18

By application lodged at the Court Registry on 3 August 2011, the applicant brought the present action.

19

By separate document, lodged at the Court Registry on the same day, the applicant applied, pursuant to Article 76a of the Rules of Procedure of the General Court, for the case to be decided under an expedited procedure. By decision of 12 September 2011, the President of the Fourth Chamber of the General Court refused that application.

20

By documents lodged at the Court Registry on 27 October and 14 November 2011 respectively, the European Commission and the United Kingdom of Great Britain and Northern Ireland applied for leave to intervene in support of the form of order sought by the Council. By order of 23 January 2012, the President of the Fourth Chamber of the General Court granted them leave to intervene.

21

By letter lodged at the Court Registry on 19 January 2012, the applicant requested permission to amend the form of order sought, in the light of the adoption of the measures of 1 December 2011. By decision of 12 March 2012, the Fourth Chamber of the General Court authorised the lodging of a statement amending the form of order sought and the pleas in the action and, to that end, set the applicant a deadline expiring on 23 April 2012.

22

By document lodged at the Court Registry on 23 April 2012, the applicant amended the form of order sought and its pleas in law in the light of the adoption of the measures of 1 December 2011 (‘the first amendment of the form of order sought’).

23

By letter lodged at the Court Registry on 27 April 2012, the applicant again amended the form of order sought and its pleas in law in the light of the adoption of Regulation No 267/2012 (‘the second amendment of the form of order sought’).

24

By documents lodged at the Court Registry on 20 June and 25 June 2012 respectively, the Council and the United Kingdom submitted their observations on the first and second amendments of the form of order sought.

25

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

26

The parties presented oral argument and answered the questions put by the Court at the hearing on 20 February 2013.

27

In the application and the first and second amendments of the form of order sought, the applicant claims that the Court should:

28

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

29

The United Kingdom contends that the Court should dismiss the action as unfounded

123

In the light of the arguments put forward by the parties, it is necessary to examine whether, as the Council maintains, the transactions referred to in the grounds of the contested measures justified the inclusion of the applicant’s name on the Lists. Given that those transactions took place ‘[i]n 2009’, ‘[shortly after] early August 2010’, ‘[i]n August 2010’ and ‘[a]s of October 2010’ – that is to say, with the exception of transactions that took place between 27 and 31 October 2010, before the entry into force on 27 October 2010 of Regulation No 961/2010 in accordance with the first paragraph of Article 41 thereof – it is appropriate to examine, on the one hand, whether the transactions that took place before 27 October 2010 were carried out in accordance with Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1) and, on the other, whether the transactions that took place after that date were carried out in accordance with Regulation No 961/2010.

124

Accordingly, the Court will first interpret Articles 7 to 10 of Regulation No 423/2007, as to the application of which the parties were questioned in writing by the Court, and Articles 16 to 19 and 21 of Regulation No 961/2010, in order to ascertain the legal force of an authorisation or approval that would be given by the competent national authority, such as the Bundesbank in this instance. It must be pointed out that Articles 7 to 10 of Regulation No 423/2007 correspond, in essence, to Articles 16 to 19 of Regulation No 961/2010 and that they will therefore be examined together. The latter regulation also includes a provision (Article 21) dealing specifically with the transfer of funds to or from Iranian entities. Next, the Court will examine whether, in the present case, the transactions referred to in the grounds of the contested measures were, as the applicant submits, carried out in accordance with those provisions.

125

With regard, first of all, to the interpretation of Articles 7 to 10 of Regulation No 423/2007 and of Articles 16 to 19 and 21 of Regulation No 961/2010, it should be borne in mind that, in interpreting a provision of European Union law it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part (Case 292/82 Merck [1983] ECR 3781, paragraph 12).

126

In the first place, it must be noted that Article 7(1) and (2) of Regulation No 423/2007 and Article 16(1) and (2) of Regulation No 961/2010 provide that all funds and economic resources belonging to the persons, entities and bodies listed in Annexes IV and V and in Annexes VII and VIII to Regulation No 423/2007 and Regulation No 961/2010 respectively are to be frozen (‘the freezing of funds principle’).

