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Corte di giustizia UEsentenza

Corte di giustizia UE n. 945/2015

ECLI:EU:C:2015:811
Testo integrale del provvedimento

Testo integrale del provvedimento

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

10 December 2015 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice — Restrictive measures taken against [OSCURATO:PERSONA] — List of persons and entities subject to the freezing of funds and economic resources — Inclusion of the appellant’s name — Admissibility — Period allowed for commencing proceedings — Point from which time starts to run — Manifest inadmissibility)

[OSCURATO:PERSONA] C‑153/15 P,

APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 30 March 2015,

[OSCURATO:PERSONA]. (NICO) [OSCURATO:PERSONA],

established in [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), represented by J. Grayston, Solicitor, P. Gjørtler, advokat, G. Pandey and D. Rovetta, avocats, and M. Gambardella, avvocato, appellant, the other party to the proceedings being: [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], represented by M. Bishop and

I. Rodios, acting as Agents, defendant at first instance,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of C. Toader, President of the [OSCURATO:PERSONA], A. Rosas (Rapporteur) and A. Prechal, Judges, [OSCURATO:PERSONA]: E. Sharpston, Registrar: A. [OSCURATO:PERSONA], having regard to the written procedure, having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, makes the following

[OSCURATO:PERSONA]

1 By its appeal, [OSCURATO:PERSONA]. (NICO) [OSCURATO:PERSONA] requests the [OSCURATO:PERSONA] to set aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 20 January 2015 in

NICO

v

[OSCURATO:PERSONA]

(T‑6/13, EU:T:2015:60; ‘the order under appeal’), by which the [OSCURATO:PERSONA] dismissed as manifestly inadmissible the appellant’s action for annulment in part of: – [OSCURATO:PERSONA] 2012/635/CFSP of 15 October 2012 amending [OSCURATO:PERSONA] 2010/413/CFSP concerning restrictive measures against [OSCURATO:PERSONA] (OJ 2012 L 282, p. 58; ‘the decision at issue’), and – [OSCURATO:PERSONA] (EU) No 945/2012 of 15 October 2012 implementing [OSCURATO:PERSONA] (EU) No 267/2012 concerning restrictive measures against [OSCURATO:PERSONA] (OJ 2012 L 282, p. 16; ‘the regulation at issue’, and, together, ‘the acts at issue’), in so far as the appellant’s name appears on the lists of the persons and entities to whom the restrictive measures decided upon under those acts apply. [OSCURATO:PERSONA] 102 of the Rules of Procedure of the [OSCURATO:PERSONA] 2 [OSCURATO:PERSONA] 102 of the Rules of Procedure of the [OSCURATO:PERSONA] of 2 May 1991, as amended on 24 May 2011 (OJ 2011 L 162, p. 18; ‘the Rules of Procedure of the [OSCURATO:PERSONA]’), is worded as follows: ‘1.

Where the period of time allowed for commencing proceedings against a measure adopted by an institution runs from the publication of that measure, that period shall be calculated, for the purposes of [OSCURATO:PERSONA] 101(1)(a), from the end of the 14th day after publication thereof in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] .

2. The prescribed time-limits shall be extended on account of distance by a single period of ten days.’ Background to the dispute 3 The appellant is established in [OSCURATO:PERSONA]. 4 On 26 July 2010, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] adopted [OSCURATO:PERSONA] 2010/413/CFSP concerning restrictive measures against [OSCURATO:PERSONA] and repealing [OSCURATO:PERSONA] 2007/140/CFSP (OJ 2010 L 195, p. 39).

Annex II to that decision lists the persons and entities — other than those designated by the [OSCURATO:PERSONA] or by the [OSCURATO:PERSONA] created by Resolution 1737 (2006), mentioned in Annex I to that decision — whose assets are to be frozen. 5 [OSCURATO:PERSONA] 24(1) to (3) of [OSCURATO:PERSONA] 2010/413, as amended by [OSCURATO:PERSONA] 2012/35/CFSP of 23 January 2012 (OJ 2012 L 19, p. 22), provides: ‘1.

Where the [OSCURATO:PERSONA] or the [OSCURATO:PERSONA] lists a person or entity, the [OSCURATO:PERSONA] shall include such person or entity in Annex I.

2. Where the [OSCURATO:PERSONA] decides to subject a person or entity to the measures referred to in Articles 19(1)(b) and (c) and 20(1)(b) and (c), it shall amend Annex II accordingly.

3. [OSCURATO:PERSONA] shall communicate its decision to the person or entity referred to in paragraphs 1 and 2, including the grounds for listing, either directly, if the address is known, or through the publication of a notice, providing such person or entity an opportunity to present observations.’ 6 On 23 March 2012, under the FEU Treaty, the [OSCURATO:PERSONA] adopted [OSCURATO:PERSONA] (EU) No 267/2012 concerning restrictive measures against [OSCURATO:PERSONA] and repealing [OSCURATO:PERSONA] (EU) No 961/2010 (OJ 2012 L 88, p. 1). 7 [OSCURATO:PERSONA] 46(1) to (3) of [OSCURATO:PERSONA] 267/2012, provides: ‘1.

Where the [OSCURATO:PERSONA] or the [OSCURATO:PERSONA] lists a natural or legal person, entity or body, the [OSCURATO:PERSONA] shall include such natural or legal person, entity or body in Annex VIII.

2. Where the [OSCURATO:PERSONA] decides to subject a natural or legal person, entity or body to the measures referred to in [OSCURATO:PERSONA] 23(2) and (3), it shall amend Annex IX accordingly.

3. [OSCURATO:PERSONA] shall communicate its decision, including the grounds for listing, to the natural or legal person, entity or body referred to in paragraph 1 or 2, either directly, if the address is known, or through the publication of a notice, providing such natural or legal person, entity or body with an opportunity to present observations.’ 8 [OSCURATO:PERSONA] 2 of the decision at issue states that ‘Annex II to [OSCURATO:PERSONA] 2010/413/CFSP shall be amended as set out in the Annex to this [OSCURATO:PERSONA]’.

Thus, by the decision at issue, the appellant’s name was added to the list in Annex II to [OSCURATO:PERSONA] 2010/413, as amended. [OSCURATO:PERSONA] heading I — ‘Persons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of [OSCURATO:PERSONA]’ — in Annex II to [OSCURATO:PERSONA] 2010/413, as amended, the appellant is mentioned at point 133 in Part B which lists the entities concerned. 9 The information and grounds for the appellant’s listing are as follows: ‘Name: [OSCURATO:PERSONA] information: [OSCURATO:PERSONA].

De la Tour-Haldimand 6, 1009 [OSCURATO:PERSONA], [OSCURATO:PERSONA]: Subsidiary (100%) of the [OSCURATO:PERSONA].

Date of listing: 16.10.2012’. 10 On the same date, the [OSCURATO:PERSONA] adopted the regulation at issue.

In accordance with [OSCURATO:PERSONA] 1 of that regulation, ‘Annex IX to [OSCURATO:PERSONA] ...

No 267/2012 shall be amended as set out in the Annex to this [OSCURATO:PERSONA]’.

Thus, by the regulation at issue, the appellant’s name was added to the list in Annex IX to [OSCURATO:PERSONA] 267/2012, as amended. [OSCURATO:PERSONA] heading I — ‘Persons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of [OSCURATO:PERSONA]’ — in Annex IX to [OSCURATO:PERSONA] 267/2012, as amended, the appellant is mentioned at point 133 in Part B which lists the ‘entities’.

The information and grounds in relation to the appellant’s listing in the regulation at issue are identical to those contained in the decision at issue. 11 On 16 October 2012, the [OSCURATO:PERSONA] also published the Notice for the attention of the person to which the restrictive measures provided for in [OSCURATO:PERSONA] 2010/413, as implemented by [OSCURATO:PERSONA] 2012/635, and in [OSCURATO:PERSONA] 267/2012, as implemented by [OSCURATO:PERSONA] 945/2012 concerning restrictive measures against [OSCURATO:PERSONA] apply (OJ 2012 C 312, p. 21).

The order under appeal 12 Pursuant to [OSCURATO:PERSONA] 64 of the Rules of Procedure of the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] adopted a measure of organisation of procedure requesting the parties to answer questions relating, inter alia, to the admissibility of the action brought by the appellant.

The parties lodged their written replies on 6 October 2014. 13 In paragraph 13 of the order under appeal, the [OSCURATO:PERSONA] considered that there was sufficient information in the documents before it and decided, pursuant to [OSCURATO:PERSONA] 111 of its Rules of Procedure, to give a decision on the action without taking further steps in the proceedings. 14 After having recalled the time-limit for bringing an action for annulment laid down in the sixth paragraph of [OSCURATO:PERSONA] 263 TFEU, the [OSCURATO:PERSONA] made the following findings: ‘16 In the present case, the [OSCURATO:PERSONA] sent a letter to the applicant notifying it of the [acts at issue] on 16 October 2012.

That letter was received by the applicant on 19 October 2012, as is apparent from the acknowledgement of receipt produced by the [OSCURATO:PERSONA].

This is undisputed by the applicant. 17 It must therefore be found that the [acts at issue] were communicated directly to the applicant on 19 October 2012.

As the period for bringing proceedings began to run on that date, and taking into account the extension of ten days on account of distance provided for in [OSCURATO:PERSONA] 102(2) of the Rules of Procedure [of the [OSCURATO:PERSONA]], it expired on 31 December 201[2], that is to say before the lodging of the application for annulment on 8 January 2013. ’ 15 The appellant maintained before the [OSCURATO:PERSONA] that it was not time-barred, and put forward the following three arguments. 16 In the first place, it claimed that the publication of the acts at issue in the L-series of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] constituted a fundamental condition of their entry into force, so that the period within which the persons and entities concerned by those acts could bring proceedings did not start to run until the date of such publication and could not be reduced as a result of the individual notification of those acts. 17 In paragraphs 24 and 25 of the order under appeal, the [OSCURATO:PERSONA] recalled paragraphs 57 and 58 of the judgment in Gbagbo and Others v

[OSCURATO:PERSONA]

(C‑478/11 P to C‑482/11 P, EU:C:2013:258).

In paragraph 26 of the order under appeal, it recalled paragraph 59 of that judgment, in which it is stated that while, admittedly, the entry into force of measures such as the acts at issue is effected by their publication, the period for the bringing of an action for the annulment of those measures under the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU runs, for each of the persons and entities whose names are listed in the annexes to those measures, from the date of the communication which they must receive. 18 In the second place, the appellant claimed that when the communication of the grounds for inclusion is carried out by means of the publication of a notice in the C-series of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] , the period for bringing proceedings runs from the date of that publication and cannot be reduced as a result of an individual notification.

According to the appellant, in so far as the acts at issue were published in the C-series of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 16 October 2012, the period allowed for commencing proceedings did not expire until 9 January 2013, since both [OSCURATO:PERSONA] 102(1) of the Rules of Procedure of the [OSCURATO:PERSONA] relating to the 14-day publication period and [OSCURATO:PERSONA] 102(2) of those rules of procedure relating to the 10-day extension on account of distance were applicable.

It thus took the view that the [OSCURATO:PERSONA] could not rule that the time-limit for bringing proceedings began to run from receipt of the individual notification on 19 October 2012, expiring on 31 December 201[2], as only the aforementioned [OSCURATO:PERSONA] 102(2), relating to the 10-day extension on account of distance, was applicable. 19 In paragraph 29 of the order under appeal, the [OSCURATO:PERSONA] held that the [OSCURATO:PERSONA] is not free to choose arbitrarily the means of communication of acts imposing restrictive measures on a person or entity, but is obliged, in principle, to communicate them directly to those persons.

It is only if it is not possible to communicate directly that it may discharge its communication obligation by publishing a notice in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] .

To take a different approach would, de facto , allow the [OSCURATO:PERSONA] a convenient means of evading its obligation to effect individual communication. [OSCURATO:PERSONA] referred, to that effect, to the judgments in Gbagbo and Others v

[OSCURATO:PERSONA]

(C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 61);

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(T‑157/13, EU:T:2014:606, paragraph 38); and [OSCURATO:PERSONA] of Technology v

[OSCURATO:PERSONA]

(T‑181/13, EU:T:2014:607, paragraph 31). 20 In paragraph 30 of the order under appeal, the [OSCURATO:PERSONA] noted that, therefore, ‘when the [OSCURATO:PERSONA] is able to communicate the listing measures directly to the persons and entities concerned, the period for the bringing of an action cannot begin to run from the date of the indirect communication of those measures through the publication of a notice in the [OSCURATO:PERSONA] [of the [OSCURATO:PERSONA]] without infringing the right of those persons and entities to effective judicial protection’.

It also observed, in paragraph 32 of that order, that the strict application of procedural rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice. 21 [OSCURATO:PERSONA] concluded, in paragraph 33 of the order under appeal, that ‘the fact that some of the restrictive measures were published immediately in a notice in the [OSCURATO:PERSONA] [of the [OSCURATO:PERSONA]] cannot confer procedural rights on the persons and entities concerned to whom those measures were already communicated individually, and cannot enable them to choose the starting point of the period for bringing proceedings by opting for the date of the publication of the notice, increased by fourteen days, in accordance with [OSCURATO:PERSONA] 102(1) of the Rules of Procedure [of the [OSCURATO:PERSONA]]’. 22 By its third argument, the appellant requested, in the alternative, leave to bring proceedings out of time because of the legal uncertainty regarding calculation of the time-limit for bringing proceedings when the action was brought. [OSCURATO:PERSONA] had created confusion by communicating the acts at issue individually and at the same time publishing a notice in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] . 23 [OSCURATO:PERSONA] considered, however, that the appellant had not invoked nor, therefore, established the existence of unforeseeable circumstances or force majeure which would have prevented it from bringing its action in good time. 24 It noted, in paragraph 37 of the order under appeal, that ‘the obligation to communicate the listing measures directly to the persons and entities concerned had clearly been demonstrated by the [OSCURATO:PERSONA] of Justice in paragraphs 47 and 52 of the judgment ... in

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(C‑548/09 P, EU:C:2011:735)’.

In paragraph 40 of that order, the [OSCURATO:PERSONA] noted in that context that ‘it was expressly stated in the [OSCURATO:PERSONA]’s letter of 16 October 2012 that its purpose was to notify the applicant of the restrictive measures adopted in its regard’. [OSCURATO:PERSONA] also held that, in addition and in any event, even if in doubt, it was for the appellant to proceed with prudence and diligence following receipt of the [OSCURATO:PERSONA]’s letter of 16 October 2012, and to accept 19 October 2012 as the starting point of the period for bringing proceedings, in order to protect itself against the risk of the action being brought out of time. 25 In paragraph 41 of the order under appeal, the [OSCURATO:PERSONA] considered that ‘the immediate publication of a notice in the [OSCURATO:PERSONA] [of the [OSCURATO:PERSONA]] , at the same time as the notification of the [acts at issue] to the applicant, was not such as to create confusion, thus preventing the applicant from understanding that, by its letter of 16 October 2012, the [OSCURATO:PERSONA] directly communicated to the applicant its decision to include it on the list of persons and entities in Annex II to [OSCURATO:PERSONA] 2010/413 and in Annex IX to [OSCURATO:PERSONA] 267/2012, as expressly stated in that letter.

Furthermore, the applicant could be misled even less, as regards the nature of that letter, by the publication of the notice, since the [acts at issue] were not concerned solely with the applicant, but also concerned other persons and entities without ties to the applicant’.

Form of order sought on appeal 26 The appellant claims that the [OSCURATO:PERSONA] should: – set aside the order under appeal and declare the action for annulment to be admissible; – refer the case back to the [OSCURATO:PERSONA]; and – order the [OSCURATO:PERSONA] to pay the costs of the present appeal proceedings. 27 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should dismiss the appeal and order the appellant to pay the costs.

The appeal 28 The appellant puts forward two grounds of appeal.

By the first ground, it submits that the [OSCURATO:PERSONA] made manifest errors of assessment by holding, first, that a complete individual notification took place on 19 October 2012, and, secondly, that this notification occurred prior to the publication of a general notice of notification in the C-series of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 16 October 2012.

By the second ground of appeal, it submits that the [OSCURATO:PERSONA] made errors of law, first, by failing to take into account the requirement that a notification must include a statement of reasons; secondly, by holding that an individual notification could have the effect of shortening the time-limit for a judicial challenge to a legal act of the [OSCURATO:PERSONA]; thirdly, by disregarding the legal consequences of the choices made by the [OSCURATO:PERSONA] in relation to the notification procedure; and, fourthly, by failing to take into account the legitimate understanding of the law at the time of the application. 29 [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal in whole or in part, and it may do so without opening the oral procedure. 30 It is appropriate to make use of that power in this case.

The first ground of appeal 31 By the first argument of the first ground of appeal, the appellant takes issue, first of all, with paragraphs 13, 16 and 17 of the order under appeal.

It submits that the court file does not contain anything to show that copies of the acts at issue were annexed to the letter of 16 October 2012, received by the appellant on 19 October 2012.

By failing to verify this, the [OSCURATO:PERSONA] failed to fulfil its obligation to check of its own motion that the time-limit for bringing an action had been complied with. 32 It must be noted in that regard that the appellant annexed to the application for annulment submitted to the [OSCURATO:PERSONA] a copy of the [OSCURATO:PERSONA]’s letter of 16 October 2012, which stated the following: ‘A copy of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] including your company on the abovementioned list is enclosed herewith’.

It is not apparent, however, from the appellant’s written pleadings before the [OSCURATO:PERSONA] that the appellant had claimed that annexes to that letter of 16 October 2012 were missing. 33 A party cannot, in principle, put forward for the first time before the [OSCURATO:PERSONA] of Justice a plea in law which it has not raised before the [OSCURATO:PERSONA], because that would amount to allowing the [OSCURATO:PERSONA] of Justice to review the legality of the findings of the [OSCURATO:PERSONA] in the light of pleas which the latter did not have occasion to hear and determine (judgment in Germany v Commission , C‑544/09 P, EU:C:2011:584, paragraph 63). 34 It follows that the first argument of the first ground of appeal is manifestly inadmissible. 35 By the second argument of the first ground of appeal, the appellant takes issue with paragraph 20 of the order under appeal, which is worded as follows: ‘20 Secondly, the applicant claims that when the communication of the grounds for the inclusion has been carried out by means of the publication of a notice in the C-series of the [OSCURATO:PERSONA] [of the [OSCURATO:PERSONA]] , the period for bringing proceedings begins to run on the date of that publication and cannot be reduced by an earlier individual notification. ’ 36 The appellant submits that the first event was the publication on 16 October 2012 of the acts at issue, the second, the publication of the notice in the C-series of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 16 October 2012, and the third, the receipt of the [OSCURATO:PERSONA]’s letter on 19 October 2012. 37 In that regard it is sufficient to note that paragraph 20 of the order under appeal is a summary of the argument which the appellant put forward in paragraph 5(ii) of its reply to the [OSCURATO:PERSONA] questions, lodged on 6 October 2014.

It should be noted that the appellant does not dispute one element of the [OSCURATO:PERSONA] reasoning which led to the decision as to the inadmissibility of the application submitted to it, with the result that the second argument put forward by the appellant in its appeal is ineffective. 38 It follows from these points that the first ground of appeal is, in part, manifestly inadmissible and, in part, manifestly unfounded.

The second ground of appeal 39 This ground of appeal is in four parts. 40 By the first part of the second ground of appeal, the appellant submits that the [OSCURATO:PERSONA] made an error of law in finding that the [OSCURATO:PERSONA] had notified the acts at issue to the appellant by the letter of 19 October 2012, when that letter did not contain a statement of reasons.

It notes that, under [OSCURATO:PERSONA] 46(3) of [OSCURATO:PERSONA] 267/2012, ‘the [OSCURATO:PERSONA] shall communicate its decision, including the grounds for listing …’. 41 It must be noted in that regard, as the [OSCURATO:PERSONA] submits, that the letter of 16 October 2012 addressed to the appellant expressly stated that ‘the grounds for your designation appear in the relevant entries in those Annexes’. 42 Inasmuch as the appellant criticises the insufficiency of the statement of reasons, it must be held that that argument concerns the legality of the acts at issue, not the question of the inadmissibility of the action on account of its lateness which the [OSCURATO:PERSONA] addressed in the order under appeal.

It follows that that argument, which does not relate to the order under appeal, is ineffective. 43 By the second part of the second ground of appeal, the appellant argues that the [OSCURATO:PERSONA] erred in law in holding that the notification to a person of an EU act which has also been published in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] may have the effect of shortening the time-limit for bringing an action against that act.

It takes the view that, according to the [OSCURATO:PERSONA] interpretation of the judgments in

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(C‑548/09 P, EU:C:2011:735) and Gbagbo and Others v

[OSCURATO:PERSONA]

(C‑478/11 P to C‑482/11 P, EU:C:2013:258), the principles of legal certainty and of the right to effective judicial protection which guarantee that legal remedies are effective are not enhanced but diminished by the fact that legal effects are conferred upon the notification of an EU act which has also been published.

By the third part of the same ground, the appellant submits that, by publishing a notice concerning the acts at issue in the C-series of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 16 October 2012, the [OSCURATO:PERSONA] necessarily accepted that the time-limit for bringing judicial proceedings in respect of those acts expired only after the end of the period of two months laid down in the sixth paragraph of [OSCURATO:PERSONA] 263 TFEU, the starting point of which had to be determined pursuant to [OSCURATO:PERSONA] 102(1) and (2) of the Rules of Procedure of the [OSCURATO:PERSONA].

Accordingly, that time-limit would have started to run only from the end of the 14th day following publication in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] , in accordance with paragraph 1 of that provision, and had to be increased by an extension on account of distance of 10 days, pursuant to paragraph 2 of that provision.

Those two parts of the second ground of appeal, which both relate to the determination of the starting point of the period allowed for bringing an action, must be examined together. 44 As the [OSCURATO:PERSONA] recalled in paragraph 47 of the judgment in

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(C‑548/09 P, EU:C:2011:735), the principle of effective judicial protection means that the EU authority which adopts an act imposing restrictive measures against a person or entity is bound to communicate the grounds on which it is based, so far as possible, either when that act is adopted or, at the very least, as swiftly as possible after it has been adopted, in order to enable those persons or entities to exercise their right to bring an action. 45 It is for the purpose of complying with that principle that [OSCURATO:PERSONA] 24(3) of [OSCURATO:PERSONA] 2010/413 and [OSCURATO:PERSONA] 46(3) of [OSCURATO:PERSONA] 267/2012 provide that the [OSCURATO:PERSONA] is to communicate to the natural or legal person, entity or body concerned its decision to include them on a list of persons or entities subject to restrictive measures, including the grounds for listing, either directly, if the address is known, or through the publication of a notice, providing such natural or legal person, entity or body with an opportunity to present observations. 46 [OSCURATO:PERSONA] added, in paragraphs 50 to 52 of the judgment in

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(C‑548/09 P, EU:C:2011:735), that if the communication of individual and specific reasons could be regarded as accomplished through publication of the decision in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] , it is difficult to imagine why express reference is made to such communication, since that decision must be published in any event. [OSCURATO:PERSONA] is required to communicate a decision individually in order to satisfy its obligation. 47 In paragraph 58 of the judgment in Gbagbo and Others v

[OSCURATO:PERSONA]

(C‑478/11 P to C‑482/11 P, EU:C:2013:258), the [OSCURATO:PERSONA] held that, having regard to the individual nature of the measures by which persons or entities are entered on the lists of persons or entities to whom restrictive measures are to apply, the sixth paragraph of [OSCURATO:PERSONA] 263 TFEU would not be applied consistently if, when applied to those persons and those entities, the starting point for the calculation of the period for bringing an action for annulment was fixed as the date of publication of the measure at issue and not as the date when that measure was communicated to them.

The purpose of that communication is precisely to ensure that persons to whom the measures are addressed are able to defend their rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in their applying to the EU judicature (judgment in Kadi and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Commission , C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 337). 48 In paragraph 59 of the judgment in Gbagbo and Others v

[OSCURATO:PERSONA]

(C‑478/11 P to C‑482/11 P, EU:C:2013:258), the [OSCURATO:PERSONA] concluded that, while the entry into force of acts imposing restrictive measures on persons or entities is effected by their publication, the period for the bringing of an action for the annulment of those acts under the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU runs, for each of those persons and entities, from the date of the communication which they must receive. 49 It follows from [OSCURATO:PERSONA] 24(3) of [OSCURATO:PERSONA] 2010/413 and [OSCURATO:PERSONA] 46(3) of [OSCURATO:PERSONA] 267/2012, referred to in paragraph 45 of the present order and interpreted in the light of the judgments in

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(C‑548/09 P, EU:C:2011:735) and Gbagbo and Others v

[OSCURATO:PERSONA]

(C‑478/11 P to C‑482/11 P, EU:C:2013:258), that where the address of a person or entity subject to restrictive measures is known to the [OSCURATO:PERSONA], the latter must send it an individual communication, and it is the receipt of that communication that causes the period for the bringing of an action for annulment to run. 50 [OSCURATO:PERSONA] did not therefore err in law in ruling, in paragraph 29 of the order under appeal, that the [OSCURATO:PERSONA] is not free to choose arbitrarily the means of communication to the persons concerned of acts imposing restrictive measures.

Similarly, it correctly held, in paragraph 33 of that order, that the fact that some of the restrictive measures were published immediately in a notice in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] cannot enable the persons and entities concerned, to whom those measures were already communicated individually, to choose the starting point of the period for bringing proceedings by opting for the date of the publication of the notice, increased by 14 days, in accordance with [OSCURATO:PERSONA] 102(1) of the Rules of Procedure of the [OSCURATO:PERSONA]. 51 The periods prescribed for instituting proceedings are mandatory and are not subject to the discretion of the parties (judgment in Muller-Collignon v Commission , 4/67, EU:C:1967:51, p. 372).

The rules in that respect must be applied by the [OSCURATO:PERSONA] in such a way as to safeguard legal certainty and equality of persons before the law (judgment in PKK and KNK v

[OSCURATO:PERSONA]

, C‑229/05 P, EU:C:2007:32, paragraph 101). 52 In the present case, the appellant’s address appeared both in the decision at issue and in the regulation at issue.

It follows that the restrictive measures concerning the appellant had to be communicated to it individually, the receipt of such communication causing the period for the bringing of an action for annulment of those measures to run.

The appellant is thus wrong to take the view that the period for bringing an action against those measures began to run from the end of the 14th day following the publication of the general notification notice in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. 53 Consequently, contrary to the appellant’s submissions, the individual communication had the effect not of shortening the period for bringing an action for annulment, but of causing it to run as regards the appellant.

Furthermore, the effective legal remedies are not diminished by an individual notification which, unlike the publication of a general notification notice in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] , gives greater assurance that the person or entity subject to restrictive measures has been made aware of the acts imposing those measures. 54 It follows that the [OSCURATO:PERSONA] did not err in law in finding, in paragraph 34 of the order under appeal, that since the acts at issue had been communicated directly to the appellant, the period for bringing an action began to run, in the appellant’s case, from the date of receipt of that communication. 55 By the fourth part of the second ground of appeal, submitted in the alternative, the appellant submits that should the [OSCURATO:PERSONA] rule, in accordance with its case-law, that the date of receipt of the letter of 19 October 2012 is to be regarded as the point of departure for the calculation of the deadline for bringing an action against the acts at issue, it would have to be held that, at the material time, the case-law that could lead to such a conclusion had not yet been issued by the [OSCURATO:PERSONA].

It submits in particular that the judgment in Gbagbo and Others v

[OSCURATO:PERSONA]

(C‑478/11 P to C‑482/11 P, EU:C:2013:258) was not delivered until 23 April 2013, that is after the action for annulment was lodged on 8 January 2013.

The doubt as to the application of the rules for calculating the time-limit for bringing proceedings had led the appellant to make an excusable error. 56 In that regard, the [OSCURATO:PERSONA] did not err in law when it pointed out, in paragraph 35 of the order under appeal, that, according to the second paragraph of [OSCURATO:PERSONA] 45 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], ‘no right shall be prejudiced in consequence of the expiry of a time-limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure ’, and that it is for the party concerned to establish, first, that abnormal circumstances, unforeseeable and outside his control, made it impossible for him to comply with the time-limit for bringing proceedings laid down in the sixth paragraph of [OSCURATO:PERSONA] 263 TFEU and, secondly, that he could not guard against the consequences of those circumstances by taking appropriate steps without making unreasonable sacrifices. 57 Nor did the [OSCURATO:PERSONA] err in law in paragraph 36 of that order when it found that, in the present case, the appellant had not invoked any particular circumstance which was such as to prevent it from bringing its action in a timely manner. 58 In any event, as the [OSCURATO:PERSONA] recalled in paragraph 37 of the order under appeal, the obligation to communicate the listing measures directly to the persons and entities concerned had clearly been demonstrated by the [OSCURATO:PERSONA] of Justice in paragraphs 47 and 52 of the judgment in

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(C‑548/09 P, ECR, EU:C:2011:735) in relation to the right to effective judicial protection. The judgment in Gbagbo and Others v

[OSCURATO:PERSONA]

(C‑478/11 P to C‑482/11 P, EU:C:2013:258) merely confirmed that case-law. 59 That obligation was, moreover, expressly laid down in [OSCURATO:PERSONA] 24(3) of [OSCURATO:PERSONA] 2010/413 and in [OSCURATO:PERSONA] 46(3) of [OSCURATO:PERSONA] 267/2012, which made clear that where the address of a person or entity subject to restrictive measures is known to the [OSCURATO:PERSONA], the latter must send it an individual communication.

As is evident from the information concerning the appellant contained in the acts at issue, the appellant’s address was referred to therein and was therefore known to the [OSCURATO:PERSONA]. 60 The appellant could not therefore have been in any doubt as to the fact that the acts at issue concerning it had to be brought to its attention by an individual communication and that it was the receipt of that communication that would start time running for the purposes of the prescribed time-limit for bringing proceedings. 61 [OSCURATO:PERSONA] thus correctly held that the acts at issue had been brought to the appellant’s attention by an individual communication, the date of receipt of which was the starting point for the period allowed for bringing proceedings against those acts laid down by the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU. 62 It follows from all of these considerations that the second ground of appeal is manifestly unfounded. 63 The appeal must therefore be dismissed in its entirety.

Costs 64 [OSCURATO:PERSONA] 137 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, which applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. 65 [OSCURATO:PERSONA] 138(1) of those rules, which applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 66 Since the [OSCURATO:PERSONA] has applied for costs and [OSCURATO:PERSONA]. (NICO) [OSCURATO:PERSONA] has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the [OSCURATO:PERSONA].

On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders:

1. The appeal is dismissed.

2. [OSCURATO:PERSONA]. (NICO) [OSCURATO:PERSONA] shall bear its own costs and shall pay those incurred by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. [Signatures] * Language of the case: English.

Anonimizzato ex art. 52 D.Lgs. 196/2003
[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 10 December 2015 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice — Restrictive measures taken against [OSCURATO:PERSONA] — List of persons and entities subject to the freezing of funds and economic resources — Inclusion of the appellant’s name — Admissibility — Period allowed for commencing proceedings — Point from which time starts to run — Manifest inadmissibility) [OSCURATO:PERSONA] C‑153/15 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 30 March 2015, [OSCURATO:PERSONA]. (NICO) [OSCURATO:PERSONA], established in [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), represented by J. Grayston, Solicitor, P. Gjørtler, advokat, G. Pandey and D. Rovetta, avocats, and M. Gambardella, avvocato, appellant, the other party to the proceedings being: [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], represented by M. Bishop and I. Rodios, acting as Agents, defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of C. Toader, President of the [OSCURATO:PERSONA], A. Rosas (Rapporteur) and A. Prechal, Judges, [OSCURATO:PERSONA]: E. Sharpston, Registrar: A. [OSCURATO:PERSONA], having regard to the written procedure, having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, makes the following [OSCURATO:PERSONA] 1 By its appeal, [OSCURATO:PERSONA]. (NICO) [OSCURATO:PERSONA] requests the [OSCURATO:PERSONA] to set aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 20 January 2015 in NICO v [OSCURATO:PERSONA] (T‑6/13, EU:T:2015:60; ‘the order under appeal’), by which the [OSCURATO:PERSONA] dismissed as manifestly inadmissible the appellant’s action for annulment in part of: –      [OSCURATO:PERSONA] 2012/635/CFSP of 15 October 2012 amending [OSCURATO:PERSONA] 2010/413/CFSP concerning restrictive measures against [OSCURATO:PERSONA] (OJ 2012 L 282, p. 58; ‘the decision at issue’), and –      [OSCURATO:PERSONA] (EU) No 945/2012 of 15 October 2012 implementing [OSCURATO:PERSONA] (EU) No 267/2012 concerning restrictive measures against [OSCURATO:PERSONA] (OJ 2012 L 282, p. 16; ‘the regulation at issue’, and, together, ‘the acts at issue’), in so far as the appellant’s name appears on the lists of the persons and entities to whom the restrictive measures decided upon under those acts apply. [OSCURATO:PERSONA] 102 of the Rules of Procedure of the [OSCURATO:PERSONA] 2 [OSCURATO:PERSONA] 102 of the Rules of Procedure of the [OSCURATO:PERSONA] of 2 May 1991, as amended on 24 May 2011 (OJ 2011 L 162, p. 18; ‘the Rules of Procedure of the [OSCURATO:PERSONA]’), is worded as follows: ‘1.      Where the period of time allowed for commencing proceedings against a measure adopted by an institution runs from the publication of that measure, that period shall be calculated, for the purposes of [OSCURATO:PERSONA] 101(1)(a), from the end of the 14th day after publication thereof in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] . 2.       The prescribed time-limits shall be extended on account of distance by a single period of ten days.’ Background to the dispute 3 The appellant is established in [OSCURATO:PERSONA]. 4 On 26 July 2010, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] adopted [OSCURATO:PERSONA] 2010/413/CFSP concerning restrictive measures against [OSCURATO:PERSONA] and repealing [OSCURATO:PERSONA] 2007/140/CFSP (OJ 2010 L 195, p. 39). Annex II to that decision lists the persons and entities — other than those designated by the [OSCURATO:PERSONA] or by the [OSCURATO:PERSONA] created by Resolution 1737 (2006), mentioned in Annex I to that decision — whose assets are to be frozen. 5 [OSCURATO:PERSONA] 24(1) to (3) of [OSCURATO:PERSONA] 2010/413, as amended by [OSCURATO:PERSONA] 2012/35/CFSP of 23 January 2012 (OJ 2012 L 19, p. 22), provides: ‘1.       Where the [OSCURATO:PERSONA] or the [OSCURATO:PERSONA] lists a person or entity, the [OSCURATO:PERSONA] shall include such person or entity in Annex I. 2.       Where the [OSCURATO:PERSONA] decides to subject a person or entity to the measures referred to in Articles 19(1)(b) and (c) and 20(1)(b) and (c), it shall amend Annex II accordingly. 3.       [OSCURATO:PERSONA] shall communicate its decision to the person or entity referred to in paragraphs 1 and 2, including the grounds for listing, either directly, if the address is known, or through the publication of a notice, providing such person or entity an opportunity to present observations.’ 6 On 23 March 2012, under the FEU Treaty, the [OSCURATO:PERSONA] adopted [OSCURATO:PERSONA] (EU) No 267/2012 concerning restrictive measures against [OSCURATO:PERSONA] and repealing [OSCURATO:PERSONA] (EU) No 961/2010 (OJ 2012 L 88, p. 1). 7 [OSCURATO:PERSONA] 46(1) to (3) of [OSCURATO:PERSONA] 267/2012, provides: ‘1.                Where the [OSCURATO:PERSONA] or the [OSCURATO:PERSONA] lists a natural or legal person, entity or body, the [OSCURATO:PERSONA] shall include such natural or legal person, entity or body in Annex VIII. 2.       Where the [OSCURATO:PERSONA] decides to subject a natural or legal person, entity or body to the measures referred to in [OSCURATO:PERSONA] 23(2) and (3), it shall amend Annex IX accordingly. 3.       [OSCURATO:PERSONA] shall communicate its decision, including the grounds for listing, to the natural or legal person, entity or body referred to in paragraph 1 or 2, either directly, if the address is known, or through the publication of a notice, providing such natural or legal person, entity or body with an opportunity to present observations.’ 8 [OSCURATO:PERSONA] 2 of the decision at issue states that ‘Annex II to [OSCURATO:PERSONA] 2010/413/CFSP shall be amended as set out in the Annex to this [OSCURATO:PERSONA]’. Thus, by the decision at issue, the appellant’s name was added to the list in Annex II to [OSCURATO:PERSONA] 2010/413, as amended. [OSCURATO:PERSONA] heading I — ‘Persons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of [OSCURATO:PERSONA]’ — in Annex II to [OSCURATO:PERSONA] 2010/413, as amended, the appellant is mentioned at point 133 in Part B which lists the entities concerned. 9 The information and grounds for the appellant’s listing are as follows: ‘Name: [OSCURATO:PERSONA] information: [OSCURATO:PERSONA]. De la Tour-Haldimand 6, 1009 [OSCURATO:PERSONA], [OSCURATO:PERSONA]: Subsidiary (100%) of the [OSCURATO:PERSONA]. Date of listing: 16.10.2012’. 10 On the same date, the [OSCURATO:PERSONA] adopted the regulation at issue. In accordance with [OSCURATO:PERSONA] 1 of that regulation, ‘Annex IX to [OSCURATO:PERSONA] ... No 267/2012 shall be amended as set out in the Annex to this [OSCURATO:PERSONA]’. Thus, by the regulation at issue, the appellant’s name was added to the list in Annex IX to [OSCURATO:PERSONA] 267/2012, as amended. [OSCURATO:PERSONA] heading I — ‘Persons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of [OSCURATO:PERSONA]’ — in Annex IX to [OSCURATO:PERSONA] 267/2012, as amended, the appellant is mentioned at point 133 in Part B which lists the ‘entities’. The information and grounds in relation to the appellant’s listing in the regulation at issue are identical to those contained in the decision at issue. 11 On 16 October 2012, the [OSCURATO:PERSONA] also published the Notice for the attention of the person to which the restrictive measures provided for in [OSCURATO:PERSONA] 2010/413, as implemented by [OSCURATO:PERSONA] 2012/635, and in [OSCURATO:PERSONA] 267/2012, as implemented by [OSCURATO:PERSONA] 945/2012 concerning restrictive measures against [OSCURATO:PERSONA] apply (OJ 2012 C 312, p. 21). The order under appeal 12 Pursuant to [OSCURATO:PERSONA] 64 of the Rules of Procedure of the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] adopted a measure of organisation of procedure requesting the parties to answer questions relating, inter alia, to the admissibility of the action brought by the appellant. The parties lodged their written replies on 6 October 2014. 13 In paragraph 13 of the order under appeal, the [OSCURATO:PERSONA] considered that there was sufficient information in the documents before it and decided, pursuant to [OSCURATO:PERSONA] 111 of its Rules of Procedure, to give a decision on the action without taking further steps in the proceedings. 14 After having recalled the time-limit for bringing an action for annulment laid down in the sixth paragraph of [OSCURATO:PERSONA] 263 TFEU, the [OSCURATO:PERSONA] made the following findings: ‘16      In the present case, the [OSCURATO:PERSONA] sent a letter to the applicant notifying it of the [acts at issue] on 16 October 2012. That letter was received by the applicant on 19 October 2012, as is apparent from the acknowledgement of receipt produced by the [OSCURATO:PERSONA]. This is undisputed by the applicant. 17      It must therefore be found that the [acts at issue] were communicated directly to the applicant on 19 October 2012. As the period for bringing proceedings began to run on that date, and taking into account the extension of ten days on account of distance provided for in [OSCURATO:PERSONA] 102(2) of the Rules of Procedure [of the [OSCURATO:PERSONA]], it expired on 31 December 201[2], that is to say before the lodging of the application for annulment on 8 January 2013. ’ 15 The appellant maintained before the [OSCURATO:PERSONA] that it was not time-barred, and put forward the following three arguments. 16 In the first place, it claimed that the publication of the acts at issue in the L-series of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] constituted a fundamental condition of their entry into force, so that the period within which the persons and entities concerned by those acts could bring proceedings did not start to run until the date of such publication and could not be reduced as a result of the individual notification of those acts. 17 In paragraphs 24 and 25 of the order under appeal, the [OSCURATO:PERSONA] recalled paragraphs 57 and 58 of the judgment in Gbagbo and Others v [OSCURATO:PERSONA] (C‑478/11 P to C‑482/11 P, EU:C:2013:258). In paragraph 26 of the order under appeal, it recalled paragraph 59 of that judgment, in which it is stated that while, admittedly, the entry into force of measures such as the acts at issue is effected by their publication, the period for the bringing of an action for the annulment of those measures under the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU runs, for each of the persons and entities whose names are listed in the annexes to those measures, from the date of the communication which they must receive. 18 In the second place, the appellant claimed that when the communication of the grounds for inclusion is carried out by means of the publication of a notice in the C-series of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] , the period for bringing proceedings runs from the date of that publication and cannot be reduced as a result of an individual notification. According to the appellant, in so far as the acts at issue were published in the C-series of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 16 October 2012, the period allowed for commencing proceedings did not expire until 9 January 2013, since both [OSCURATO:PERSONA] 102(1) of the Rules of Procedure of the [OSCURATO:PERSONA] relating to the 14-day publication period and [OSCURATO:PERSONA] 102(2) of those rules of procedure relating to the 10-day extension on account of distance were applicable. It thus took the view that the [OSCURATO:PERSONA] could not rule that the time-limit for bringing proceedings began to run from receipt of the individual notification on 19 October 2012, expiring on 31 December 201[2], as only the aforementioned [OSCURATO:PERSONA] 102(2), relating to the 10-day extension on account of distance, was applicable. 19 In paragraph 29 of the order under appeal, the [OSCURATO:PERSONA] held that the [OSCURATO:PERSONA] is not free to choose arbitrarily the means of communication of acts imposing restrictive measures on a person or entity, but is obliged, in principle, to communicate them directly to those persons. It is only if it is not possible to communicate directly that it may discharge its communication obligation by publishing a notice in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] . To take a different approach would, de facto , allow the [OSCURATO:PERSONA] a convenient means of evading its obligation to effect individual communication. [OSCURATO:PERSONA] referred, to that effect, to the judgments in Gbagbo and Others v [OSCURATO:PERSONA] (C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 61); [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑157/13, EU:T:2014:606, paragraph 38); and [OSCURATO:PERSONA] of Technology v [OSCURATO:PERSONA] (T‑181/13, EU:T:2014:607, paragraph 31). 20 In paragraph 30 of the order under appeal, the [OSCURATO:PERSONA] noted that, therefore, ‘when the [OSCURATO:PERSONA] is able to communicate the listing measures directly to the persons and entities concerned, the period for the bringing of an action cannot begin to run from the date of the indirect communication of those measures through the publication of a notice in the [OSCURATO:PERSONA] [of the [OSCURATO:PERSONA]] without infringing the right of those persons and entities to effective judicial protection’. It also observed, in paragraph 32 of that order, that the strict application of procedural rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice. 21 [OSCURATO:PERSONA] concluded, in paragraph 33 of the order under appeal, that ‘the fact that some of the restrictive measures were published immediately in a notice in the [OSCURATO:PERSONA] [of the [OSCURATO:PERSONA]] cannot confer procedural rights on the persons and entities concerned to whom those measures were already communicated individually, and cannot enable them to choose the starting point of the period for bringing proceedings by opting for the date of the publication of the notice, increased by fourteen days, in accordance with [OSCURATO:PERSONA] 102(1) of the Rules of Procedure [of the [OSCURATO:PERSONA]]’. 22 By its third argument, the appellant requested, in the alternative, leave to bring proceedings out of time because of the legal uncertainty regarding calculation of the time-limit for bringing proceedings when the action was brought. [OSCURATO:PERSONA] had created confusion by communicating the acts at issue individually and at the same time publishing a notice in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] . 23 [OSCURATO:PERSONA] considered, however, that the appellant had not invoked nor, therefore, established the existence of unforeseeable circumstances or force majeure which would have prevented it from bringing its action in good time. 24 It noted, in paragraph 37 of the order under appeal, that ‘the obligation to communicate the listing measures directly to the persons and entities concerned had clearly been demonstrated by the [OSCURATO:PERSONA] of Justice in paragraphs 47 and 52 of the judgment ... in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (C‑548/09 P, EU:C:2011:735)’. In paragraph 40 of that order, the [OSCURATO:PERSONA] noted in that context that ‘it was expressly stated in the [OSCURATO:PERSONA]’s letter of 16 October 2012 that its purpose was to notify the applicant of the restrictive measures adopted in its regard’. [OSCURATO:PERSONA] also held that, in addition and in any event, even if in doubt, it was for the appellant to proceed with prudence and diligence following receipt of the [OSCURATO:PERSONA]’s letter of 16 October 2012, and to accept 19 October 2012 as the starting point of the period for bringing proceedings, in order to protect itself against the risk of the action being brought out of time. 25 In paragraph 41 of the order under appeal, the [OSCURATO:PERSONA] considered that ‘the immediate publication of a notice in the [OSCURATO:PERSONA] [of the [OSCURATO:PERSONA]] , at the same time as the notification of the [acts at issue] to the applicant, was not such as to create confusion, thus preventing the applicant from understanding that, by its letter of 16 October 2012, the [OSCURATO:PERSONA] directly communicated to the applicant its decision to include it on the list of persons and entities in Annex II to [OSCURATO:PERSONA] 2010/413 and in Annex IX to [OSCURATO:PERSONA] 267/2012, as expressly stated in that letter. Furthermore, the applicant could be misled even less, as regards the nature of that letter, by the publication of the notice, since the [acts at issue] were not concerned solely with the applicant, but also concerned other persons and entities without ties to the applicant’. Form of order sought on appeal 26 The appellant claims that the [OSCURATO:PERSONA] should: –        set aside the order under appeal and declare the action for annulment to be admissible; –        refer the case back to the [OSCURATO:PERSONA]; and –        order the [OSCURATO:PERSONA] to pay the costs of the present appeal proceedings. 27 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should dismiss the appeal and order the appellant to pay the costs. The appeal 28 The appellant puts forward two grounds of appeal. By the first ground, it submits that the [OSCURATO:PERSONA] made manifest errors of assessment by holding, first, that a complete individual notification took place on 19 October 2012, and, secondly, that this notification occurred prior to the publication of a general notice of notification in the C-series of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 16 October 2012. By the second ground of appeal, it submits that the [OSCURATO:PERSONA] made errors of law, first, by failing to take into account the requirement that a notification must include a statement of reasons; secondly, by holding that an individual notification could have the effect of shortening the time-limit for a judicial challenge to a legal act of the [OSCURATO:PERSONA]; thirdly, by disregarding the legal consequences of the choices made by the [OSCURATO:PERSONA] in relation to the notification procedure; and, fourthly, by failing to take into account the legitimate understanding of the law at the time of the application. 29 [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal in whole or in part, and it may do so without opening the oral procedure. 30 It is appropriate to make use of that power in this case. The first ground of appeal 31 By the first argument of the first ground of appeal, the appellant takes issue, first of all, with paragraphs 13, 16 and 17 of the order under appeal. It submits that the court file does not contain anything to show that copies of the acts at issue were annexed to the letter of 16 October 2012, received by the appellant on 19 October 2012. By failing to verify this, the [OSCURATO:PERSONA] failed to fulfil its obligation to check of its own motion that the time-limit for bringing an action had been complied with. 32 It must be noted in that regard that the appellant annexed to the application for annulment submitted to the [OSCURATO:PERSONA] a copy of the [OSCURATO:PERSONA]’s letter of 16 October 2012, which stated the following: ‘A copy of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] including your company on the abovementioned list is enclosed herewith’. It is not apparent, however, from the appellant’s written pleadings before the [OSCURATO:PERSONA] that the appellant had claimed that annexes to that letter of 16 October 2012 were missing. 33 A party cannot, in principle, put forward for the first time before the [OSCURATO:PERSONA] of Justice a plea in law which it has not raised before the [OSCURATO:PERSONA], because that would amount to allowing the [OSCURATO:PERSONA] of Justice to review the legality of the findings of the [OSCURATO:PERSONA] in the light of pleas which the latter did not have occasion to hear and determine (judgment in Germany v Commission , C‑544/09 P, EU:C:2011:584, paragraph 63). 34 It follows that the first argument of the first ground of appeal is manifestly inadmissible. 35 By the second argument of the first ground of appeal, the appellant takes issue with paragraph 20 of the order under appeal, which is worded as follows: ‘20      Secondly, the applicant claims that when the communication of the grounds for the inclusion has been carried out by means of the publication of a notice in the C-series of the [OSCURATO:PERSONA] [of the [OSCURATO:PERSONA]] , the period for bringing proceedings begins to run on the date of that publication and cannot be reduced by an earlier individual notification. ’ 36 The appellant submits that the first event was the publication on 16 October 2012 of the acts at issue, the second, the publication of the notice in the C-series of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 16 October 2012, and the third, the receipt of the [OSCURATO:PERSONA]’s letter on 19 October 2012. 37 In that regard it is sufficient to note that paragraph 20 of the order under appeal is a summary of the argument which the appellant put forward in paragraph 5(ii) of its reply to the [OSCURATO:PERSONA] questions, lodged on 6 October 2014. It should be noted that the appellant does not dispute one element of the [OSCURATO:PERSONA] reasoning which led to the decision as to the inadmissibility of the application submitted to it, with the result that the second argument put forward by the appellant in its appeal is ineffective. 38 It follows from these points that the first ground of appeal is, in part, manifestly inadmissible and, in part, manifestly unfounded. The second ground of appeal 39 This ground of appeal is in four parts. 40 By the first part of the second ground of appeal, the appellant submits that the [OSCURATO:PERSONA] made an error of law in finding that the [OSCURATO:PERSONA] had notified the acts at issue to the appellant by the letter of 19 October 2012, when that letter did not contain a statement of reasons. It notes that, under [OSCURATO:PERSONA] 46(3) of [OSCURATO:PERSONA] 267/2012, ‘the [OSCURATO:PERSONA] shall communicate its decision, including the grounds for listing …’. 41 It must be noted in that regard, as the [OSCURATO:PERSONA] submits, that the letter of 16 October 2012 addressed to the appellant expressly stated that ‘the grounds for your designation appear in the relevant entries in those Annexes’. 42 Inasmuch as the appellant criticises the insufficiency of the statement of reasons, it must be held that that argument concerns the legality of the acts at issue, not the question of the inadmissibility of the action on account of its lateness which the [OSCURATO:PERSONA] addressed in the order under appeal. It follows that that argument, which does not relate to the order under appeal, is ineffective. 43 By the second part of the second ground of appeal, the appellant argues that the [OSCURATO:PERSONA] erred in law in holding that the notification to a person of an EU act which has also been published in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] may have the effect of shortening the time-limit for bringing an action against that act. It takes the view that, according to the [OSCURATO:PERSONA] interpretation of the judgments in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (C‑548/09 P, EU:C:2011:735) and Gbagbo and Others v [OSCURATO:PERSONA] (C‑478/11 P to C‑482/11 P, EU:C:2013:258), the principles of legal certainty and of the right to effective judicial protection which guarantee that legal remedies are effective are not enhanced but diminished by the fact that legal effects are conferred upon the notification of an EU act which has also been published. By the third part of the same ground, the appellant submits that, by publishing a notice concerning the acts at issue in the C-series of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 16 October 2012, the [OSCURATO:PERSONA] necessarily accepted that the time-limit for bringing judicial proceedings in respect of those acts expired only after the end of the period of two months laid down in the sixth paragraph of [OSCURATO:PERSONA] 263 TFEU, the starting point of which had to be determined pursuant to [OSCURATO:PERSONA] 102(1) and (2) of the Rules of Procedure of the [OSCURATO:PERSONA]. Accordingly, that time-limit would have started to run only from the end of the 14th day following publication in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] , in accordance with paragraph 1 of that provision, and had to be increased by an extension on account of distance of 10 days, pursuant to paragraph 2 of that provision. Those two parts of the second ground of appeal, which both relate to the determination of the starting point of the period allowed for bringing an action, must be examined together. 44 As the [OSCURATO:PERSONA] recalled in paragraph 47 of the judgment in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (C‑548/09 P, EU:C:2011:735), the principle of effective judicial protection means that the EU authority which adopts an act imposing restrictive measures against a person or entity is bound to communicate the grounds on which it is based, so far as possible, either when that act is adopted or, at the very least, as swiftly as possible after it has been adopted, in order to enable those persons or entities to exercise their right to bring an action. 45 It is for the purpose of complying with that principle that [OSCURATO:PERSONA] 24(3) of [OSCURATO:PERSONA] 2010/413 and [OSCURATO:PERSONA] 46(3) of [OSCURATO:PERSONA] 267/2012 provide that the [OSCURATO:PERSONA] is to communicate to the natural or legal person, entity or body concerned its decision to include them on a list of persons or entities subject to restrictive measures, including the grounds for listing, either directly, if the address is known, or through the publication of a notice, providing such natural or legal person, entity or body with an opportunity to present observations. 46 [OSCURATO:PERSONA] added, in paragraphs 50 to 52 of the judgment in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (C‑548/09 P, EU:C:2011:735), that if the communication of individual and specific reasons could be regarded as accomplished through publication of the decision in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] , it is difficult to imagine why express reference is made to such communication, since that decision must be published in any event. [OSCURATO:PERSONA] is required to communicate a decision individually in order to satisfy its obligation. 47 In paragraph 58 of the judgment in Gbagbo and Others v [OSCURATO:PERSONA] (C‑478/11 P to C‑482/11 P, EU:C:2013:258), the [OSCURATO:PERSONA] held that, having regard to the individual nature of the measures by which persons or entities are entered on the lists of persons or entities to whom restrictive measures are to apply, the sixth paragraph of [OSCURATO:PERSONA] 263 TFEU would not be applied consistently if, when applied to those persons and those entities, the starting point for the calculation of the period for bringing an action for annulment was fixed as the date of publication of the measure at issue and not as the date when that measure was communicated to them. The purpose of that communication is precisely to ensure that persons to whom the measures are addressed are able to defend their rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in their applying to the EU judicature (judgment in Kadi and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Commission , C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 337). 48 In paragraph 59 of the judgment in Gbagbo and Others v [OSCURATO:PERSONA] (C‑478/11 P to C‑482/11 P, EU:C:2013:258), the [OSCURATO:PERSONA] concluded that, while the entry into force of acts imposing restrictive measures on persons or entities is effected by their publication, the period for the bringing of an action for the annulment of those acts under the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU runs, for each of those persons and entities, from the date of the communication which they must receive. 49 It follows from [OSCURATO:PERSONA] 24(3) of [OSCURATO:PERSONA] 2010/413 and [OSCURATO:PERSONA] 46(3) of [OSCURATO:PERSONA] 267/2012, referred to in paragraph 45 of the present order and interpreted in the light of the judgments in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (C‑548/09 P, EU:C:2011:735) and Gbagbo and Others v [OSCURATO:PERSONA] (C‑478/11 P to C‑482/11 P, EU:C:2013:258), that where the address of a person or entity subject to restrictive measures is known to the [OSCURATO:PERSONA], the latter must send it an individual communication, and it is the receipt of that communication that causes the period for the bringing of an action for annulment to run. 50 [OSCURATO:PERSONA] did not therefore err in law in ruling, in paragraph 29 of the order under appeal, that the [OSCURATO:PERSONA] is not free to choose arbitrarily the means of communication to the persons concerned of acts imposing restrictive measures. Similarly, it correctly held, in paragraph 33 of that order, that the fact that some of the restrictive measures were published immediately in a notice in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] cannot enable the persons and entities concerned, to whom those measures were already communicated individually, to choose the starting point of the period for bringing proceedings by opting for the date of the publication of the notice, increased by 14 days, in accordance with [OSCURATO:PERSONA] 102(1) of the Rules of Procedure of the [OSCURATO:PERSONA]. 51 The periods prescribed for instituting proceedings are mandatory and are not subject to the discretion of the parties (judgment in Muller-Collignon v Commission , 4/67, EU:C:1967:51, p. 372). The rules in that respect must be applied by the [OSCURATO:PERSONA] in such a way as to safeguard legal certainty and equality of persons before the law (judgment in PKK and KNK v [OSCURATO:PERSONA] , C‑229/05 P, EU:C:2007:32, paragraph 101). 52 In the present case, the appellant’s address appeared both in the decision at issue and in the regulation at issue. It follows that the restrictive measures concerning the appellant had to be communicated to it individually, the receipt of such communication causing the period for the bringing of an action for annulment of those measures to run. The appellant is thus wrong to take the view that the period for bringing an action against those measures began to run from the end of the 14th day following the publication of the general notification notice in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. 53 Consequently, contrary to the appellant’s submissions, the individual communication had the effect not of shortening the period for bringing an action for annulment, but of causing it to run as regards the appellant. Furthermore, the effective legal remedies are not diminished by an individual notification which, unlike the publication of a general notification notice in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] , gives greater assurance that the person or entity subject to restrictive measures has been made aware of the acts imposing those measures. 54 It follows that the [OSCURATO:PERSONA] did not err in law in finding, in paragraph 34 of the order under appeal, that since the acts at issue had been communicated directly to the appellant, the period for bringing an action began to run, in the appellant’s case, from the date of receipt of that communication. 55 By the fourth part of the second ground of appeal, submitted in the alternative, the appellant submits that should the [OSCURATO:PERSONA] rule, in accordance with its case-law, that the date of receipt of the letter of 19 October 2012 is to be regarded as the point of departure for the calculation of the deadline for bringing an action against the acts at issue, it would have to be held that, at the material time, the case-law that could lead to such a conclusion had not yet been issued by the [OSCURATO:PERSONA]. It submits in particular that the judgment in Gbagbo and Others v [OSCURATO:PERSONA] (C‑478/11 P to C‑482/11 P, EU:C:2013:258) was not delivered until 23 April 2013, that is after the action for annulment was lodged on 8 January 2013. The doubt as to the application of the rules for calculating the time-limit for bringing proceedings had led the appellant to make an excusable error. 56 In that regard, the [OSCURATO:PERSONA] did not err in law when it pointed out, in paragraph 35 of the order under appeal, that, according to the second paragraph of [OSCURATO:PERSONA] 45 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], ‘no right shall be prejudiced in consequence of the expiry of a time-limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure ’, and that it is for the party concerned to establish, first, that abnormal circumstances, unforeseeable and outside his control, made it impossible for him to comply with the time-limit for bringing proceedings laid down in the sixth paragraph of [OSCURATO:PERSONA] 263 TFEU and, secondly, that he could not guard against the consequences of those circumstances by taking appropriate steps without making unreasonable sacrifices. 57 Nor did the [OSCURATO:PERSONA] err in law in paragraph 36 of that order when it found that, in the present case, the appellant had not invoked any particular circumstance which was such as to prevent it from bringing its action in a timely manner. 58 In any event, as the [OSCURATO:PERSONA] recalled in paragraph 37 of the order under appeal, the obligation to communicate the listing measures directly to the persons and entities concerned had clearly been demonstrated by the [OSCURATO:PERSONA] of Justice in paragraphs 47 and 52 of the judgment in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (C‑548/09 P, ECR, EU:C:2011:735) in relation to the right to effective judicial protection. The judgment in Gbagbo and Others v [OSCURATO:PERSONA] (C‑478/11 P to C‑482/11 P, EU:C:2013:258) merely confirmed that case-law. 59 That obligation was, moreover, expressly laid down in [OSCURATO:PERSONA] 24(3) of [OSCURATO:PERSONA] 2010/413 and in [OSCURATO:PERSONA] 46(3) of [OSCURATO:PERSONA] 267/2012, which made clear that where the address of a person or entity subject to restrictive measures is known to the [OSCURATO:PERSONA], the latter must send it an individual communication. As is evident from the information concerning the appellant contained in the acts at issue, the appellant’s address was referred to therein and was therefore known to the [OSCURATO:PERSONA]. 60 The appellant could not therefore have been in any doubt as to the fact that the acts at issue concerning it had to be brought to its attention by an individual communication and that it was the receipt of that communication that would start time running for the purposes of the prescribed time-limit for bringing proceedings. 61 [OSCURATO:PERSONA] thus correctly held that the acts at issue had been brought to the appellant’s attention by an individual communication, the date of receipt of which was the starting point for the period allowed for bringing proceedings against those acts laid down by the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU. 62 It follows from all of these considerations that the second ground of appeal is manifestly unfounded. 63 The appeal must therefore be dismissed in its entirety. Costs 64 [OSCURATO:PERSONA] 137 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, which applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. 65 [OSCURATO:PERSONA] 138(1) of those rules, which applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 66 Since the [OSCURATO:PERSONA] has applied for costs and [OSCURATO:PERSONA]. (NICO) [OSCURATO:PERSONA] has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the [OSCURATO:PERSONA]. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. [OSCURATO:PERSONA]. (NICO) [OSCURATO:PERSONA] shall bear its own costs and shall pay those incurred by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. [Signatures] * Language of the case: English.
Sentenza Corte di giustizia UE n. 945/2015 — Fons Iuris — Fons Iuris