The Court of Justice has dismissed two appeals, both challenges to the EU Council’s practice of re-listing entities that had won their annulment challenges, without there being any change in factual circumstances.
In July 2014, the EU General Court annulled the initial EU Iran sanctions listing of the National Iranian Tanker Company (NITC) because the EU’s claim that NITC provided financial support to the Iranian government was unsubstantiated (see previous blog).
In February 2015, NITC was re-listed on the same factual basis: (i) as before, NITC was listed for providing “financial support” to the Iranian government (now as a result of alleged links between its shareholders and the government); and (ii) now also for providing “logistical support” to the Iranian government through the transport of Iranian oil.
In September 2016, the General Court would not annul NITC’s re-listing because it said that although the EU had relied on the same facts, the new label of “logistical support” had meant that the issue want not res judicata (and did not breach the NITC’s legitimate expectations or the principles of legal certainty and effective remedies) because the Court had previously only considered “financial support” in relation to NITC (see previous blog). The Court of Justice has now dismissed NITC’s appeal against that judgment: C-600/16 P (29 November 2018). It rejected arguments that the Council’s re-labelled listing criterion could have been relied on before and that nothing had changed to justify the re-listing. Maya Lester QC acts for the NITC.
In January 2015, the EU General Court annulled Bank Tejarat’s initial designation because it could not establish that the bank had provided support for nuclear proliferation or assisted others in the breach/avoidance of sanctions (see previous blog). In April 2015, Bank Tejarat was re-listed for providing “significant support to the Government of Iran”, and for being “involved in the procurement of prohibited goods and technology”.
In March 2017, the General Court declined to annul Bank Tejarat’s re-listing because the Council had adequately shown that the bank had supported the Iranian government by offering financial resources and services for oil and gas development projects (see previous blog). The Court of Justice dismissed Bank Tejarat’s appeal against the re-listing: C-248/17 P (29 November 2018) for similar reasons as those given in the NITC case.
The EU General Court has allowed the Kurdistan Workers’ Party’s (PKK) application to annul its 2014 to 2017 terrorism sanctions listings – see judgment: T-316/14. The Court held that the EU had breached its obligation to state reasons because (in summary) a “significant” period of time (over 10 years) had elapsed since the adoption of the material justifying the PKK’s initial designation in 2002, of which was no longer sufficient in determining whether the PKK’s involvement in terrorist activities persisted at the time when the contested acts were adopted between 2014 and 2017.
In 2008, the PKK had successfully challenged its June 2002 terrorism sanctions listing before the EU Court (judgment: T-229/02), on the basis that the EU had again breached its obligation to state reasons.
In March and July 2018, the EU renewed the PKK’s terrorism sanctions listing in Council Implementing Regulation (EU) 2018/468 and Council Implementing Regulation (EU) 2018/1071. Those 2018 re-listings, were not addressed in this judgment so the PKK continues to remain on the EU terrorism sanctions list.
The EU General Court has upheld the 2016 and 2017 Egypt sanctions listings (targeting the misappropriation of state funds) of Suzanne Thabet, the wife of the former President Mubarak, their sons, Gamal Mubarak and Alaa Mubarak, and their sons’ wives, Khadiga El Gammal and Heidy Rasekh. See joined judgment: T-274/16 and T-275/16.
The Court did not accept the applicants’ arguments that there was no legal basis for their listings, that the Egyptian judicial proceedings did not respect their fundamental rights, and that the EU had infringed rights of the defence and the principle of proportionality. See EU Press Release.
The EU General Court has upheld Mohamed Mabrouk’s 2017 and 2018 renewed listings under the EU’s Tunisia sanctions, targeting those responsible for the misappropriation of Tunisian state funds – judgment here: T-216/17.
The Court rejected (inter alia) the applicant’s claim that the duration of the judicial proceedings in Tunisia (since the beginning of 2011) infringed his right to be tried within a reasonable time and that on account of its duration the freezing of his EU assets was now producing effects equivalent to a criminal penalty. In October 2017, the same Court rejected Mr Mabrouk’s application to annul his 2015 and 2016 Tunisia sanctions listings – see previous blog.
In March 2015, the EU Court of Justice dismissed the appeal brought by Ahmed Ezz and 3 of his spouses (Abla Salama, Khadiga Yassin and Shahinaz al Naggar) against the General Court’s judgment refusing to annul their initial listings on the EU’s Egypt misappropriation sanctions (see previous blog).
The General Court has now dismissed the applicants’ action to annul their 2015, 2016 and 2017 renewed designations – see Ezz and Others v Council T-288/15 (27 September 2018). The Court rejected the submission that the Council had erred in its assessment of the evidence relating to political and judicial developments that had occurred since their original designations in 2011 which sought to establish infringements by the Egyptian authorities of the rule of law and fundamental rights in legal proceedings in Egypt. The applicants are no longer subject to EU sanctions since March 2018 (see previous blog).
The EU General Court has dismissed Russian defence company Almaz-Antey’s application to annul its 2016-2017 listing under the EU’s sectoral sanctions on Russia – see judgment here (13 September). The same Court dismissed the company’s action against its 2015-2016 listing (see previous blog).
The Court held (inter alia) that the stated objective of the sanctions regime was to increase the costs of Russian acts undermining the territorial integrity, sovereignty and independence of Ukraine, and to promote a peaceful settlement of the crisis. That such an objective was consistent with the objective of maintaining peace and international security, in accordance with the EU’s external action objectives. Furthermore, with regard to the principle of proportionality, the importance of the objectives pursued had justified the possibility that, for certain operators, which were in no way responsible for the situation in Ukraine, the consequences may be negative, even significantly so. Consequently, interference with the Almaz-Antey’s freedom to conduct a business and the right to property could not be considered disproportionate in the circumstances.
Advocate General Sharpston has handed down a detailed opinion on the challenge by the Islamic Republic of Iran Shipping Lines (IRISL) and various entities said to be connected with IRISL, to the legal criteria for designation enacted by the EU in 2013.
The main issue was whether it was lawful for the EU to have introduced criteria permitting designation on the grounds of connection with IRISL after IRISL’s own listing had been annulled. The Advocate General considers that that criterion was unlawful, and that the General Court’s judgment on this point (see previous blog) should be overturned. She rejected all other grounds of appeal. The next step is the judgment of the Court of Justice.
The EU General Court has dismissed actions to annul the EU’s sanctions that relate to Russian banks and energy companies: DenizBank, Sberbank, VTB Bank, Vnesheconombank, PSC Prominvestbank, Rosneft, and Gazprom Neft. The Court held (in brief summary) that:
a. These measures (even though they are not the asset freeze provisions) are targeted sanctions to which the due process requirements (reasons etc) apply.
b. Those duties had been sufficiently complied with.
c. The measures were not incompatible with the EU-Russia Partnership Agreement or other trade agreements because they were justified by the EU’s security interests.
d. The measures were not an unjustified or disproportionate restriction on fundamental rights even though the operators they targeted had nothing to do with Russia’s actions in Ukraine.