127

Moreover, Articles 8 to 10 of Regulation No 423/2007 and Articles 17 to 19 of Regulation No 961/2010 provide, in essence, that, ‘[b]y way of derogation’ from Article 7 of Regulation No 423/2007 and from Article 16 of Regulation No 961/2010 respectively, ‘the competent authorities of the Member States … may authorise the release of certain frozen funds or economic resources, if the … conditions [set out in the above-mentioned provisions] are met’. Those conditions essentially relate, on the one hand, to the nature of the intended use of the funds and economic resources and, on the other, as regards the derogations in Articles 9 and 10 of Regulation No 423/2007 and in Articles 18 and 19 of Regulation No 961/2010, to the prior notification of authorisations to the Sanctions Committee of the United Nations Security Council or to the other Member States and to the Commission, as appropriate. Furthermore, Articles 9 and 10 of Regulation No 423/2007 as well as Articles 18 and 19 of Regulation No 961/2010 specify that those authorisations may be granted ‘under such conditions as [the competent national authorities] deem appropriate’. That wording calls for the two following observations.

128

First of all, therefore, it follows from those provisions that the competent national authorities are granted the power to authorise the release of certain funds in certain circumstances and by way of an exception to the freezing of funds principle. For that purpose, they must assess each intended transaction on a case‑by‑case basis in order to ascertain whether the conditions under which they may authorise a release are met, while the entities concerned have a corresponding obligation to request authorisation for each transaction falling within the scope of those provisions. Articles 8 to 10 of Regulation No 423/2007 and Articles 17 to 19 of Regulation No 961/2010 do not, therefore, allow the competent national authorities to give general approval to a certain category of transactions in respect of which the entities concerned would accordingly be relieved of the need to request authorisation on a case‑by‑case basis.

129

Secondly, contrary to the Council’s assertions, such authorisation attests to the lawfulness – with regard to Regulation No 423/2007 or Regulation No 961/2010, as appropriate – of the transaction authorised. Accordingly, the Council cannot, save in exceptional circumstances, which it is for the Council to demonstrate, base the adoption of restrictive measures that are to apply in the future on transactions authorised in accordance with Articles 8, 9 or 10 of Regulation No 423/2007 or with Articles 17, 18 or 19 of Regulation No 961/2010, as appropriate. By contrast, a mere general approval cannot, in the absence of authorisation on a case‑by‑case basis, bind the Council.

130

The context of Articles 8 to 10 of Regulation No 423/2007 and Articles 17 to 19 of Regulation No 961/2010, and, in particular, the general scheme of those regulations, reinforces this textual analysis. Given their position in Regulation No 423/2007 and in Regulation No 961/2010, Articles 8 to 10 of the former and Articles 17 to 19 of the latter regulation are presented as modifying the freezing of funds principle laid down by Article 7 of Regulation No 423/2007 and Article 16 of Regulation No 961/2010 respectively, which precede them.

131

Lastly, the interpretation prompted by the textual and contextual analyses is in line with the objective of Regulations No 423/2007 and No 961/2010, namely the intent to prevent nuclear proliferation and, more generally, to maintain international peace and security, given the seriousness of the risk posed by nuclear proliferation.

132

In the second place, with regard to transactions that are carried out via a non‑designated entity with the aim of making payments or, as in the context of the Third Way procedure, of settling the debts of designated entities (‘transactions carried out via a non-designated entity’), it must be noted that neither Regulation No 423/2007 nor Regulation No 961/2010 contains any express provision under which such transactions should be authorised.

133

Nevertheless, it is apparent from the provisions, the general scheme and the objective of Regulation No 423/2007 and Regulation No 961/2010 that transactions carried out via a non-designated entity are not automatically lawful, and that, in order to ensure that Article 7 of Regulation No 423/2007 and Article 16 of Regulation No 961/2010 are effective, the entities concerned must satisfy themselves as to the lawfulness of such transactions by requesting authorisation from their competent national authorities where appropriate.

134

First of all, under Article 7(4) of Regulation No 423/2007 and Article 16(4) of Regulation No 961/2010, it is prohibited knowingly and intentionally to participate in activities the object or effect of which is, directly or indirectly, to circumvent the prohibitory measures set out in paragraphs 1 to 3 of those provisions. Those provisions constitute a prohibitory measure the infringement of which is of itself capable of independently forming the basis for the imposition of penalties, including criminal penalties, under the applicable national law, in accordance with Article 16(1) of Regulation No 423/2007 and Article 37(1) of Regulation No 961/2010 (see, to that effect, Case C-72/11 Afrasiabi and Others [2011] ECR I-14285, paragraphs 34 and 35).

