This document is an excerpt from the EUR-Lex website
Document 62024CC0842
Opinion of Advocate General Szpunar delivered on 19 March 2026.###
Opinion of Advocate General Szpunar delivered on 19 March 2026.
Opinion of Advocate General Szpunar delivered on 19 March 2026.
ECLI identifier: ECLI:EU:C:2026:233
Provisional text
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 19 March 2026 (1)
Case C‑842/24
DNO Yemen AS
v
Petrolin Trading Limited,
Moe Oil & Gas Yemen Limited,
The Ministry of Oil and Minerals (of The Republic of Yemen),
Yemen Oil & Gas Corporation / The Yemen Company,
Dove Energy Limited, in liquidation
(Request for a preliminary ruling from the Cour de cassation (Court of Cassation, France))
( Reference for a preliminary ruling – Common Foreign and Security Policy – Restrictive measures in view of the situation in Yemen – Prohibition on making funds indirectly available to natural or legal persons, entities or bodies covered by the measures – Making funds available to public bodies not covered by the measures but subject to the influence of persons covered by the measures )
I. Introduction
1. In the current geopolitical climate, restrictive measures enacted by the European Union against natural or legal persons, entities or bodies occupy a central position in the common foreign and security policy (CFSP). Since they are usually implemented by a regulation adopted by the Council on the basis of Article 215 TFEU, such measures have direct effect within the legal systems of the Member States and are binding on all their bodies, including their national courts. That is the case, in particular, for Regulation (EU) No 1352/2014, (2) with which the present case is concerned.
2. The prohibition on making funds or economic resources available, directly or indirectly, to certain persons, entities or bodies, laid down in Article 2(2) of Regulation No 1352/2014, is a typical restrictive measure. That prohibition can affect contractual obligations, including ones that have been the subject of an arbitration award, and such is the background to the present case.
3. In the context of an appeal brought against an arbitration award, on the ground that the implementation of that award would constitute a making available of funds prohibited by Article 2(2) of Regulation No 1352/2014, the Cour de cassation (Court of Cassation, France), the referring court, has put three questions to the Court of Justice for a preliminary ruling concerning, in essence, first of all, the precise scope of that prohibition, secondly, the standard of proof that must be met in order for that prohibition to apply and, thirdly, the allocation of the burden of proof.
II. Legal framework
A. International law
4. On 26 February 2014, at its 7119th meeting, the United Nations Security Council adopted Resolution 2140 (2014). Under the terms of that resolution:
‘The Security Council,
…
Reaffirming its strong commitment to the unity, sovereignty, independence and territorial integrity of Yemen,
…
Expressing concern at the ongoing political, security, economic and humanitarian challenges in Yemen, including the ongoing violence,
…
Determining that the situation in Yemen constitutes a threat to international peace and security in the region,
Acting under Chapter VII of the Charter of the United Nations, [(3)]
…
11. Decides that all Member States shall, for an initial period of one year from the date of the adoption of this resolution, freeze without delay all funds, other financial assets and economic resources which are on their territories, which are owned or controlled, directly or indirectly, by the individuals or entities designated … or by individuals or entities acting on their behalf or at their direction, or by entities owned or controlled by them, and decides further that all Member States shall ensure that any funds, financial assets or economic resources are prevented from being made available by their nationals or by any individuals or entities within their territories, to or for the benefit of the individuals or entities designated …;
…’
B. European Union law
1. Regulation No 1352/2014
5. Article 2 of Regulation No 1352/2014 (4) provides:
‘1. All funds and economic resources belonging to, owned, held or controlled by any natural or legal person, entity or body as listed in Annex I to this regulation shall be frozen.
2. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in Annex I.’ (5)
6. Article 3(1) of this regulation provides:
‘Annex I shall include natural or legal persons, entities and bodies identified by the Sanctions Committee [of the United Nations Security Council] (6) as engaging in or providing support for acts that threaten the peace, security or stability of Yemen …’
7. Article 11 of the regulation provides:
‘1. The freezing of funds and economic resources or the refusal to make funds or economic resources available, done in good faith on the basis that such action is in accordance with this regulation, shall not give rise to liability of any kind on the part of the natural or legal person or entity or body carrying out such an action, or its directors or employees, unless it is proven that the funds and economic resources were frozen or withheld as a result of negligence.
2. Actions by natural or legal persons, entities or bodies shall not give rise to any liability of any kind on their part if they did not know, and had no reasonable cause to suspect, that their actions would infringe the prohibitions set out in this regulation.’
8. The list set out in Annex I to that regulation corresponds to that set out in the annex to Decision 2014/932. In the versions that apply ratione temporis to the dispute in the main proceedings, six individuals within or associated with the Houthi movement appeared on those lists. Subsequently, the names of other individuals were added to the lists, (7) as well as the Houthis as a whole. (8)
2. The Guidelines on restrictive measures
9. Paragraph 55b of the Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common Foreign and Security Policy (9) (‘the Guidelines on restrictive measures’) (10) provides:
‘The criteria to be taken into account when assessing whether a legal person or entity is controlled by another person or entity, alone or pursuant to an agreement with another shareholder or other third party, could include, inter alia …:
…
(d) having the right to exercise a dominant influence over a legal person or entity, pursuant to an agreement entered into with that legal person or entity, or to a provision in its Memorandum [and] Articles of Association, where the law governing that legal person or entity permits its being subject to such agreement or provision;
(e) having the power to exercise the right to exercise a dominant influence referred to in point (d), without being the holder of that right …;
(f) having the right to use all or part of the assets of a legal person or entity;
…
If any of these criteria are satisfied, it is considered that the legal person or entity is controlled by another person or entity, unless the contrary can be established on a case-by-case basis.’
10. Paragraph 55d of the Guidelines states the following:
‘If the ownership or control is established in accordance with the above criteria, the making available of funds or economic resources to non-listed legal persons or entities which are owned or controlled by a listed person or entity will in principle be considered as making them indirectly available to the latter, unless it can be reasonably determined, on a case-by-case basis using a risk-based approach, taking into account all of the relevant circumstances, including the criteria below, that the funds or economic resources concerned will not be used by or be for the benefit of that listed person or entity.
The criteria to be taken into account include, inter alia:
(a) the date and nature of the contractual links between the entities concerned (for instance sales, purchase, or distribution contracts);
(b) the relevance of the sector of activity of the non-listed entity for the listed entity;
(c) the characteristics of the funds or economic resources made available, including their potential practical use by, and ease of transfer to, the listed entity;
…’
11. Paragraph 55e of the Guidelines states:
‘It is to be noted that the indirect making available of funds or economic resources to listed persons or entities may also include the making available of these items to persons or entities which are not owned or controlled by listed entities.’
C. French law
12. In accordance with Article 1518 of the Code de procédure civile (French Code of Civil Procedure), ‘an international arbitration award delivered in France may be challenged only by way of an action for annulment.’
13. Pursuant to Article 1520(5) of the Code of Civil Procedure, ‘an action for annulment is available only in the following cases: … where the recognition or enforcement of the award is contrary to international public policy.’
14. According to the case-law of the referring court, it is for the court hearing the action for annulment to determine, specifically, whether the incorporation of an arbitration award into the French legal system clearly infringes international public policy. (11)
15. In accordance with Article 1527(2) of the Code of Civil Procedure, ‘the dismissal of … the action for annulment confers leave to enforce the arbitration award or those of its provisions which are not declared unlawful by the court.’
III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
16. The Ministry of Oil and Minerals of the Republic of Yemen (‘the Ministry’) and Yemen Oil and Gas Corporation (‘YOGC’), a company wholly owned by the State of Yemen, entered into oil and natural gas exploitation and production-sharing agreements, which included an arbitration clause, with DNO Yemen AS (‘DNO’), Petrolin Trading (‘Petrolin’), MOE Oil & Gas Yemen (‘MOE’) and Dove Energy.
