, Regulation No 961/2010 and Regulation No 267/2012, nor the possible inadmissibility of the complaint based, in Case T‑56/12, on the illegality of the same measure laid down in Decision 2011/783 and Implementing Regulation No 1245/2011, mean that the Court cannot take the IRISL judgment (EU:T:2013:453, paragraph 13 above) into consideration in Cases T‑420/11 and T‑56/12.

49 The definitive annulment, with retroactive effect, of the restrictive measures against IRISL, decided by the IRISL judgment (EU:T:2013:453, paragraph 13 above), is a matter that arose during the course of the procedure and which therefore justifies the introduction of new pleas in law within the meaning of Article 48(2) of the Rules of Procedure.

50 In that regard, in their responses of 13 February 2014 to the question posed by the Court on 16 January 2014, the applicants expressly submitted that, according to the IRISL judgment (EU:T:2013:453, paragraph 13 above), the removal of the entry for IRISL in the list of entities subject to restrictive measures implied the annulment of those measures against the entities alleged to be linked with IRISL. The applicants concluded on that basis that the restrictive measures against them, adopted or maintained by Decision 2011/299, Decision 2011/783, Implementing Regulation No 503/2011, Implementing Regulation No 1245/2011 and Regulation No 267/2012 (taken together ‘the contested measures’), must also be annulled.

51 Consequently, in their responses of 13 February 2014 to the question posed by the Court on 16 January 2014, the applicants’ reliance on a complaint based on the consequences of the annulment of the restrictive measures against IRISL on the legality of the contested measures laying down restrictive measures against the applicants themselves was valid.

52 That finding is not called into question by the judgment in Bank Saderat v Council, paragraph 41 above (T‑495/10, EU:T:2013:142), relied on by the Council. By contrast with the present case, at the date of delivery of that judgment, the annulment of the restrictive measures against Bank Saderat Iran had not become final, as the judgment in Bank Saderat v Council had been appealed.

53 Accordingly, it must be held that, contrary to the Council’s submissions, the applicants are entitled to rely, in the present actions, on the consequences of the annulment of the restrictive measures against IRISL, decided by the IRISL judgment (EU:T:2013:453, paragraph 13 above), to challenge the legality of the contested measures laying down restrictive measures against the applicants themselves.

54 The Court considers that it is appropriate to examine, first, the complaint raised, in both cases, in the applicant’s responses of 13 February 2014 to the question posed by the Court on 16 January 2014 and to draw the appropriate conclusions from the annulment of the restrictive measures against IRISL decided by the IRISL judgment (EU:T:2013:453, paragraph 13 above).

55 In that regard, the applicants recall that they were made subject to the restrictive measures laid down by Decision 2010/413, Regulation No 961/2010 and Regulation No 267/2012 because they were considered to be owned or controlled by IRISL. However, given that the restrictive measures against IRISL, laid down by those acts, have been annulled by the IRISL judgment (EU:T:2013:453, paragraph 13 above), the applicants consider that the restrictive measures against them must also be annulled.

56 The Council contests the merits of the applicants’ arguments. The Council submits, in particular, that following the adoption of Decision 2013/685 and of Council Implementing Regulation No 1203/2013, IRISL continued to be subject to the restrictive measures laid down by Decision 2010/413 and Regulation No 267/2012.

57 In that regard, it is common ground between the parties that the restrictive measures against the applicants, adopted or maintained by Decision 2011/299, Decision 2011/783, Implementing Regulation No 503/2011, Implementing Regulation No 1245/2011 and Regulation No 267/2012, are based on the fact that the applicants were considered to be owned or controlled by IRISL. IRISL had itself been made subject to the same restrictive measures, the Council having concluded that IRISL had provided support for nuclear proliferation.

58 The criterion for the adoption of restrictive measures against entities owned or controlled by IRISL was laid down in Article 20(1)(b) of Decision 2010/413 as regards Decision 2011/299 and Decision 2011/783, in Article 16(2)(d) of Regulation No 961/2010 as regards Implementing Regulation No 503/2011 and Implementing Regulation No 1245/2011, and in Article 23(2)(e) of Regulation No 267/2012.