135

Furthermore, by referring in Article 7(4) of Regulation No 423/2007 and in Article 16(4) of Regulation No 961/2010 to the activities the object or effect of which is, directly or indirectly, to ‘circumvent’ the prohibitory measures set out in paragraphs 1 to 3 of each of those provisions, the European Union legislature refers to activities which have the aim or result of enabling their author to avoid the application of that prohibition (see, to that effect, Afrasiabi and Others, paragraph 134 above, paragraph 60). The cumulative conditions of knowledge and intent set out in Article 7(4) of Regulation No 423/2007 and Article 16(4) of Regulation No 961/2010 are met where the person participating in an activity covered by those provisions deliberately seeks the object or the effect, direct or indirect, of circumvention connected therewith. They are also met where the person in question is aware that his participation in such an activity can have that object or effect and accepts that possibility (see, to that effect, Afrasiabi and Others, paragraph 134 above, paragraph 67).

136

Accordingly, transactions carried out via a non-designated entity are capable of infringing the prohibition laid down in Article 7(4) of Regulation No 423/2007 and Article 16(4) of Regulation No 961/2010 respectively where they have the aim of carrying out financial transactions concerning a designated entity and the entities involved in such a transaction are in fact seeking to achieve that aim or know that their participation in that transaction can have that object or effect and accept that possibility. In such circumstances, it is for the entity relying on the conformity of its transactions with Regulation No 423/2007 or Regulation No 961/2010, as appropriate, to demonstrate that the conditions for the prohibition in Article 7(4) of Regulation No 423/2007 or Article 16(4) of Regulation No 961/2010, as appropriate, are not met.

137

Moreover, it must be observed that there are specific rules governing transfers of funds to and from an Iranian person, entity or body provided for in Article 21 of Regulation No 961/2010, which has no equivalent in Regulation No 423/2007. In particular, Article 21 imposes an obligation to obtain prior authorisation from the competent national authorities for any transfer – other than transfers covered by Article 21(1)(a) – of or above EUR 40 000. Such authorisation is, in accordance with Article 21(4) of Regulation No 961/2010, to be granted unless the transfer of funds envisaged contributes to the activities mentioned in that provision. By contrast, transfers of funds below EUR 40 000 do not require prior authorisation, but must be notified if above EUR 10 000.

138

It follows by contrary inference from Article 21 of Regulation No 961/2010 that transfers of funds to and from Iranian persons, entities or bodies – including, as is evident from Article 1(m) of that regulation, non-designated Iranian persons, entities or bodies – may, in principle, be carried out provided that the conditions of Article 21 are met. Consequently, Article 21 of Regulation No 961/2010 constitutes a modification of the freezing of funds principle laid down in Article 16 of Regulation No 961/2010, since, as is evident from Article 1(i) of that regulation, the freezing of funds means preventing, inter alia, any transfer of funds that would result in any change in their volume, amount, location, ownership, possession, character or destination.

139

However, given that, as is evident from the preceding paragraph, Article 21 of Regulation No 961/2010 constitutes a modification of the principle set out in Article 16 of that regulation, it must be concluded that Article 21 of Regulation No 961/2010 must be interpreted in a way which is consistent with Article 16(4) of that regulation. Article 16(4) prohibits the circumvention, knowingly and intentionally, of the measures referred to in paragraphs 1 to 3. Accordingly, any transfers of funds that may be carried out in accordance with Article 21 cannot facilitate the circumvention of the prohibition under Article 16(4) of Regulation No 961/2010.

140

Secondly, it must be observed that, as regards credit and financial institutions, like the applicant, Article 11a(1)(a) of Regulation No 423/2007, as inserted by Article 1(h) of Council Regulation (EC) No 1110/2008 of 10 November 2008 amending Regulation No 423/2007 (OJ 2008 L 300, p. 1), requires those institutions which come within the scope of Article 18 of Regulation No 423/2007 to ‘exercise continuous vigilance over account activity’ in their relations with the credit and financial institutions referred to in paragraph 2 of Article 11a, that is, inter alia, credit and financial institutions domiciled in Iran. According to Article 18 of Regulation No 423/2007, that regulation is to apply, inter alia, to any legal person, entity or body which is incorporated, like the applicant, or constituted under the law of a Member State, and to any legal person, entity or body in respect of any business done in whole or in part within the Community. Article 23(1)(a) of Regulation No 961/2010 imposes a similar obligation of vigilance over account activity on credit and financial institutions which fall within the scope of Article 39 of that regulation.