17. In the course of 2014, DNO, Petrolin, MOE and Dove Energy expressed their intention to withdraw from those agreements. In 2015, the Ministry and YOGC initiated arbitration proceedings under the aegis of the International Chamber of Commerce. In an arbitration award made in Paris (France) on 15 July 2019, DNO, Petrolin and MOE were ordered to pay the Ministry and YOGC damages (‘the arbitration award’).
18. DNO, Petrolin and MOE brought an action before the Cour d’appel de Paris (Court of Appeal, Paris, France) arguing, in particular, that the arbitration award was contrary to international public policy in that its enforcement could cause funds to be made indirectly available to natural or legal persons, entities or bodies listed in Annex I to Regulation No 1352/2014 (‘designated persons’), within the meaning of Article 2(2) of that regulation.
19. In 2014, the conflict in Yemen between the government recognised by the international community (‘the legitimate government’) and the Houthi rebels intensified following the Houthi seizure of Sana’a, the country’s capital. In 2015, an international coalition intervened in support of the legitimate government, the temporary seat of which is in Aden (Yemen). The conflict and the resulting schism in the Yemeni economy and in Yemeni society led to the creation of parallel governance structures. The Houthi movement uses the existing institutional infrastructures in Sana’a, (12) while the legitimate government relies on the development of new institutional capacities. (13)
20. By judgment of 5 October 2021, the Cour d’appel de Paris (Court of Appeal, Paris) dismissed the action brought by DNO, Petrolin and MOE on the ground that the verification that it was required to carry out for the purposes of Article 2(2) of Regulation No 1352/2014 had to be carried out in the light of the situation as assessed at the time of the court’s ruling and had to be based on serious, specific and consistent evidence to support a finding of a breach of the sanctions regime.
21. It took the view that, in order to show an indirect making available of funds, it was necessary to establish that the Ministry and YOGC were in fact acting ‘on behalf of, under the control of or on the instructions of’ designated persons and that they intended to use the funds for the benefit of those persons. In reaching that view, it took account of the criteria set out in paragraph 55b of the Guidelines on restrictive measures.
22. The Cour d’appel de Paris (Court of Appeal, Paris ) held, first, that none of the evidence adduced was capable of confirming that the Ministry, a representative of the legitimate government, which is recognised by the international community and enjoys the support of the World Bank and the International Monetary Fund (IMF), was acting under the control of, or on the instructions of designated persons, since the armed conflict in Yemen was principally between the legitimate government and the Houthi movement.
23. Secondly, the court found that, although the evidence put before it indicated that control over YOGC was claimed both by the legitimate government and by the Houthi movement – a situation characterised in the case in the main proceedings as one of ‘competing influences’ – it had in no way been established that the two sides were acting in concert or that YOGC was under the control of the Houthis. In that regard, it relied on a letter of 23 August 2015 sent by the then Prime Minister of the legitimate government to the foreign oil companies requesting them to deal only with individuals invested with government authority and telling them that all the decisions, appointments and directives of the Houthi militia made in the month of February 2015 and addressed to the Ministry and the authorities and bodies associated with the Ministry must be considered null and void and should not be given effect and, lastly, that foreign operators should not pay any sums due to the State until they were informed of where and when to make the payment.
24. It also found that the facts, first of all, that YOGC’s official website, which could have been hacked, mentioned the name of a Houthi minister and, secondly, that the Yemeni news agency Saba had reported a meeting held in the presence of the then Houthi Prime Minister, during which YOGC’s Executive Director had given a brief presentation on, inter alia, the programme for the rationing of oil, diesel and domestic gas drawn up by the secretariat of the capital and governorates under Houthi control, were not sufficient to demonstrate that control over YOGC had been taken.
25. Finally, it noted that the absence of a link to YOGC’s website from the official website of the legitimate government (at www.mom-ye.com), and the fact that YOGC’s website used the former governmental domain name (www.mom-gov.ye), which had also been used by the Houthis since they took over the former governmental website, did not call into question the fact that control over YOGC was also claimed by the legitimate government.
26. In March 2022, the Republic of Yemen, represented by the Ministry, lodged an application for enforcement of the arbitration award before the Oslo tingrett (Oslo District Court, Norway), which, ruling the award enforceable, ordered DNO to pay the damages due. That decision became final on 4 November 2023.
27. On 4 December 2023, DNO paid the Ministry the net amount due under the arbitration award. By letter of 13 December 2022, YOGC confirmed, at DNO’s request, that it had assigned all its rights under the arbitration award to the Ministry and stated that it had no intention of claiming the sums already paid to the Ministry.
28. DNO and Petrolin respectively brought an appeal and a cross-appeal against the judgment of the Cour d’appel de Paris (Court of Appeal, Paris) before the referring court. In support of those appeals, which are based on a clear breach of international public policy, those companies argue, in essence, that the appellate court erred, first, in confining itself to examining whether or not YOGC was owned or controlled by designated persons and, secondly, by failing to check whether the enforcement of the arbitration award in question would cause, or might cause funds to be made available to designated persons.
29. In that regard, in the first place, the referring court recalls the case-law of the Court of Justice according to which the expression ‘made available’ has a broad meaning, (14) and points out that restrictive measures are intended to be preventive. (15)
30. In the second place, the referring court emphasises that the central issue raised in the present case concerns the criteria for establishing whether funds are made indirectly available for the benefit of designated persons as a result of the payment, resulting from the enforcement of an arbitration award, (16) of sums due to the Ministry and to YOGC, which are not designated entities. In addition, it observes that the factual situation raises questions regarding the burden of proof, given the uncertain political situation in Yemen.
31. It was in those circumstances that the Cour de cassation (Court of Cassation, France) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must Article 2(2) of [Regulation No 1352/2014] be interpreted, in the light of the Guidelines [on restrictive measures], as meaning that the indirect making available [of funds or economic resources] may include making funds available to public entities not targeted by the restrictive measures, if it is established that the persons targeted by those measures exercise, within those entities, an influence which competes with that of the legitimate government, which is not targeted by those measures?
(2) Where the existence of such a competing influence is established, is Article 2(2) of [Regulation No 1352/2014] to be interpreted as meaning that the entities to which the funds are made available are presumed to be controlled by the persons targeted by the restrictive measures? If the answer is in the affirmative, does that presumption allow for contrary evidence to be adduced? In that regard, is the fact that the legitimate government, which is not targeted by the restrictive measures, does not cooperate with the persons targeted by those measures relevant?
(3) Where the evidence adduced before the national court does not make it possible to assess whether it is the legitimate government or the persons targeted by the sanctions that have decisive influence within the entity to which the funds are made available, does the mere reasonable risk that targeted persons may ultimately benefit from all or part of those funds provide a sufficient basis for applying the sanctions?’
32. Written observations have been submitted by DNO, the Ministry, the French, Italian and Netherlands Governments and the European Commission. The same parties, with the exception of the Italian and Netherlands Governments, attended the hearing on 19 November 2025.
IV. Analysis
A. The first question referred for a preliminary ruling
1. Preliminary remarks
33. By its first question, the referring court asks, in essence, whether Article 2(2) of Regulation No 1352/2014 is to be interpreted as covering the payment of funds, by reason of the enforcement of an arbitration award, to a non-designated public entity, if it is established that competing influences are exercised over that entity by designated persons and by a non-designated entity.