59 In that context, it should be noted that when the funds of an entity identified as providing support for nuclear proliferation are frozen, there is a not insignificant danger that that entity may exert pressure on the entities it owns or controls or which act on its behalf, in order to circumvent the effect of the measures applying to it. That being so, the freezing of the funds of entities owned or controlled by an entity identified as being engaged in nuclear proliferation is necessary and appropriate in order to ensure the effectiveness of the measures adopted vis-à-vis that entity and to ensure that those measures are not circumvented (the IRISL judgment, EU:T:2013:453, paragraph 13 above, paragraph 75).

60 Thus, the restrictive measures against the entities owned or controlled by another entity, such as the applicants, are only justified if the entity which owns or controls them, in this case IRISL, was validly identified as providing support for nuclear proliferation.

61 However, as is apparent from paragraphs 44 to 68 of the IRISL judgment (EU:T:2013:453, paragraph 13 above) the Council did not establish before the Court that IRISL had provided support for nuclear proliferation. For that reason, by that judgment, the Court annulled the restrictive measures against IRISL laid down by Decision 2010/413, Regulation No 961/2010 and Regulation No 267/2012.

62 Accordingly, even if the applicants were actually owned or controlled by IRISL, the adoption of and the maintenance of restrictive measures against them by Decision 2011/299, Implementing Regulation No 503/2011 and Regulation No 267/2012 are not justified, given that IRISL was not validly identified as having provided support for nuclear proliferation at the time of the adoption of the those acts (see, to that effect, the IRISL judgment, EU:T:2013:453, paragraph 13 above, paragraph 75).

63 As regards, in Case T‑56/12, Decision 2011/783 and Implementing Regulation 1245/2011, it has already been held at paragraph 47 above that those acts had not been annulled by the IRISL judgment (EU:T:2013:453, paragraph 13 above), even though they had expressly maintained the restrictive measures against IRISL.

64 Nevertheless, it must be noted that, rather than make a new entry for IRISL, Decision 2011/783 and Implementing Regulation No 1245/2011 maintained the entry effected by Decision 2010/413 and by Regulation No 961/2010. The maintenance of that entry was based on exactly the same factual circumstances as those found in the course of the adoption of Decision 2010/413 and of Regulation No 961/2010 and examined by the Court in the IRISL judgment (EU:T:2013:453, paragraph 13 above).

65 Consequently, the finding that the reasons given by the Council did not justify the adoption and maintenance of restrictive measures against IRISL, made in the IRISL judgment (EU:T:2013:453, paragraph 13 above) in relation to Decision 2010/413 and to Regulation No 961/2010, can be applied by analogy to Decision 2011/783 and to Implementing Regulation No 1245/2011.

66 That means that, even if Decision 2011/783 and Implementing Regulation No 1245/2011 were not annulled or withdrawn as regards the restrictive measures against IRISL, that cannot have as a consequence that the maintenance of the restrictive measures against IRISL, effected by Decision 2011/783 and by Implementing Regulation No 1245/2011, must be considered to be justified when examining the complaints made by the applicants in Case T‑56/12.

67 Given that it must be held, in Case T‑56/12, that IRISL had not been validly identified as providing support for nuclear proliferation at the time of the adoption of Decision 2011/783 and Implementing Regulation No 1245/2011, it must be concluded that the applicants, even if they were in fact owned or controlled by IRISL, have not properly been entered into Decision 2011/783 and Implementing Regulation No 1245/2011.

68 Consequently, it must be held that, so far as the adoption and maintenance of restrictive measures against the applicants in Cases T‑420/11 and T‑56/12 are concerned, all of the contested measures are vitiated by the fact that, at the time of their adoption, IRISL had not been validly identified as providing support for nuclear proliferation.

69 That conclusion is not called into question by the fresh entry of IRISL in the list of entities subject to restrictive measures listed in Annex II to Decision 2010/413 and in Annex IX to Regulation No 267/2012, effected by Decision 2013/685 and by Implementing Regulation No 1203/2013.

70 First, given that Decision 2013/685 and the Implementing Regulation No 1203/2013 post-date the adoption of the contested measures and do not have retroactive effect, their adoption cannot remedy the fact that IRISL had not been validly identified as providing support for nuclear proliferation at the time of the adoption of the contested measures.

71 That is particularly so since the fresh entry of IRISL is based on a criterion that was introduced in Decision 2010/413 and in Regulation No 267/2012, respectively, by Decision 2013/497 and Regulation No 971/2013 and which did not therefore exist at the time of the adoption of the contested measures.

72 Second, nothing in Decision 2013/685 or in Implementing Regulation 1203/2013 suggests that the Council intended by those acts to make new entries of the applicants’ names in the list of entities subject to restrictive measures that appears in Annex II to Decision 2010/413 and in Annex IX to Regulation No 267/2012, at the same time as the new entry for IRISL.