141

Consequently, the effectiveness of the combined provisions of Articles 7 to 10 of Regulation No 423/2007 and of Articles 16 to 19 and 21 of Regulation No 961/2010 would be compromised if a non-designated entity were free to carry out transactions via a non-designated entity for the purpose of settling debts or making payments on behalf of a designated entity. It follows from this that a non‑designated entity must always satisfy itself as to the legality of such transactions by requesting authorisation from the competent national authority where appropriate.

142

It is in the light of that interpretation of Regulation No 423/2007 and of Regulation No 961/2010 that the Court must examine, next, whether in this instance the transactions referred to in the grounds of the contested measures were lawful.

143

It will be recalled that, in order to demonstrate that all the transactions which it carried out were lawful, the applicant maintains that they were either authorised by the Bundesbank, or excluded from the scope of the restrictive measures, or carried out in accordance with a procedure approved by the Bundesbank (the Third Way procedure), as appropriate.

144

The Court will examine, first of all, the transactions allegedly excluded from the scope of the restrictive measures; secondly, the transactions allegedly authorised; and, thirdly, the transactions allegedly carried out in accordance with the Third Way procedure.

145

In the first place, with regard to the transactions allegedly excluded from the scope of the restrictive measures, it must be noted that the applicant merely maintains that some of its transactions were excluded from the scope of those measures, without otherwise substantiating its reasoning in that regard, which concentrates on the transactions that were authorised or approved. In those circumstances, that argument must be rejected as inadmissible in the light of Article 44(1) of the Rules of Procedure.

146

Moreover, the applicant explained at the hearing that the Bundesbank’s approval of the Third Way procedure was based on the consideration that the transactions carried out in accordance with that procedure were excluded from the scope of Article 7 of Regulation No 423/2007 or of Article 16 of Regulation No 961/2010, as appropriate. In those circumstances, that argument will be considered in the examination of the transactions allegedly approved and carried out in accordance with the Third Way procedure.

147

In the second place, with regard to the transactions allegedly authorised by the Bundesbank, the applicant submits that its transactions were, where necessary, authorised on the basis of Article 18 or Article 21 of Regulation No 961/2010, as appropriate. In answer to a written question from the Court, it added that, before the entry into force of Regulation No 961/2010, it always sought authorisation in accordance with Articles 8 to 10 of Regulation No 423/2007 where necessary. In order to demonstrate that its transactions were in fact lawful, however, the applicant merely annexes to the application a list of transactions allegedly authorised pursuant to Article 18 of Regulation No 961/2010 that took place between 2 September 2010 and 21 July 2011 involving Bank Mellat, Bank Sepah, Bank Saderat Iran and Bank Saderat Plc (Bank Saderat London), Future Bank and Postbank of Iran. Moreover, it produces 10 ‘examples’ of authorisations granted, pursuant to Article 21(4) of Regulation No 961/2010, on 7 and 24 January 2011, 3 February 2011, 23 March 2011, 13 and 19 May 2011 and 16 June 2011 in respect of transactions carried out in accordance with the Third Way procedure for which such authorisation was necessary.

148

As regards those transactions referred to in the grounds of the contested measures which took place before 2 September 2010, the applicant cannot reasonably claim that the conditions for entering its name on the Lists, on the grounds of transactions that took place in 2009 and 2010, were not met because the transactions which it carried out between 2 September 2010 and 21 July 2011 were authorised. Accordingly, that argument must be rejected as ineffective in so far as it concerns the transactions referred to in the grounds of the contested measures which took place before 2 September 2010.

149

Moreover, as regards the transactions that took place from 2 September 2010, it must be held that the examples of authorisations mentioned in paragraph 147 above are insufficient to support the applicant’s argument that all the transactions which it carried out in the periods after 2 September 2010 referred to in the grounds of the contested measures were lawful. Accordingly, that argument must be rejected as unfounded in so far as it concerns those transactions.