34. I would immediately point out that this question does not expressly concern the concept of ‘control’ as that term is understood in the context of restrictive measures. Nevertheless, it is clear from the grounds of the order for reference that the questions from the referring court arise from the judgment of the Cour d’appel de Paris (Court of Appeal, Paris). That court held, on the basis of paragraphs 55b and 55d of the Guidelines on restrictive measures, which relate to the concept of ‘control’, that a competing interest (17) did not fall within the scope of Article 2(2) of Regulation No 1352/2014, the relevant criterion under that provision being, essentially, the existence of control by designated persons over the recipient of the funds. Moreover, in its first question, the referring court expressly refers to the Guidelines on restrictive measures.
35. In my analysis of this question, I shall therefore commence with a brief review of the case-law on the broad interpretation of the concept of ‘making available, directly or indirectly’. I shall then clarify, with reference to that concept, the relevance of the existence, or absence, of control. Lastly, I shall demonstrate that, even in the absence of control, the existence of competing interests may suffice to establish that funds have been made available indirectly, within the meaning of Article 2(2) of Regulation No 1352/2014.
2. The making available of funds, directly or indirectly: a broad meaning
36. It is clear from the judgment in Möllendorf that the use of the words ‘directly or indirectly’ is evidence that the prohibition on the making available of funds is framed in particularly broad terms. Equally, and as the referring court has noted, the expression ‘making available’ has a broad meaning and, rather than denoting a specific legal category of act, it encompasses all the acts necessary under the applicable national law if a person is effectively to obtain full power of disposal in relation to the assets concerned. (18)
37. In the case which gave rise to the judgment in Afrasiabi and Others, the Court specifically considered the concept of ‘indirectly making available’ in the context of the supply and installation of an economic resource to a non-designated entity that was managed by a non-designated person who had nevertheless acted for the benefit of a designated entity. (19)
38. In that context, the Court first of all held (20) that the fact of acting on behalf of, under the control of or on the instructions of a designated person was a factor that justified the inclusion on a list of persons subject to restrictive measures. (21) The Court went on to clarify that that factor was also relevant to the assessment of the prohibition on indirectly making funds available. (22) Lastly, the Court held that having the intention to use the asset in question for the benefit of a designated person was also relevant. (23)
39. It is apparent from the order for reference that the Cour d’appel de Paris (Court of Appeal, Paris) relied on those same factors. (24) It therefore held, after finding those factors absent, that the prohibition laid down in Article 2(2) of Regulation No 1352/2014 could not apply in this case.
40. Nevertheless, the factors mentioned in the judgment in Afrasiabi and Others cannot, in my view, constitute an exhaustive list of the circumstances which permit a finding of an indirect making available of funds. As the Court expressly stated, they are relevant factors. Any other interpretation would run counter to the broad meaning of the concept of ‘making available of funds’.
41. That broad meaning must be put in the context of the necessity of attaining the objectives pursued by Regulation No 1352/2014, of ensuring the effectiveness of the restrictive measures which it lays down, and of averting any risk of circumvention. (25)
42. In that regard, it is clear from the preamble to Resolution 2140(2014), as well as from recital 5 of Regulation No 1352/2014, that the restrictive measures in question in the present case are aimed at countering the specific threat to international peace and security in the region posed by the situation in Yemen. In accordance with Article 3 of that regulation, Annex I thereto includes natural or legal persons, entities and bodies identified by the Sanctions Committee as engaging in or providing support for acts that threaten the peace, security or stability of Yemen. As is true in general of restrictive measures adopted by the European Union, the measures in question are intended to be preventive, in that they seek to prevent this type of act. (26)
43. Therefore, the prohibition on the making available of funds aims to prevent funds from being used to engage in or provide support for acts that threaten the peace, security or stability of Yemen. (27) To interpret that prohibition as being confined exclusively to situations in which there is actual holding or control would run counter to that objective. Other situations may also be caught by that prohibition.
44. More recent case-law seems to confirm that approach. In the first place, in its judgment in SH, the Court clarified that, in order for funds to be regarded as being made indirectly available to a designated person, it must be possible for those funds to be passed on to that person or for that person to have the ability to dispose of them, in the light, inter alia, of the existence of financial or legal links between the beneficiary of the funds and such a person. (28)
45. In the second place, in its judgment in E and F, the Court held that the broad meaning of ‘making available’ is independent of the existence or absence of a relationship between the perpetrator of the act of ‘making available’ and the beneficiary. (29) Admittedly, in the case that gave rise to that judgment, the referring court was asking whether the prohibition on making funds available applied to the transfer of funds to a designated entity by a non-designated member of that entity. (30) That said, I consider that this finding of principle reached by the Court, which accords with the broad interpretation of the prohibition, must extend to the absence of any formal relationship between the perpetrator of the act of making available and the beneficiary thereof.
3. The relevance of the existence of control
46. It is clear that, from among the criteria, set out by the Court in the judgment in Afrasiabi and Others, for determining whether there is an indirect making available of funds, the Cour d’appel de Paris (Court of Appeal, Paris) placed particular reliance on control exercised over the recipient of the funds by designated persons, having regard to paragraphs 55b and 55d of the Guidelines on restrictive measures. It is therefore necessary to clarify the relevance of that criterion.
47. Under the terms of paragraph 55d of these guidelines, if control is established in accordance with the criteria mentioned in paragraph 55b of the guidelines, making funds available to non-designated persons which are owned or controlled by a designated person is, in principle, to be considered as making those funds indirectly available to the designated person.
48. Nevertheless, even though these guidelines have no binding legal effect, (31) I consider that account must also be taken of paragraph 55e thereof, which, as DNO has pointed out, was not mentioned by the Cour d’appel de Paris (Court of Appeal, Paris).
49. According to that paragraph, the prohibition on making funds indirectly available to designated persons applies even in the absence of any relationship of ownership or control between those designated persons and the recipient of the funds. (32)
50. Thus, essentially, the existence of control permits the presumption that there is an indirect making available of funds. In the absence of control, that question must be assessed on a case-by-case basis.
51. In my view, such an interpretation is consistent with the judgment in Afrasiabi and Others, as interpreted in point 40 of this Opinion, and with the later case-law mentioned in points 44 and 45 of this Opinion.
52. Consequently, a national court cannot conclude that the prohibition laid down in Article 2(2) of Regulation No 1352/2014 does not apply for the simple reason that the direct recipient of the funds is not controlled by designated persons, within the meaning of paragraph 55b of the Guidelines on restrictive measures. It must, by contrast, examine whether the funds may be passed on to such persons or whether such persons have the ability to dispose of them. (33) That examination will be dependent on the evidence that is available to the national court, such as that mentioned in points 19 and 23 to 25 of this Opinion.
4. Competing influences
53. In view of the foregoing considerations, it should be considered that the prohibition laid down in Article 2(2) of Regulation No 1352/2014 can extend to the payment of funds to a non-designated entity where it is established that designated persons exercise over that entity an influence which competes with that of another non-designated entity. As the Italian and Netherlands Governments and the Commission have argued, this prohibition must apply to all factual situations that enable designated persons to access the funds in question.
54. The judgment in Petropars Iran and Others v Council, (34) to which the French Government has referred, cannot call that conclusion into question. The case which gave rise to that judgment concerned the joint ownership of the share capital of an undertaking by both a designated entity and a non-designated entity. In that context, the General Court concluded that it was not in the interests of the non-designated shareholders to assist the designated shareholder in exerting pressure on their common subsidiary in order to circumvent the effect of the restrictive measures directed solely at that designated shareholder. The General Court also emphasised that, in such a situation, the fact that there was joint control was liable to prevent the designated entity from exerting pressure on its subsidiary for the purpose of circumventing the effect of the restrictive measures applied to it. (35)
55. In the present case there is no question of joint ownership of the share capital of YOGC, but rather one of a de facto influence claimed by both the Houthi movement and the legitimate government in the context of a civil war. On account of those competing influences over YOGC, it cannot therefore be ruled out, in my view, that funds might be passed on to the Houthis or that the Houthis might have the ability to dispose of them, within the meaning of the judgment in SH, (36) which is a matter for the referring court to verify.
