EU can re-list on targeted sanctions measures with no new facts; NITC judgment

16/09/16

The General Court of the EU has handed down an interesting judgment on the ability of the EU institutions to re-list people and entities on the EU’s targeted asset freeze measures.  

The National Iranian Tanker Company had its EU listing annulled in July 2014, when the reasons given for its inclusion on the EU’s Iran sanctions were that it was“effectively controlled by the Iranian Government. Provides financial support to the Government of Iran through its shareholders which maintain ties with the Government”.  Although the EU Council did not appeal against that judgment, it re-listed NITC in 2015 on the grounds that it provides “logistical support” on the same factual basis.  The EU General Court has now rejected NITC’s application to annul that re-listing, saying that:

1. The EU Council may re-list an entity on the basis of the same facts as the first listing, and may re-list on the basis of facts or legal criteria it could have relied on for an initial listing.  

2. Although the Council was relying on the same facts, giving them the new label “logistical support” rather than “financial support” meant the issue was 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.

3. The Council was entitled to conclude (on the basis of the EU Court’s case law on the meaning of “support to the Government of Iran”) that NITC provides logistical support to the Iranian Government given the significance of its transport activities in the Iranian oil sector. 

4. The Court (unusually) approached rights of defence by saying that late disclosure of evidence would only justify annulment if a re-listing could not have been justified on the basis of the material which was disclosed in good time.  The Court found that the Council gave an unnecessary short deadline for NITC to submit observations, but that that had not prevented NITC from making its views known.

The judgment is here