Case C‑430/16 P
Bank Mellat
v
Council of the European Union
(Appeal — Common foreign and security policy (PESC) — Combating of nuclear proliferation — Restrictive measures against the Islamic Republic of Iran — Sector-specific measures — Restrictions on transfers of funds involving Iranian financial institutions — Strengthening of restrictions — Regime at issue adopted under the provisions of Decision 2012/635/CFSP and of Regulation (EU) No 1263/2012 — Implementation of the Joint Comprehensive Plan of Action on the Iranian nuclear issue — Lifting of all restrictive measures of the European Union related to this issue — Repeal of regime at issue in the course of proceedings before the General Court of the European Union — Effect on interest in bringing proceedings before the General Court — No continuation of interest in bringing proceedings)
Summary — Judgment of the Court (Second Chamber), 6 September 2018
Actions for annulment — Interest in bringing proceedings — No continuation of interest in bringing proceedings — Absolute bar to proceeding
(Art. 263, fourth para., TFEU; Rules of Procedure of the Court of Justice, Art. 149; Rules of Procedure of the General Court, Art. 131)
Actions for annulment — Interest in bringing proceedings — Interest to be assessed at the time at which an action is brought — Action brought against a measure introducing sector-specific restrictive measures concerning restrictions on transfers of funds involving financial institutions — Repeal of the contested measure in the course of the proceedings — Declaration that no need to adjudicate — Lawfulness — No interest for the applicant in obtaining a declaration of illegality of the contested measure
(Art. 263, fourth para., 4, TFEU; Council Decision 2012/635/CFSP, Art. 1(6); Council Regulation No 1263/2012, Art. 1(15))
Actions for annulment — Interest in bringing proceedings — Repeal of the contested act in the course of the proceedings — Interest of the applicant in bringing proceedings capable of continuing in view of a risk of repetition of the alleged unlawfulness — Burden of proof
(Art. 263, fourth para., TFEU)
The need to adjudicate on the ground that there is no continuing interest in bringing proceedings may be raised by the EU Courts of their own motion.
(see para. 49)
An applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate; which presupposes that the action must be capable, if successful, of procuring an advantage for the party bringing it.
As regards an action for the annulment of a regulation imposing sector-specific restrictive measures concerning restrictions on transfers of funds involving Iranian financial institutions, the repeal of those measures after an action is brought eliminates a commercial bank’s interest in bringing an action for the annulment of that regulation, since the action was not capable, if successful, of procuring an advantage for the applicant. More particularly, it cannot be maintained that restrictive measures of general application consisting essentially in prohibiting transactions between banks and financial institutions of the European Union and of the Islamic Republic of Iran are likely to cause, as regards an individual operator, clear non-material harm resulting in damage to its reputation, comparable to that caused by the opprobrium and suspicion that accompany the public designation of the persons covered as being associated with, for example, a terrorist organisation or that annulment of those measures would be such as to procure an advantage for the bank in question, in the form of its rehabilitation and, thus, to offer it some form of reparation for such non-material harm. Such sector-specific restrictive measures are of a very different nature than individual fund and asset freezing measures in so far as they do not target identified natural or legal persons, the scope of those measures being determined by reference to objective criteria. The fact that the activities of a bank or financial institution may have been affected by the sector-specific restrictive measures in question does not mean that such measures constitute a penalty for a specific conduct attributable to that entity, since those general measures apply irrespective of the possible involvement of the latter in Iranian nuclear proliferation.
Furthermore, even assuming the existence of damage that can be made good, the adoption of sector-specific restrictive measures does not have a separate, effective impact on a bank where that bank is, throughout the application of the sector-specific restrictive measures, subject, to individual restrictive measures imposing more severe restrictions.
(see paras 50, 55-59, 61, 62, 68)
In certain circumstances, an applicant may retain an interest in seeking the annulment of an act repealed in the course of proceedings, in order to induce the author of the contested measure to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of that measure will be repeated. However, the principle thus enshrined in the case-law must be limited to situations in which the applicant demonstrates precisely and specifically the existence of a risk of repetition of the alleged unlawfulness.
Thus, the mere assumption of the repetition of an alleged unlawfulness by the adoption, in the future, of restrictive measures comparable to those introduced by the measure at issue is not sufficient to demonstrate, in view, inter alia, of the Council’s broad discretion in defining the subject of the restrictive measures, in a sufficiently precise and specific manner, the risk of such a repetition to enable an applicant to retain an interest in bringing proceedings.
(see paras 64, 65, 67)