56. I therefore propose that the answer to the first question referred for a preliminary ruling should be that Article 2(2) of Regulation No 1352/2014 is to be interpreted as meaning that the payment of funds, by reason of the enforcement of an arbitration award, to an entity over which designated persons and a non-designated entity exercise competing influences may fall within the scope of that provision where those funds may be passed on to those persons or where those persons have the ability to dispose of them.
B. The third question referred for a preliminary ruling
57. By its third question, which it is appropriate to examine before the second, the referring court asks, in essence, whether Article 2(2) of Regulation No 1352/2014 must be interpreted as meaning that a reasonable risk that designated persons will benefit from all or part of the funds paid to a non-designated entity, by reason of the enforcement of an arbitration award, triggers the application of the prohibition laid down in that provision.
58. It should be borne in mind that this question was raised in the context of the annulment of an arbitration award under which DNO, Petrolin and MOE were ordered to pay funds to the Ministry and to YOGC. Furthermore, the question of whether that payment would be contrary to Regulation No 1352/2014 or Resolution 2140(2014) was not considered in that award. It therefore falls to the referring court not to examine whether DNO, Petrolin and MOE should have withheld the funds, but to determine whether, in light of the evidence before it, the arbitration award should be annulled on the ground that its enforcement is contrary to public international policy. It is therefore from the perspective of the national court hearing an action for annulment that it is necessary to determine what standard of proof must be reached if it is to be found that the prohibition on making funds available, within the meaning of Article 2(2) of the regulation, applies.
59. The standard of proof may vary depending on the context in which that assessment is made. I therefore think it useful to distinguish between the standard of proof required in an action for annulment of an arbitration award, as in the present case, the standard of proof required of an economic operator when evaluating whether there is a risk that a transaction will infringe Article 2(2) of Regulation No 1352/2014, and the standard of proof required of the Council when imposing restrictive measures.
1. The degree of certainty required if an economic operator is to withhold funds in pursuance of Article 2(2) of Regulation No 1352/2014
60. As is clear from Article 18 of Regulation No 1352/2014, the territorial and personal scope of that regulation is quite broad. It applies within the territory of the European Union to any natural or legal person, entity or body in respect of any business done in whole or in part within the European Union. (37)
61. Economic operators falling within the regulation’s scope are therefore required to ensure that the performance of a contractual obligation is not prohibited by Article 2(2) of Regulation No 1352/2014. (38)
62. In this context, Article 11 of Regulation No 1352/2014 must be taken into account. Article 11(1) provides that a refusal to make funds available must be decided upon ‘in good faith’ on the basis that such an action is in accordance with the regulation. In addition, if paragraphs 1 and 2 of Article 11 are read in conjunction, it is clear that, when making the assessment required of them under the regulation, economic operators must exercise a degree of diligence. (39) On the one hand, they are relieved of liability for withholding funds ‘unless it is proven that the funds … were … withheld as a result of negligence’. On the other hand, making funds available, even if prohibited by the regulation, does not give rise to any liability if the economic operators did not know and had no reasonable cause to suspect that that was the case. (40)
63. I take the view that it follows from Article 11 of Regulation No 1352/2014 that the degree of certainty required of an economic operator if it is to withhold funds, in pursuance of Article 2(2) of that regulation, is quite low. A belief, arrived at in good faith and without negligence, that withholding funds is in compliance with that provision is sufficient. Moreover, it seems to me that that provision accords well with a ‘risk-based approach’, (41) which, in the event of uncertainty, favours the withholding of funds.
2. The standard of proof required of the Council when adopting a listing decision
64. The adoption of restrictive measures against natural or legal persons, entities or bodies is a CFSP matter and requires, first, a Council decision defining the European Union’s approach with regard to those measures (Article 29 TEU) and, secondly, a Council act adopted on the basis of Article 215 TFEU. (42) Within that framework, the Council generally adopts regulations which, as appropriate, provide for the freezing of the assets of persons meeting certain criteria linked to the objectives which the measures in question seek to attain, as well as a prohibition on providing those persons, directly or indirectly, with funds or economic resources. (43)
65. In accordance with the second paragraph of Article 275 TFEU, persons targeted by restrictive measures may bring an action before the Court of Justice of the European Union, in accordance with the conditions laid down in the fourth paragraph of Article 263 TFEU.
66. The Court has repeatedly held that, as part of the review of the lawfulness of the reasons which are the basis of the Council’s decision to include a person’s name on a list of persons subject to restrictive measures (the ‘listing decision’), the Courts of the European Union are to ensure that that decision, which affects the person concerned individually, is taken on a sufficiently solid factual basis. 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, are substantiated. (44)
67. Such an appraisal must be carried out by examining the evidence not in isolation but in the context in which it fits, and the Council discharges the burden of proof borne by it if it presents to the Courts of the European Union a sufficiently specific, precise and consistent body of evidence to support the conclusion that the person concerned fulfils at least one of the criteria for designation chosen by the Council. Furthermore, it is the Council’s task to establish that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded. (45)
68. The Commission has argued in its written observations that those same requirements apply ‘in similar fashion’ before a national court where a person refuses to give effect to an arbitration award, alleging that to do so would constitute an indirect making available of funds prohibited by Regulation No 1352/2014. For reasons which I shall now explain, I do not entirely share that view.
3. The standard of proof required in an action for annulment of an arbitration award before a national court
(a) A lower threshold than that required of the Council
69. In the first place, by contrast with a listing decision, the annulment of an arbitration award ordering the payment of funds that might be indirectly made available to designated persons is not a measure that affects the persons concerned individually. (46) Nor does it arouse the public opprobrium and suspicion that a listing decision excites. (47) It is not a question of including the Ministry or YOGC on the list in Annex I to Regulation No 1352/2014. The Council alone has the power to do that.
70. In the second place, under Article 296 TFEU, the Council is under an obligation to state the reasons for such decisions and must observe the principle of sound administration, in accordance with Article 41 of the Charter of Fundamental Rights of the European Union. (48) Those provisions do not bind private parties that, in the context of an action for annulment, argue that the making available of funds is prohibited by Regulation No 1352/2014.
71. In the third place, the tools at the disposal of an economic operator are not comparable to those available to the Council, on which specific powers have been conferred in this field.
(b) A higher threshold than that required in the absence of legal proceedings
72. That said, I also consider that, in the context of an action for annulment of an arbitration award, such as in the present case, the quite low degree of certainty required by Article 11 of Regulation No 1352/2014 does not apply.
73. In the first place, it must be borne in mind that the application of Article 2(2) of Regulation No 1352/2014 in such a situation may, in appropriate cases, entail the annulment of an arbitration award that has been lawfully made, in accordance with the freely expressed wishes of the parties. (49) The requirements for legal certainty and for efficient arbitration proceedings mean that such annulments must be confined to cases of strict necessity. (50)
74. In the second place, as the Commission stated in response to a question asked by the Court at the hearing, a national court has before it the evidence adduced by the two parties, including the party whose possible links with designated persons are at issue. That necessarily implies a better comprehension of the circumstances, by comparison with the situation in which an economic operator must decide, in accordance with its own internal due diligence procedures, (51) whether to withhold funds.
(c) Is a reasonable risk sufficient?
75. It follows from the foregoing that the standard of proof that is required in order for a national court to annul an arbitration award on account of the prohibition set out in Article 2(2) of Regulation No 1352/2014 must be lower than that which is required in an action brought before Courts of the European Union for the annulment of a listing decision. This standard of proof must, however, be higher than that which is required in the absence of legal proceedings. The question thus arises of whether the existence of a reasonable risk that designated persons will benefit from all or part of the funds is sufficient in order for the prohibition set out in that provision to apply.
76. In that regard, I would note at the outset that neither Article 2(2) of Regulation No 1352/2014 nor any other provision of that regulation directly specifies the standard of proof that is required in order for the prohibition on making funds available to apply. That does not mean, however, that that question necessarily falls within the procedural autonomy of the Member States. (52) I consider that the requisite standard of proof for the application of that prohibition follows implicitly from the schemes of restrictive measures enacted by the European Union and must therefore be determined on the basis of EU law.
77. In that regard, I consider that the broad meaning of the concept of ‘making available’, to which I referred in my analysis of the first question, as well as the very nature of restrictive measures and the objectives which justify their adoption, call for a standard of proof that is based, essentially, on the existence of a reasonable risk. It follows that such a risk is intrinsically associated with the concept of ‘indirectly making available’, for the purposes of Article 2(2) of Regulation No 1352/2014, and must therefore form an integral part of that concept. (53)
78. Regarding, in the first place, the objectives which justify the adoption of restrictive measures in view of the situation in Yemen, (54) I would recall, in particular, that the prohibition set out in Article 2(2) of Regulation No 1352/2014 is intended to be preventive, in that it seeks to prevent the funds concerned from being used to engage in or provide support for acts that threaten the peace, security or stability of Yemen.
79. That objective, together with the need to ensure the effectiveness of Regulation No 1352/2014 and to prevent its circumvention, make it imperative that the prohibition set out in Article 2(2) of the regulation be applied whenever there is a reasonable risk that designated persons will benefit from all or part of the funds.
80. In the second place, it is settled case-law that restrictive measures are preventive, temporary and reversible, in that they are not supposed to deprive the persons affected of their property. (55) Moreover, the importance of the aims pursued by these measures is such as to justify negative consequences, even of a substantial nature, for some operators, including those who are in no way responsible for the situation which led to the adoption of the measures in question. (56)
81. Taking that case-law into account, I consider that the argument of the Ministry and of the French Government that the consequence of the annulment of the arbitration award would be that the legitimate government, which is supported by the international community, would not receive the funds concerned, is irrelevant.
82. The application of the prohibition set out in Article 2(2) of Regulation No 1352/2014 is neutral as regards the substance of the contractual dispute between DNO and the Ministry and YOGC. As DNO rightly observed at the hearing, there is nothing to prevent the Ministry from initiating a new arbitration procedure on its own. Nor would anything prevent the payment of the funds to YOGC once the risk of their being made indirectly available to designated persons no longer exists, or once those persons no longer appear on the list in Annex I to the regulation. (57)
83. In the third place, the interpretation according to which the prohibition set out in Article 2(2) of Regulation No 1352/2014 applies whenever there is a reasonable risk that a designated person will benefit from the funds is also supported by the Court’s case-law giving effect to the broad meaning of the concept of ‘making funds available’.
84. The Court held, in the judgment in SH, that the possibility of funds being passed on to a designated person could be caught by the prohibition set out in Article 2(2) of Regulation No 1352/2014. (58)
85. Moreover, the very fact that funds could be made available, directly or indirectly, to a designated person entails a danger that they may be diverted in order to support activities contrary to the objectives of the restrictive measures, whether or not it is proven that the funds are actually used by the entity in question for activities of that nature. (59)
86. Furthermore, it is settled case-law that, where the funds of an entity that fulfils the designation criteria are frozen, there is a not insignificant danger that that entity may, in order to circumvent the effect of the measures applying to it, exert pressure on the entities it owns or controls. The freezing of the funds of the entities which it owns or controls is therefore necessary and appropriate in order to ensure the effectiveness of the measures adopted and to ensure that those measures are not circumvented. (60)
87. Such control or ownership therefore gives rise to a not insignificant risk that the designated entity may benefit from funds belonging to the entities it owns or controls. It is this risk that justifies the freezing of funds belonging to those entities, as provided for in Article 2(1) of Regulation No 1352/2014.
88. The third question referred for a preliminary ruling is based on the premiss that a reasonable risk of such a benefit arising already exists. Having regard to the case-law cited in point 86 of this Opinion, I consider that a reasonable risk that designated persons will ultimately benefit from all or part of the funds made available to a non-designated entity must also be sufficient in order to render Article 2(2) of Regulation No 1352/2014 applicable.
89. Moreover, the need to ensure the full effect of EU law in the context of civil proceedings may, under certain circumstances, require the rules on the taking of evidence to be relaxed somewhat.
90. As I shall explain when examining the second question referred for a preliminary ruling, that relaxing of the rules would seem apposite in situations where, as the case may be, the applicant obviously has the greatest difficulty in gathering the relevant evidence, provided that the defendant is allowed to produce relevant evidence to contest the applicant’s claim. (61)
91. In such circumstances, the fact that all the evidence available to a national court tends to indicate, prima facie, that a prohibition laid down by EU law does apply would appear sufficient in order for it then to fall to the other party to establish to the requisite legal standard that it does not. (62) In my view, such a standard of proof equates, essentially, to the reasonable risk referred to in the third question posed by the national court.
92. I should also like to point out that several of the interveners have argued that a merely hypothetical, future risk that a designated person will benefit from the funds cannot be sufficient to warrant the application of Article 2(2) of Regulation No 1352/2014. While I agree with that approach in principle, I nevertheless consider that the word ‘reasonable’, used in the third question, itself allows for the exclusion of mere hypotheses that are not based on specific, precise and consistent evidence to indicate the existence of such a risk. In any event, the principles characterising national evidentiary rules must not be applied by the national courts in such a way that, in practice, irrelevant or insufficient evidence is admitted. (63)
93. I therefore propose that the answer to the third question referred for a preliminary ruling should be that Article 2(2) of Regulation No 1352/2014 is to be interpreted as meaning that the existence of a reasonable risk that designated persons will benefit from all or part of the funds paid to a non-designated entity, by reason of the enforcement of an arbitration award, triggers the application of the prohibition laid down in that provision.
C. The second question referred for a preliminary ruling
94. By its second question, the referring court asks, in essence, whether Article 2(2) of Regulation No 1352/2014 must be interpreted as meaning that, in the context of an action for annulment of an arbitration award ordering the payment of damages, the fact that designated persons exercise, within a non-designated public entity, an influence that competes with that of another non-designated entity permits the presumption that those designated persons control that public entity. If it does, the referring court then asks whether that presumption is rebuttable, having regard, in particular, to the absence of cooperation between that entity and those designated persons.
1. No presumption of control
95. In order to answer that question, I would first observe that the concept of ‘controlled company’ does not have the same meaning in the area of restrictive measures as it has in company law, where it serves to ascertain the commercial liability of a company which is legally subject to the control, as regards decision-making, of another commercial entity. (64)
96. In the area of restrictive measures, what is contemplated by the concept of ‘controlled company’ is a situation where the designated person or entity is able to influence the commercial decisions of another person or entity with which it has a commercial relationship, even in the absence of any legal tie between those two persons or entities, or any link in terms of ownership or equity participation. (65)
97. That said, it is possible to identify from the Council’s decision-making practice certain situations which imply that an entity is controlled, a (non-exhaustive) list of which is set out in paragraph 55d of the Guidelines on restrictive measures. (66)
98. Those situations have, in essence, been codified in certain regulations in the field. (67) One such situation is where a person or entity has the right or the de facto power to exercise a dominant influence. If any one of those conditions is fulfilled, control is established, unless the contrary can be proven on a case-by-case basis. (68)
99. On the other hand, even though, as is clear from the case-law mentioned in point 96 of this Opinion, other situations may be relevant, the fact remains that they must not give rise to a presumption of control over the entity in question. A fortiori, as is clear from point 50 of this Opinion, such other situations must not permit the presumption that funds are made indirectly available to a designated person, within the meaning of Article 2(2) of Regulation No 1352/2014. (69) In my view, one such situation is where there are competing influences.