73 In view of all the foregoing, the complaint based on the consequences of the annulment of the restrictive measures against IRISL effected by the IRISL judgment (EU:T:2013:453, paragraph 13 above) must be upheld. Consequently, the contested measures are annulled in so far as they concern the applicants, without it being necessary to examine their other pleas in law.

74 As regards the temporal effects of the annulment of the contested measures, it must be noted, first, that Implementing Regulation No 503/2011 and the Implementing Regulation No 1245/2011, which amended the list in Annex VIII to Regulation No 961/2010, ceased to have legal effect after the repeal of Regulation No 961/2010 by Regulation No 267/2012. Consequently, the annulment of Implementing Regulation No 503/2011, and Implementing Regulation No 1245/2011 concerns only the effects that those acts produced between the date of their entry into force and the date of their repeal.

75 Next, as regards Regulation No 267/2012, it must be recalled that, under the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void are to take effect only as from the date of expiry of the period for bringing an appeal referred to in the first paragraph of Article 56 of that Statute or, if an appeal has been brought within that period, as from the date of dismissal of the appeal (judgment of 16 September 2011 in Kadio Morokro v Council, T‑316/11, EU:T:2011:484, paragraph 38).

76 Accordingly, the Council has a period of two months, extended on account of distance by 10 days, as from the notification of this judgment, to remedy the infringements established by adopting, if appropriate, new restrictive measures with respect to the applicants. In the present case, the risk of serious and irreparable harm to the effectiveness of the restrictive measures imposed by Regulation No 267/2012 does not appear sufficiently great, having regard to the considerable impact of those measures on the applicants’ rights and freedoms, to warrant the maintenance of the effects of that regulation with respect to the applicants for a period exceeding that laid down in the second paragraph of Article 60 of the Statute of the Court of Justice (see, to that effect, judgment in Kadio Morokro v Council, paragraph 75 above, EU:T:2011:484, paragraph 38).

77 Lastly, as regards the temporal effects of the annulment of Decision 2011/299 and Decision 2011/783, amending Decision 2010/413, it must be recalled that, under the second paragraph of Article 264 TFEU, the General Court may, if it considers it necessary, state which of the effects of the act which it has declared void are to be considered definitive. In the present case, if the dates when the annulment of, on the one hand, Regulation No 267/2012 and, on the other hand, of Decision 2011/299 and of Decision 2011/783, amending Decision 2010/413, is to take effect were to differ, that would be likely seriously to jeopardise legal certainty, since those two acts impose on the applicant measures which are identical. The effects of Decision 2010/413, as amended by Decision 2011/299 and by Decision 2011/783, must therefore be maintained as regards the applicant until the annulment of Regulation No 267/2012 takes effect (see, to that effect, judgment in Kadio Morokro v Council, paragraph 75 above, EU:T:2011:484, paragraph 39).

78 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs, as applied for by the applicants.

1. Annuls, in so far as they concern Ocean Capital Administration GmbH and the other applicants whose names appear in the annex to this judgment:

– Council Decision 2011/299/CFSP of 23 May 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran;

– Council Implementing Regulation (EU) No 503/2011 of 23 May 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran;

– Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010.

2. Annuls, in so far as they concern IRISL Maritime Training Institute, Kheibar Co., Kish Shipping Line Manning Co. and IRISL Multimodal Transport Co.:

– Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran;

– Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran;

3. The effects of Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, as amended by Decision 2011/299 and Decision 2011/783, are maintained as regards, on the one hand, Ocean Capital Administration and the other applicants whose names appear in the annex to this judgment and, on the other hand, IRISL Maritime Training Institute, Kheibar, Kish Shipping Line Manning and IRISL Multimodal Transport, until the annulment of Regulation No 267/2012 takes effect.

4. The Council of the European Union shall bear, in addition to its own costs, the costs incurred by Ocean Capital Administration and the 35 other applicants whose names appear in the annex to this judgment and by IRISL Maritime Training Institute, Kheibar, Kish Shipping Line Manning and IRISL Multimodal Transport.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Ocean Capital Administration and Others v Council (Judgment) [2015] EUECJ T-420/11 (22 January 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/T42011.html Cite as: [2015] EUECJ T-420/11, EU:T:2015:42, ECLI:EU:T:2015:42

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