150

In the third place, as regards the transactions allegedly carried out in accordance with the Third Way procedure approved by the Bundesbank, the applicant stated at the hearing that, according to the Bundesbank, they were excluded from the scope of Article 7 of Regulation No 423/2007 or of Article 16 of Regulation No 961/2010, as appropriate. Furthermore, since the adoption of Regulation No 961/2010, it had always requested authorisation in accordance with Article 21 of that regulation where such authorisation was required. In that regard, not only must that last argument be rejected for the reasons set out in paragraph 147 above, but it must be noted at the outset that, in the light of the considerations set out in paragraphs 135 to 139 above, the transactions allegedly carried out in accordance with the Third Way procedure infringe the prohibition laid down in Article 7(4) of Regulation No 423/2007 and in Article 16(4) of Regulation No 961/2010. Those transactions, according to the definition provided in the application, had the aim of carrying out financial transactions concerning designated entities, in so far as they were intended to ensure, inter alia, that the designated Iranian banks’ earlier obligations were satisfied. The applicant was aware not only of the existence of the system of restrictive measures against Iran but also of the fact that, notwithstanding the freezing of funds principle, the Third Way procedure enabled transactions concerning designated banks to be carried out.

151

Consequently, the conduct, by a financial institution, of transactions in accordance with the Third Way procedure, in principle, justifies the adoption of restrictive measures – unless those transactions were authorised by the competent national authority in accordance with Regulation No 423/2007 or Regulation No 961/2010, as appropriate – and falls, contrary to what the applicant argued at the hearing, within the scope of Article 7 of Regulation No 423/2007 or of Article 16 of Regulation No 961/2010, as appropriate.

152

The applicant nevertheless maintains that those transactions were lawful. In order to demonstrate their lawfulness, it annexed to the application, inter alia:

153

First, it must be observed that it is true that, according to the text of the emails from the Bundesbank, ‘movements by banks between accounts of unlisted persons [were] also permissible if the purpose [was] to redeem the debts of listed persons or establishments’. Moreover, it is apparent from the Bundesbank email dated 24 May 2007 that the request made on 18 April 2007 for authorisation of the receipt of payments from Bank Sepah was ‘superfluous’.

154

However, the Court considers that, in the absence of authorisations granted on a case‑by‑case basis, those emails, and the confirmation emails and notes of telephone conversations, do not suffice to demonstrate that the transactions referred to in the grounds of the contested measures were lawful under Regulation No 423/2007 and Regulation No 961/2010, in view of the considerations set out in paragraphs 136 to 141 above. A general, blanket approval that does not distinguish the nature of the precise transactions and the designated entities concerned is insufficient. Moreover, except for one call that took place after the applicant had been entered on the Lists, the emails, letters and telephone calls in question predate the transactions referred to in the grounds of the contested measures by either one or two years. In the light of the requirement for vigilance noted in paragraph 140 above, a reasonably diligent financial institution ought to have requested more information about the ‘approval’ received.

155

Secondly, with regard to the letters from the Österreichische Nationalbank, suffice it to note that that authority is not the competent national authority, within the meaning of Regulation No 423/2007 and Regulation No 961/2010, for Germany. Yet the applicant is established in Germany.

156

Thirdly, contrary to what is asserted by the applicant, it is not apparent from the audit reports referred to in the third indent of paragraph 152 above that it complied in any event with the requirements relating to the restrictive measures. On the contrary, not only do the two audit reports drawn up by the Bundesbank and the 23 December 2010 report provide an analysis of the financial transactions carried out by the applicant that is not exhaustive but based on a sample, but the 23 December 2010 report expressly finds that the transactions carried out in 2010 using the Third Way procedure were capable of counteracting the objectives of the European Union’s sanctions policy.

157

It follows from the foregoing that, contrary to what is claimed by the applicant, in the absence of authorisations granted on a case‑by‑case basis, the transactions referred to in the grounds of the contested measures are not lawful under Regulation No 423/2007 and Regulation No 961/2010, as appropriate. Accordingly, taking into account the considerations set out in paragraphs 129 and 141 above, the Council could legitimately base the adoption of restrictive measures against the applicant on those transactions.

…

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby: