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Corte di giustizia UEsentenza

Corte di giustizia UE n. 54/2019

ECLI:EU:T:2019:337
Testo integrale del provvedimento

Testo integrale del provvedimento

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

16 May 2019 ( * ) (Non-contractual liability — [OSCURATO:PERSONA] foreign and security policy — Restrictive measures against [OSCURATO:PERSONA] — Freezing of funds — Restriction on admission to the territory of the [OSCURATO:PERSONA] — Compensation for the damage allegedly sustained by the applicant following its inclusion and re-inclusion in the list of persons and entities subject to the restrictive measures at issue — Sufficiently serious breach of a rule of law conferring rights on individuals)

[OSCURATO:PERSONA] T‑37/17,

[OSCURATO:PERSONA],

established in Tehran ([OSCURATO:PERSONA]), represented by S. Zaiwalla, P. Reddy, K. Mittal, A. Meskarian, Solicitors, T. Otty QC, R. Blakeley,

V. Zaiwalla, H. Leith, Barristers, and T. de la Mare QC, applicant, v [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], represented by M. Bishop and A. Vitro, acting as Agents, defendant, supported by

[OSCURATO:PERSONA],

represented by L. Havas and J. Norris, acting as Agents, intervener, APPLICATION based on [OSCURATO:PERSONA] 268 TFEU for compensation for the damage allegedly sustained by the applicant as a result of [OSCURATO:PERSONA] (EU) No 54/2012 of 23 January 2012 implementing [OSCURATO:PERSONA] (EU) No 961/2010 on restrictive measures against [OSCURATO:PERSONA] (OJ 2012 L 19, p. 1), [OSCURATO:PERSONA] (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against [OSCURATO:PERSONA] and repealing [OSCURATO:PERSONA] (EU) No 961/2010 (OJ 2012 L 88, p. 1), and [OSCURATO:PERSONA] (EU) No 709/2012 of 2 August 2012 implementing [OSCURATO:PERSONA] 267/2012 (OJ 2012 L 208, p. 2),

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

composed of M. [OSCURATO:PERSONA], [OSCURATO:PERSONA], F. [OSCURATO:PERSONA] (Rapporteur) and M.J. [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: F. Oller, Administrator, having regard to the written part of the procedure and further to the hearing on 5 December 2018, gives the following [OSCURATO:PERSONA] to the dispute 1 The present case has been brought in connection with the restrictive measures introduced in order to apply pressure on the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] to end proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems. 2 The applicant, [OSCURATO:PERSONA], is an [OSCURATO:PERSONA] bank. 3 The applicant’s name was included in the list of designated persons and entities in Annex II to [OSCURATO:PERSONA] 2010/413/CFSP of 26 July 2010 concerning restrictive measures against [OSCURATO:PERSONA] and repealing [OSCURATO:PERSONA] 2007/140/CFSP (OJ 2010 L 195, p. 39), by [OSCURATO:PERSONA] 2012/35/CFSP of 23 January 2012 amending [OSCURATO:PERSONA] 2010/413 (OJ 2012 L 19, p. 22) and, consequently, in Annex VIII to [OSCURATO:PERSONA] (EU) No 961/2010 of 25 October 2010 on restrictive measures against [OSCURATO:PERSONA] and repealing [OSCURATO:PERSONA] (EC) No 423/2007 (OJ 2010 L 281, p. 1), by [OSCURATO:PERSONA] (EU) No 54/2012 of 23 January 2012 implementing [OSCURATO:PERSONA] 961/2010 (OJ 2012 L 19, p. 1). 4 Subsequently, the applicant’s name was included in the list of the designated persons and entities in Annex IX to [OSCURATO:PERSONA] (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against [OSCURATO:PERSONA] and repealing [OSCURATO:PERSONA] 961/2010 (OJ 2012 L 88, p. 1), and in Annex II to [OSCURATO:PERSONA] (EU) No 709/2012 of 2 August 2012 implementing [OSCURATO:PERSONA] 267/2012 (OJ 2012 L 208, p. 2). 5 The restrictive measures mentioned in paragraphs 3 and 4 above are referred to below as ‘the initial listing acts’. 6 Those listings had the effect of freezing all the funds and economic resources held by the applicant within the [OSCURATO:PERSONA]. 7 [OSCURATO:PERSONA] 2012/35, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] stated the following reasons in support of the applicant’s designation: ‘[OSCURATO:PERSONA] is a State-owned bank.

It has directly facilitated [OSCURATO:PERSONA]’s nuclear efforts.

For example, in 2011, [OSCURATO:PERSONA] facilitated the movement of tens of millions of dollars in an effort to assist the UN [[OSCURATO:PERSONA]] designated [OSCURATO:PERSONA] of [OSCURATO:PERSONA]’s ongoing effort to acquire yellowcake uranium.

The AEOI is the main [OSCURATO:PERSONA] organisation for research and development of nuclear technology, and manages fissile material production programs. [OSCURATO:PERSONA] also has a history of assisting designated [OSCURATO:PERSONA] banks in circumventing international sanctions, for example acting in business involving UN designated [OSCURATO:PERSONA] cover companies.

Through its financial services to EU designated [OSCURATO:PERSONA] and [OSCURATO:PERSONA] of [OSCURATO:PERSONA] (EDBI) in the past few years, [OSCURATO:PERSONA] has also supported the activities of subsidiaries and subordinates of the [OSCURATO:PERSONA], UN designated [OSCURATO:PERSONA] and UN designated Modafl.’ 8 By application lodged at the [OSCURATO:PERSONA] on 16 April 2012, the applicant brought an action for annulment of [OSCURATO:PERSONA] 2012/35, [OSCURATO:PERSONA] 54/2012, [OSCURATO:PERSONA] 267/2012 and [OSCURATO:PERSONA] 709/2012, in so far as those acts concerned it. 9 By judgment of 22 January 2015,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(T‑176/12, not published, EU:T:2015:43), the [OSCURATO:PERSONA] annulled the acts mentioned in paragraph 8 above in so far as they concerned the applicant, on the ground that the [OSCURATO:PERSONA] had not proven that the applicant had provided support for nuclear proliferation or assisted other persons and entities to infringe or avoid restrictive measures to which they were subject.

As no appeal was brought against that judgment, it became final and acquired the force of res judicata. 10 By the adoption of [OSCURATO:PERSONA] (CFSP) 2015/556 of 7 April 2015 amending [OSCURATO:PERSONA] 2010/413 (OJ 2015 L 92, p. 101) and of [OSCURATO:PERSONA] (EU) 2015/549 of 7 April 2015 implementing [OSCURATO:PERSONA] 267/2012 (OJ 2015 L 92, p. 12), the [OSCURATO:PERSONA] re-included the applicant’s name in the list of designated persons and entities, providing a new statement of reasons: ‘[OSCURATO:PERSONA] provides significant support to the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] by offering financial resources and financing services for oil and gas development projects.

The oil and gas sector constitutes a significant source of funding for the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and several projects financed by [OSCURATO:PERSONA] are carried out by subsidiaries of entities owned and controlled by the [OSCURATO:PERSONA] of [OSCURATO:PERSONA].

In addition, [OSCURATO:PERSONA] remains partly owned by and closely linked to the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] which is therefore in a position to influence [OSCURATO:PERSONA] decisions, including its involvement in the financing of projects regarded by the [OSCURATO:PERSONA] as a high priority.

Furthermore, as [OSCURATO:PERSONA] provides financing to various crude oil productions and refining projects which necessarily require the acquisition of key equipment and technology for those sectors whose supply for use in [OSCURATO:PERSONA] is prohibited, [OSCURATO:PERSONA] can be identified as being involved in the procurement of prohibited goods and technology.’ 11 By application lodged at the [OSCURATO:PERSONA] on 18 June 2015, the applicant sought the annulment of the measures re-including it in the list of designated persons and entities. 12 By judgment of 14 March 2017,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(T‑346/15, not published, EU:T:2017:164), the [OSCURATO:PERSONA] dismissed the action brought by the applicant, thereby confirming the legality of the decision taken by the [OSCURATO:PERSONA] to re-list the applicant on the basis of the grounds set out in paragraph 10 above. 13 The applicant was, therefore, subject to the restrictive measures at issue for three years.

It was then re-included in the list of the designated persons and entities, from the period from 7 April 2015 to 16 January 2016, that is until the date of implementation of the [OSCURATO:PERSONA] of Action (JCPOA) concluded with the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] in July 2015, which lifted the [OSCURATO:PERSONA] restrictive measures against the applicant.

Procedure and forms of order sought 14 By application lodged at the [OSCURATO:PERSONA] on 23 January 2017, the applicant brought the present action. 15 [OSCURATO:PERSONA] lodged the defence on 26 April 2017. 16 By document lodged at the [OSCURATO:PERSONA] on 12 May 2017, the [OSCURATO:PERSONA] sought leave to intervene in the present proceedings in support of the form of order sought by the [OSCURATO:PERSONA]. 17 On 22 May 2017, the [OSCURATO:PERSONA] submitted its observations on the application for leave to intervene. 18 By decision of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 June 2017, the [OSCURATO:PERSONA] was granted leave to intervene in support of the form of order sought by the [OSCURATO:PERSONA]. 19 On 19 June 2017, the applicant lodged the reply. 20 On 26 July 2017, the [OSCURATO:PERSONA] lodged its statement in intervention. 21 On 28 July 2017, the [OSCURATO:PERSONA] lodged the rejoinder. 22 On 6 September 2017, the applicant lodged its observations on the statement in intervention and requested the [OSCURATO:PERSONA], by letter dated the same day, to adopt measures of organisation of procedure to split the present proceedings into two phases, a liability phase and a quantum phase. 23 By letters of 22 September 2017, the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] lodged their observations on the application for measures of organisation of procedure. 24 By decision of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 11 June 2018, the present case was assigned to a new Judge-Rapporteur, sitting in the [OSCURATO:PERSONA]. 25 On a proposal from the Judge-Rapporteur, the [OSCURATO:PERSONA] decided to open the oral part of the procedure. 26 The parties presented oral argument and answered questions put to them by the [OSCURATO:PERSONA] at the hearing on 5 December 2018, during which the applicant was asked what conclusions had to be drawn from the judgment of 29 November 2018,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(C‑248/17 P, EU:C:2018:967), a judgment in which the [OSCURATO:PERSONA] of Justice dismissed the appeal brought against the judgment of 14 March 2017,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(T‑346/15, not published, EU:T:2017:164).

In the light of the applicant’s response, the [OSCURATO:PERSONA] requested it to produce a document containing the amendments to its heads of claim and a fresh assessment of the damage sustained further to those amendments. 27 By letter lodged at the [OSCURATO:PERSONA] on 2 January 2019, the applicant complied with that request. 28 By measure of organisation of procedure dated 11 January 2019, the applicant was requested to submit its observations on the [OSCURATO:PERSONA]’s argument, made during the hearing, that the [OSCURATO:PERSONA] does not have jurisdiction to rule in the present action for damages as far as it concerns [OSCURATO:PERSONA] 2010/413 and its versions as amended by successive decisions. 29 By letter lodged at the [OSCURATO:PERSONA] on 28 January 2019, the applicant submitted its observations, in which it stated that the present action for damages was based on [OSCURATO:PERSONA] 54/2012, No 267/2012 and No 709/2012 ([OSCURATO:PERSONA] 54/2012, No 267/2012 and No 709/2012 hereinafter being referred to collectively as ‘the acts at issue’). 30 By letters lodged at the [OSCURATO:PERSONA] on 28 January 2019, the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] lodged their observations on the applicant’s replies of 2 January 2019. 31 The oral part of the procedure was closed on 5 February 2019. 32 The applicant claims that the [OSCURATO:PERSONA] should: – order the [OSCURATO:PERSONA] to pay the following sums to it: – 399 880 000 [OSCURATO:PERSONA] dollars (USD), being EUR 349 695 249.54 at the prevailing exchange rate on 2 January 2019, in respect of material damage; – interest on the damage sustained by the applicant, up until the date of the [OSCURATO:PERSONA]’s judgment from the date at which it was sustained, at the [OSCURATO:PERSONA] (ECB) main refinancing rate plus two per cent per annum, amounting to USD 42 403 569.77 (EUR 37 081 352.43) at 2 January 2019, and at a ‘daily rate of USD 21 911.23 (EUR 19 160.74)’ as from 3 January 2019 until judgment, or, alternatively at such rate and for such period as the [OSCURATO:PERSONA] thinks fit; – EUR 1 000 000 in respect of non-material damage; – post-judgment interest on the sums in the foregoing sub-indents at ECB main refinancing rate plus two per cent per annum until the date of payment or, in the alternative, at such rate and for such period as the [OSCURATO:PERSONA] thinks fit; – order the [OSCURATO:PERSONA] to pay the costs. 33 [OSCURATO:PERSONA], supported by the [OSCURATO:PERSONA], contends that the [OSCURATO:PERSONA] should: – dismiss the action; – order the applicant to pay the costs.

Law 34 The applicant submits that the adoption of the restrictive measures at issue caused it both material and non-material damage, for which it seeks compensation.

The period covered by that claim encompasses the period between 23 January 2012, the date on which the initial listing act was adopted, and 6 April 2015, the day before the applicant’s name was re-included in the list of designated persons and entities. 35 [OSCURATO:PERSONA], supported by the [OSCURATO:PERSONA], disputes the applicant’s arguments. 36 In order for the [OSCURATO:PERSONA] to incur non-contractual liability under the second paragraph of [OSCURATO:PERSONA] 340 TFEU for unlawful conduct of its institutions or bodies, a number of conditions must be satisfied: the conduct of the EU institution or body must be unlawful, actual damage must have been sustained and there must be a causal link between the conduct complained of and the damage pleaded (see judgment of 25 November 2014,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, T‑384/11, EU:T:2014:986, paragraph 47 and the case-law cited). 37 The cumulative nature of those three conditions governing the establishment of non-contractual liability means that, if one of them is not satisfied, the action for damages must be dismissed in its entirety, and there is no need to examine the other conditions (see judgment of 25 November 2014,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, T‑384/11, EU:T:2014:986, paragraph 48 and the case-law cited). 38 It is, therefore, necessary to ascertain, in the present case, whether the applicant has discharged the burden of proving the unlawfulness of the conduct against the [OSCURATO:PERSONA] that it alleges, in connection with the adoption of the acts at issue, that it has actually sustained the material and non-material damage stemming from those acts which it claims, and that there is a causal link between that adoption and the damage which it alleges. 39 With regard to the unlawfulness of the [OSCURATO:PERSONA]’s conduct complained of, the applicant submits in essence that, in the light of the judgment of 22 January 2015,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(T‑176/12, not published, EU:T:2015:43), it is apparent that the [OSCURATO:PERSONA] committed an unlawful act by entering and maintaining its name in the list of designated persons and entities, even though its decisions were not based on any evidence of the applicant’s participation in nuclear proliferation. 40 In addition, the applicant submits that the adoption of the acts at issue infringes a rule of law intended to confer rights upon individuals, namely the right not to be subject to unlawful sanctions adopted without any supporting evidence. 41 According to the applicant, which refers to the judgment of 25 November 2014,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(T‑384/11, EU:T:20l4:986, paragraphs 57 and 58), the [OSCURATO:PERSONA]’s decision to enter or maintain a person’s name in the list of designated persons and entities although it does not have any information or evidence which substantiates the restrictive measures at issue to the requisite legal standard constitutes a sufficiently serious breach of the provisions at issue. 42 The applicant further submits that the [OSCURATO:PERSONA] cannot contend that the provisions which it infringed were vague, ambiguous or unclear because, when the acts at issue were adopted, it was clear that the [OSCURATO:PERSONA] had to provide evidence supporting the restrictive measures which it adopted. 43 [OSCURATO:PERSONA] disputes the applicant’s arguments. 44 According to settled case-law, a finding that a legal act of the [OSCURATO:PERSONA] is illegal, made for example in the context of an action for annulment, regrettable as it may be, is not a sufficient basis for holding that the non-contractual liability of the [OSCURATO:PERSONA], flowing from illegal conduct on the part of one of its institutions, has automatically arisen.

In order for that condition to be met, the case-law requires the applicant to demonstrate, first, that the institution in question has not merely infringed a rule of law, but that the infringement is sufficiently serious and that the rule of law was intended to confer rights on individuals (see judgment of 4 July 2000, Bergaderm and Goupil v

[OSCURATO:PERSONA]

, C‑352/98 P, EU:C:2000:361, paragraph 42 and the case-law cited). 45 Furthermore, the requirement for proof of a sufficiently serious breach is intended to avoid, in the field inter alia of restrictive measures, the institution concerned being obstructed in the exercise of the functions which it is responsible for carrying out, in the general interest of the [OSCURATO:PERSONA] and its [OSCURATO:PERSONA], by the risk of ultimately having to bear losses which the persons concerned by its acts might potentially suffer, without however leaving those individuals to bear the consequences, be they financial or non-material, of flagrant and inexcusable misconduct on the part of the institution concerned (see, to that effect, judgments of 11 July 2007,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, T‑351/03, EU:T:2007:212, paragraph 125; of 23 November 2011,