100. It follows that it is for the court hearing an action against an arbitration award made in favour of an entity over which a competing influence is exercised by designated persons to make an assessment based not on general presumptions, but on an examination of the body of evidence adduced before it, taking into account the context in which that evidence fits, so as to determine whether that evidence establishes the existence of a reasonable risk that funds will be made indirectly available to those designated persons.
101. However, in order to provide the referring court with a truly useful answer, it is still necessary to clarify the allocation of the burden of proof in a dispute such as that in the main proceedings.
2. The allocation of the burden of proof
102. As may be recalled, it is apparent from the order for reference, and from the explanations given by the French Government at the hearing, that it is for the court hearing an action for annulment of an arbitration award to determine, specifically, whether the incorporation of an arbitration award into the French legal system clearly infringes international public policy. (70) According to the French Government, in essence, it falls to the party alleging such an infringement to prove it (or clearly demonstrate it). Thus, in the present case, subject to verification by the referring court, the burden of proof would lie entirely with the person alleging the infringement of Article 2(2) of Regulation No 1352/2014. (71)
103. It must be observed, however, that such a burden of proof is liable to make it impossible or excessively difficult, both for the referring court and for the applicant, to establish an infringement of the prohibition set out in Article 2(2) of Regulation No 1352/2014, and is thereby liable to undermine the effectiveness of that prohibition. (72)
104. The relevant evidence in order to establish or to rule out such an infringement is difficult for third parties to obtain, especially in a civil war context, as in the present case.
105. The Court has already recognised this difficulty in the context of listing decisions, pointing out that account may be taken of the context in which those measures fit and, in particular, of the difficulty of obtaining more specific evidence in a State in the midst of civil war. (73)
106. Moreover, in accordance with the case-law of the General Court, in the absence of investigative powers in third countries, the assessment of the EU authorities must rely on publicly available sources of information, reports, articles in the press, intelligence reports or other similar sources of information. Thus, press articles may be used in order to corroborate the existence of certain facts, if they are sufficiently specific, precise and consistent as regards the facts they describe. The General Court has also held that it would be excessive and disproportionate to require the Council itself to investigate on the ground the accuracy of facts which are relayed by numerous media. (74)
107. To my mind, those considerations apply a fortiori in the context of an action for annulment of an arbitration award before a national court.
108. The national courts, whose task it is to apply the provisions of EU law in areas within their jurisdiction, must ensure that they take full effect. (75)
109. In the present case, that also means that account must be taken of the essential nature of the provisions in question for the EU legal order and of their fundamental importance for the accomplishment of the tasks entrusted to the European Union. (76) Compliance with this type of provision must be subject to full and effective review by national courts in the context of actions for annulment of an arbitration award. (77)
110. In those circumstances, I consider that, in order to ensure that Article 2(2) of Regulation No 1352/2014 is fully effective in the context of an action for annulment of an arbitration award based on the alleged applicability of the prohibition set out in that provision, where all the evidence available to a national court (78) tends to indicate that there is a reasonable risk that designated persons will benefit from the funds paid to a non-designated entity, the onus is upon the defendants, in this instance the Ministry and the YOGC, to establish to the requisite legal standard that there is no such risk. (79)
111. According to the documents before the Court, the evidence before the national court concerns, in essence, the Houthi movement’s claim of control over YOGC, the mention on YOGC’s official website of the name of a Houthi minister, the fact that YOGC’s official website uses the domain name (‘.ye’) used by the Houthi movement, and the alleged attendance of the then Houthi Prime Minister at a YOGC meeting, reported by a Yemeni news agency.
112. In the light of the case-law which I have just recalled, (80) that evidence appears to be sufficient to indicate the existence of a reasonable risk that designated persons will benefit from the funds paid to a non-designated entity, which it is for the referring court to ascertain.
113. That being so, and in order to ensure the effectiveness of the prohibition on making funds available, it falls to the defendants to provide the referring court with evidence that tends to prove that that risk does not in fact exist. In that regard, they could, amongst other things, demonstrate that they have established internal procedures, such as firewalls, to avert such a risk, that YOGC’s website uses the domain name ‘.com’, or indeed that YOGC’s website has been hacked. As is clear from point 104 of this Opinion, the defendants are the only parties that might have this type of information.
114. Moreover, the fact that the legitimate government does not cooperate with the Houthi movement could also be taken into account by the referring court in its assessment of the probative value of each of the matters put before it. (81) Nevertheless, I do not consider that factor to be decisive. It is not the Houthi movement’s influence over the Ministry, but its influence over YOGC that could justify the application of Article 2(2) of Regulation No 1352/2014. It is therefore the extent of the Ministry’s influence over YOGC that will be decisive, in particular, in order to demonstrate that internal procedures have been adopted to ensure that the Houthi movement will not have access to the funds.
115. Furthermore, the Ministry stated at the hearing that, since DNO had paid it the amount due under the arbitration award in December 2023, and since YOGC had stated, in 2022, that it had assigned all its rights under the arbitration award to the Ministry and had no intention of claiming the sums already paid to the Ministry, there was no risk of infringement of the prohibition set out in Article 2(2) of Regulation No 1352/2014 in this case.
116. While the referring court may take those matters into account, in light of the principle of the unfettered assessment of the evidence, they cannot, in my view, decisively demonstrate the absence of such a risk. Even though the amount due was paid to the Ministry, the fact remains that the arbitration award was also made in favour of YOGC. Furthermore, the assignment of rights in question could be reversed, in so far as it was a legal act having only inter partes effect.
117. The Ministry also argues that to reverse the burden of proof and place it on the defendant, once it has been established that there is a reasonable risk that designated persons will benefit from the funds paid to a non-designated entity, would be contrary to the case-law according to which it is not for the person concerned to adduce evidence of the negative, that the reasons relied on against it are not well founded. (82) For reasons which I shall now explain, I do not share that view.
118. In the first place, it should be noted that that case-law concerns a listing decision. As I have already explained, that situation is subject to specific evidentiary requirements.
119. In the second place, as is apparent from my analysis, (83) such a reversal of the burden of proof is necessary in order to ensure the effectiveness of the prohibition set out in Article 2(2) of Regulation No 1352/2014. That is because it is usually the defendant that has more readily available to it the relevant evidence to demonstrate that there is no reasonable risk that designated persons will benefit from the funds paid to a non-designated entity. It is therefore a question of striking a balance between the various interests at stake and of avoiding rules that are either too strict, in particular in so far as concerns proving a negative, or too lax, the application of which would, in practice, result in a complete reversal of the burden of proof. (84)
120. I therefore propose that the answer to the second question referred for a preliminary ruling should be that Article 2(2) of Regulation No 1352/2014 is to be interpreted as meaning that, in the context of an action for annulment of an arbitration award based on the alleged applicability of the prohibition set out in that provision, the fact that designated persons exercise, within a non-designated public entity, an influence that competes with that of another non-designated entity does not permit the presumption that those designated persons control that public entity; where all the evidence available to a national court in such an action for annulment tends to indicate that there is a reasonable risk that designated persons will benefit from the funds paid to a non-designated entity, the latter must establish to the requisite legal standard that there is no such risk.
V. Conclusion
121. In light of all the foregoing considerations, I propose that the Court of Justice answer the questions referred by the Cour de cassation (Court of Cassation, France) for a preliminary ruling as follows:
Article 2(2) of Council Regulation (EU) No 1352/2014 of 18 December 2014 concerning restrictive measures in view of the situation in Yemen
is to be interpreted as meaning that:
– the payment of funds, by reason of the enforcement of an arbitration award, to an entity over which designated persons and a non-designated entity exercise competing influences may fall within the scope of that provision where those funds may be passed on to those persons or where those persons have the ability to dispose of them;
– the existence of a reasonable risk that designated persons will benefit from all or part of the funds paid to a non-designated entity, by reason of the enforcement of an arbitration award, triggers the application of the prohibition laid down in that provision;
– in the context of an action for annulment of an arbitration award based on the alleged applicability of the prohibition set out in that provision, the fact that designated persons exercise, within a non-designated public entity, an influence that competes with that of another non-designated entity does not permit the presumption that those designated persons control that public entity; where all the evidence available to a national court in such an action for annulment tends to indicate that there is a reasonable risk that designated persons will benefit from the funds paid to a non-designated entity, the latter must establish to the requisite legal standard that there is no such risk.
1 Original language: French.
2 Council Regulation of 18 December 2014 concerning restrictive measures in view of the situation in Yemen (OJ 2014 L 365, p. 60).
3 Signed at San Francisco (United States) on 26 June 1945.
4 As is apparent from its preamble, this regulation was adopted on the basis of Article 215 TFEU and Council Decision 2014/932/CFSP of 18 December 2014 concerning restrictive measures in view of the situation in Yemen (OJ 2014 L 365, p. 147).
5 A prohibition in identical terms appears in the majority of the European Union’s regulations enacting restrictive measures. The Court’s interpretation of such a prohibition in its case-law is therefore, in principle, relevant to the interpretation of Article 2(2) of Regulation No 1352/2014.
6 See paragraph 19 of Resolution 2140(2014).
7 See Annex I to Decision 2014/932, as most recently amended by Council Implementing Decision (CSFP) 2022/2035 of 24 October 2022 (OJ 274I L 2022, p. 4) and Annex I to Regulation No 1352/2014, as most recently amended by Council Implementing Regulation (EU) 2022/2034 of 24 October 2022 (OJ 274I L 2022, p. 1).
8 See Article 1 of Council Implementing Decision (CSFP) 2022/420 of 14 March 2022 implementing Decision 2014/932/CFSP concerning restrictive measures in view of the situation in Yemen (OJ 2022 L 86, p. 4) and Article 1 of Council Implementing Regulation (EU) 2022/419 of 14 March 2022 implementing Regulation (EU) No 1352/2014 concerning restrictive measures in view of the situation in Yemen (OJ 2022 L 86, p. 1).
9 Guidelines adopted by the Council on 8 December 2003 (15579/03). The guidelines were updated on 4 May 2018 (5664/18), and it is to that version that I shall refer in this Opinion.
10 The wording of paragraphs 55b to 55e of the Guidelines corresponds, in essence, to that of paragraphs 64, 68 and 70 of the Council document entitled ‘EU Best Practices for the effective implementation of restrictive measures’ (‘the Best Practices’), in the version of 3 July 2024 (11623/24).
11 The national court refers, in this regard, to the judgment of 17 May 2023 (appeal no 21-24.106, FR:CCASS:2023:C100324).
12 It appears from the case file available to the Court and from discussions at the hearing that YOGC’s headquarters are currently located in Aden. In its written observations, DNO nevertheless stated that YOGC’s headquarters were located in Sana’a. In addition, at the hearing, the Ministry stated that the Houthi movement had created a mirror YOGC entity, with headquarters in Sana’a.
13 See the document entitled ‘Action Document for Supporting Pathways for Economic Recovery in Yemen’, Annex II to the Commission Implementing Decision on the financing of the special measure in favour of Yemen for 2023, p. 6.
14 Judgment of 11 October 2007, Möllendorf and Möllendorf-Niehuus (C‑117/06, ‘the judgment in Möllendorf’, EU:C:2007:596, paragraph 51).
15 Judgment of 11 November 2021, Bank Sepah (C‑340/20, ‘the judgment in Bank Sepah’, EU:C:2021:903, paragraphs 53 and 54).
16 I should point out that the referring court does not ask the Court whether the enforcement of an arbitration award, as such, constitutes a ‘making available of funds’ within the meaning of Article 2(2) of Regulation No 1352/2014 or, if it does, what inferences should be drawn from that. That aspect is, however, in issue in the case Graudu sabiedrība, C‑701/25, currently pending before the Court. The answers which I shall propose in this Opinion will therefore have no bearing on the Court’s examination of that case. In any event, the funds in question in this case have already been transferred to the Ministry (see point 27 of this Opinion).
17 See point 23 of this Opinion.
18 The judgment in Möllendorf, paragraphs 50 and 51.
19 Judgment of 21 December 2011, Afrasiabi and Others (C‑72/11, ‘the judgment in Afrasiabi and Others’, EU:C:2011:874, paragraph 50).
20 The Court referred, in particular, to a United Nations resolution that had served as the basis for the adoption of the restrictive measures at issue in this case.
21 Judgment in Afrasiabi and Others, paragraph 51.
22 Judgment in Afrasiabi and Others, paragraph 52.
23 Judgment in Afrasiabi and Others, paragraph 53. I would observe that Article 7(3) of Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1), interpreted in the judgment in Afrasiabi and Others, prohibits funds being ‘made available … for the benefit of’ designated persons. Article 2(2) of Regulation No 1352/2014 also refers to funds being ‘made available … for the benefit of’ designated persons.
24 See points 21 and 22 of this Opinion.
25 See, by analogy, the judgment in Bank Sepah, paragraph 56. See also judgment of 12 March 2026, EM System (C-84/24, EU:C:2026:181, paragraph 79), where the Court emphasised that, in order to attain the objective pursued by the restrictive measures provided for in Regulation No 765/2006, it is necessary that those measures are applied to as wide a range of persons, groups or entities as possible in order to prevent them from being circumvented.
26 See, to that effect, the judgment in Bank Sepah, paragraph 54 and the case-law cited.
27 See, by analogy, the judgment in Bank Sepah, paragraph 55 and the case-law cited.
28 Judgment of 17 January 2019, SH (C‑168/17, ‘the judgment in SH’, EU:C:2019:36, paragraph 62).
29 Judgment of 29 June 2010, E and F (C‑550/09, EU:C:2010:382, paragraph 68).
30 See judgment of 29 June 2010, E and F (C‑550/09, EU:C:2010:382, paragraph 63).
31 See judgment of 18 September 2024, Kozitsyn v Council (T‑607/22 and T‑731/22, EU:T:2024:635, paragraph 65). As regards the non-binding effect of the document last updated by the Commission on 23 January 2026 relating to its guidelines, entitled ‘Frequently asked questions on the implementation of Council Regulation No 833/2014 and Council Regulation No 269/2014’, see the Opinion of Advocate General Medina in Jemerak (C‑109/23, EU:C:2024:307, point 69).
32 See also, to the same effect, the document entitled ‘Frequently asked questions on the implementation of Council Regulation No 833/2014 and Council Regulation No 269/2014’, p. 29.
33 See judgment in SH, paragraph 62.
34 Judgment of 5 May 2015 (T‑433/13, EU:T:2015:255).
35 Judgment of 5 May 2015, Petropars Iran and Others v Council (T‑433/13, EU:T:2015:255, paragraph 80).
36 Paragraph 62 of that judgment.
37 See, by analogy, Opinion of Advocate General Biondi in Reibel (C‑802/24, EU:C:2026:110, point 37).
38 See, to that effect, judgment in Möllendorf, paragraph 62. See also paragraph 33 of the Best Practices.
39 See, to that effect, Opinion of Advocate General Bot in Afrasiabi and Others (C‑72/11, EU:C:2011:737, point 92).
40 See, to that effect, judgment in Afrasiabi and Others, paragraphs 55 and 56.
41 See paragraph 68 of the Best Practices.
42 See recital 3 of Regulation No 1352/2014.
43 See judgments of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraphs 55, 88, and 89), and of 10 September 2024, Neves 77 Solutions (C‑351/22, EU:C:2024:723, paragraph 45).
44 See, to that effect, judgment of 1 August 2025, Timchenko v Council (C‑702/23 P, EU:C:2025:605, paragraph 38 and the case-law cited).
45 See, to that effect, judgment of 1 August 2025, Timchenko v Council (C‑702/23 P, EU:C:2025:605, paragraph 39 and the case-law cited).
46 See point 66 of this Opinion.
47 See judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 132 and the case-law cited).
48 See judgment of 12 March 2026, EM System (C‑84/24, EU:C:2026:181, paragraph 102).
49 See judgments of 6 March 2018, Achmea (C‑284/16, EU:C:2018:158, paragraph 55), and of 1 August 2025, Royal Football Club Seraing (C‑600/23, ‘the judgment in Royal Football Club Seraing’, EU:C:2025:617, paragraphs 78 and 79).
50 See, to that effect, judgments of 1 June 1999, Eco Swiss (C‑126/97, EU:C:1999:269, paragraph 35), of 26 October 2006, Mostaza Claro (C‑168/05, EU:C:2006:675, paragraph 34), and in Royal Football Club Seraing (paragraph 84).
51 See the document entitled ‘Commission opinion on Article 2(2) of Council Regulation (EU) No 269/2014’, C(2021) 4223 final, p. 4.
52 See, by analogy, judgment of 4 June 2009, T-Mobile Netherlands and Others (C‑8/08, EU:C:2009:343, paragraphs 46, 52 and 53).
53 See, by analogy, judgments of 4 June 2009, T-Mobile Netherlands and Others (C‑8/08, EU:C:2009:343, paragraphs 51 to 53), and of 21 January 2016, Eturas and Others (C‑74/14, EU:C:2016:42, paragraph 33).
54 See points 41 to 43 of this Opinion.
55 See judgment of 15 December 2022, Instrubel and Others (C‑753/21 and C‑754/21, EU:C:2022:987, paragraph 50 and the case-law cited).
56 See judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 361 and the case-law cited), and of 1 August 2025, Timchenko v Council (C‑703/23 P, EU:C:2025:608, paragraph 62).
57 See, to that effect, Opinion of Advocate General Mengozzi in SH (C‑168/17, EU:C:2018:798, point 53).
58 Judgment in SH, paragraph 62.
59 Judgment of 29 June 2010, E and F (C‑550/09, EU:C:2010:382, paragraph 77).
60 See judgments of 13 March 2012, Melli Bank v Council (C‑380/09 P, EU:C:2012:137, paragraph 58); of 22 September 2016, NIOC and Others v Council (C‑595/15 P, EU:C:2016:721, paragraph 89); and of 31 January 2019, Islamic Republic of Iran Shipping Lines and Others v Council (C‑225/17 P, EU:C:2019:82, paragraph 110).
61 See, to that effect, judgment 21 December 2021, Bank Melli Iran (C‑124/20, ‘the judgment in Bank Melli Iran’, EU:C:2021:1035, paragraphs 65 to 67), and Opinion of Advocate General Hogan in that case (EU:C:2021:386, point 95). See also, to that effect, judgment of 21 June 2017, W and Others (C‑621/15, EU:C:2017:484, paragraphs 28 to 32).
62 See judgment in Bank Melli Iran (paragraph 67).
63 See, by analogy, judgment of 21 June 2017, W and Others (C‑621/15, EU:C:2017:484, paragraphs 34 and 35).
64 See judgment of 10 September 2019, HTTS v Council (C‑123/18 P, EU:C:2019:694, paragraph 70).
65 See judgment of 10 September 2019, HTTS v Council (C‑123/18 P, EU:C:2019:694, paragraph 71).
66 See point 47 of this Opinion.
67 See, inter alia, Article 1(6) of Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70) and Article 1(j) of Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6). As regards that latter regulation, see also recital 6 of Council Regulation (EU) 2025/2037 of 23 October 2025 amending Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ L, 2025/2037).
68 See paragraph 55d, in fine, of the Guidelines on restrictive measures. See also judgment of 12 March 2026, EM System (C‑84/24, EU:C:2026:181, paragraph 88).
69 See, a contrario, paragraph 55d of the Guidelines on restrictive measures.
70 See point 14 of this Opinion.
71 See, by analogy, judgment in Bank Melli Iran (paragraph 64).
72 See, by analogy, judgment in Bank Melli Iran (paragraph 65).
73 Judgment of 21 April 2015, Anbouba v Council (C‑605/13 P, EU:C:2015:248, paragraph 46). See also judgment of 1 October 2020, Drex Technologies v Council (C‑348/19 P, EU:C:2020:782, paragraph 89).
74 Judgment of 6 November 2024, Karić v Council (T‑520/22, EU:T:2024:774, paragraph 82 and the case-law cited).
75 Judgment of 17 September 2002, Muñoz and Superior Fruiticola (C‑253/00, EU:C:2002:497, paragraph 28 and the case-law cited). See also, specifically concerning regulations instituting restrictive measures, Opinion of Advocate Norkus in Čiekuri-Shishki (C‑480/24, EU:C:2025:672, point 41).
76 I would observe that, in the present case, none of the questions referred for a preliminary ruling concerns the public policy nature of the restrictive measures adopted by the European Union. That point is, however, at issue in the cases Reibel, C‑802/24, and Graudu sabiedrība, C‑701/25, which are pending before the Court. I shall therefore confine myself to stating that the importance of the objectives pursued by the restrictive measures adopted by the European Union seems undeniable (see, by analogy, judgment in Royal Football Club Seraing, paragraphs 87 to 89, and Opinion of Advocate General Biondi in Reibel, C‑802/24, EU:C:2026:110, point 63). In any event all the interveners take it as given that Article 2(2) of Regulation No 1352/2014 falls within EU public policy. Furthermore, that provision falls within French international public policy, See, with regard to the relationship between EU public policy and that of the Member States, judgment of 4 October 2024, Real Madrid Club de Fútbol (C‑633/22, EU:C:2024:843, paragraph 39).
77 See, to that effect, judgment in Royal Football Club Seraing (paragraphs 82 and 85 to 87). See also Opinion of Advocate General Biondi in Reibel (C‑802/24, EU:C:2026:110, point 58).
78 The question of whether a national court is obliged to verify on its own initiative whether any of the parties to the proceedings is one of the persons targeted by the restrictive measures is addressed in the pending case Čiekuri-Shishki (C‑480/24). In his Opinion in that case, Advocate General Norkus suggested that the answer to that question should be that ‘the court hearing the case is required to verify on its own initiative, where it has indicia, whether one of the parties to the proceedings is among the persons referred to in Article 2 or Article 11(1)(a) or (b) of Regulation No 269/2014 and, for that purpose, to employ all the powers of inquiry at its disposal. In particular, it is required to seek the necessary information from the specialised competent authorities, in order to be in a position to carry out that examination’ (Opinion of Advocate General Norkus in Čiekuri-Shishki, C‑480/24, EU:C:2025:672, point 60).
79 See, by analogy, judgment in Bank Melli Iran (paragraph 67). See also, by analogy, judgments of 27 October 1993, Enderby (C‑127/92, EU:C:1993:859, paragraphs 14 and 18), and of 31 May 1995, Royal Copenhagen (C‑400/93, EU:C:1995:155, paragraphs 24 and 26).
80 See points 105 and 106 of this Opinion.
81 See, to that effect, Opinion of Advocate General Bot in Afrasiabi and Others (C‑72/11, EU:C:2011:737, point 58).
82 Judgment of 18 July 2013, Commission and Others v Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 121).
83 See point 104 of this Opinion.
84 See, by analogy, judgment of 15 October 2015, Nike European Operations Netherlands (C‑310/14, EU:C:2015:690, paragraph 29).