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v

[OSCURATO:PERSONA]

, T‑341/07, EU:T:2011:687, paragraph 34; and of 25 November 2014,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, T‑384/11, EU:T:2014:986, paragraph 51). 46 According to the case-law, the wider objective of maintaining peace and international security, in accordance with the objectives of the [OSCURATO:PERSONA] external action stated in [OSCURATO:PERSONA] 21 TEU, is such as to justify negative consequences for economic operators — even significant negative consequences — arising from decisions implementing acts adopted by the [OSCURATO:PERSONA] with a view to achieving that fundamental objective (see, to that effect, judgment of 28 March 2017, Rosneft , C‑72/15, EU:C:2017:236, paragraph 150 and the case-law cited). 47 Thus, in assessing the conduct of the institution concerned, the [OSCURATO:PERSONA], hearing an action for damages brought by an economic operator, is also required, having regard in particular to [OSCURATO:PERSONA] 215(2) TFEU, to take account of that fundamental objective of the common foreign and security policy (CFSP), except where the operator is able to establish that the [OSCURATO:PERSONA] failed to comply with its mandatory obligations in a flagrant or inexcusable manner, or that it infringed, again in a flagrant or inexcusable manner, a fundamental right recognised by the [OSCURATO:PERSONA] (judgment of 13 December 2017,

HTTS

v

[OSCURATO:PERSONA]

, T‑692/15, under appeal, EU:T:2017:890, paragraph 46). 48 The fact that one or more of the acts of the [OSCURATO:PERSONA] giving rise to the losses claimed by an applicant may have been annulled, even by a judgment of the [OSCURATO:PERSONA] delivered before the action for damages had been brought, is not irrefutable evidence of a sufficiently serious breach on the part of that institution, giving rise ipso jure to liability on the part of the [OSCURATO:PERSONA] (see, to that effect, judgment of 13 December 2017,

HTTS

v

[OSCURATO:PERSONA]

, T‑692/15, under appeal, EU:T:2017:890, paragraph 48). 49 The decisive test for a finding that the requirement not to leave those individuals to bear the consequences of flagrant and inexcusable misconduct on the part of the institution concerned has been satisfied, is whether the institution concerned has manifestly and gravely disregarded the limits of its discretion.

The determining factor in deciding whether there has been such an infringement is, therefore, the discretion available to the institution concerned.

It is apparent from the criteria of the case-law that, if the institution in question has only considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach (see judgment of 23 November 2011,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, T‑341/07, EU:T:2011:687, paragraph 35 and the case-law cited). 50 However, that case-law does not establish any automatic link between, on the one hand, the fact that the institution concerned has no discretion and, on the other, the classification of the infringement as a sufficiently serious breach of EU law.

The extent of the discretion enjoyed by the institution concerned, although determinative, is not the only yardstick.

On this point, the [OSCURATO:PERSONA] of Justice has many times recalled that the system of rules it has developed with regard to the second paragraph of [OSCURATO:PERSONA] 288 EC (now the second paragraph of [OSCURATO:PERSONA] 340 TFEU) also takes into account, in particular, the complexity of the situations to be regulated and the difficulties in applying or interpreting the texts (see judgment of 23 November 2011,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, T‑341/07, EU:T:2011:687, paragraphs 36 and 37 and the case-law cited). 51 It follows that only the finding of an irregularity that an administrative authority, exercising ordinary care and diligence, would not have committed in similar circumstances, can render the [OSCURATO:PERSONA] liable (see judgment of 23 November 2011,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, T‑341/07, EU:T:2011:687, paragraph 39 and the case-law cited). 52 It is, consequently, for the EU judicature, once it has first determined whether the institution concerned enjoyed any discretion, next to take into consideration the complexity of the situation to be regulated, any difficulties in applying or interpreting the legislation, the clarity and precision of the rule infringed, and whether the error made was inexcusable or intentional.

On any view, an infringement of EU law is sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case-law on the matter from which it is clear that the conduct in question constituted an infringement (see judgment of 23 November 2011,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, T‑341/07, EU:T:2011:687, paragraph 40 and the case-law cited). 53 In the present case, it must be borne in mind that, in the judgment of 22 January 2015,

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v

[OSCURATO:PERSONA]

(T‑176/12, not published, EU:T:2015:43), the [OSCURATO:PERSONA] annulled the applicant’s inclusion in the list of designated persons and entities, holding that the [OSCURATO:PERSONA] had not provided information to substantiate the contentions in the statement of reasons.

In paragraph 73 of that judgment, it confirmed that the annulment of the measures at issue was suspended for a period of two months, extended on account of distance by 10 days, in which the [OSCURATO:PERSONA] might ‘remedy the infringements established by adopting, if appropriate, new restrictive measures with respect to the applicant’. 54 Subsequently, on 7 April 2015, the [OSCURATO:PERSONA] adopted new measures by which the applicant was again included in the list of designated persons and entities, with a new statement of reasons (see paragraph 10 above). 55 In the judgment of 14 March 2017,

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v

[OSCURATO:PERSONA]

(T‑346/15, not published, EU:T:2017:164), first, the [OSCURATO:PERSONA] held that the [OSCURATO:PERSONA] was entitled, pursuant to [OSCURATO:PERSONA] 266 TFEU, to re-list the applicant, following the judgment of 22 January 2015,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(T‑176/12, not published, EU:T:2015:43).

Secondly, the [OSCURATO:PERSONA] held that the applicant’s right to be heard had been observed, given that the [OSCURATO:PERSONA] had afforded it the possibility, in good time, to submit observations on the decision intended to re-list it and on the grounds justifying that re-listing.

Thirdly, the [OSCURATO:PERSONA] held that the [OSCURATO:PERSONA] had not made an error of assessment in finding that the applicant met the conditions for designation on the ground that it was providing direct financial support to the [OSCURATO:PERSONA] and was providing support for the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]’s nuclear proliferation activities through involvement in the procurement of prohibited goods and technology. 56 As regards the new measures including the applicant’s name in the list of designated persons and entities, it should be recalled that, by judgment of 29 November 2018,

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[OSCURATO:PERSONA]

(C‑248/17 P, EU:C:2018:967), the [OSCURATO:PERSONA] of Justice upheld the judgment of 14 March 2017,

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[OSCURATO:PERSONA]

(T‑346/15, not published, EU:T:2017:164), which is why the applicant no longer claims, as is apparent from its reply at the hearing and its pleadings of 2 January 2019, damages for the period after 7 April 2015. 57 As regards the initial listing acts of January 2012, held unlawful in the judgment of 22 January 2015,

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[OSCURATO:PERSONA]

(T‑176/12, not published, EU:T:2015:43), first, it must be recalled that, in accordance with the case-law, provisions which set forth exhaustively the conditions in which restrictive measures may be adopted are intended essentially to protect the individual interests of the persons and entities likely to be concerned, by limiting the cases in which such measures may lawfully be applied to them (see, by analogy, judgments of 23 November 2011,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, T‑341/07, EU:T:2011:687, paragraph 51 and the case-law cited, and of 25 November 2014,

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v

[OSCURATO:PERSONA]

, T‑384/11, EU:T:2014:986, paragraph 57). 58 Those provisions thus ensure that the individual interests of the persons and entities liable to be concerned by restrictive measures are protected and are, therefore, to be considered to be rules of law intended to confer rights on individuals.

If the substantive conditions in question are not satisfied, the person or the entity concerned is entitled not to have restrictive measures imposed on it.

Such a right necessarily implies that the person or the entity on which restrictive measures are imposed in circumstances not provided for by the provisions in question may seek compensation for the harmful consequences of those measures, if it should prove that their imposition was founded on a sufficiently serious breach of the substantive rules applied by the [OSCURATO:PERSONA] (see, by analogy, judgments of 23 November 2011,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, T‑341/07, EU:T:2011:687, paragraph 52 and the case-law cited, and of 25 November 2014,

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v

[OSCURATO:PERSONA]

, T‑384/11, EU:T:2014:986, paragraph 58). 59 Secondly, as to whether the [OSCURATO:PERSONA] enjoyed any discretion, it is apparent from the case-law that the [OSCURATO:PERSONA]’s obligation to substantiate the restrictive measures adopted arises from the requirement to observe the fundamental rights of the persons and entities concerned, and in particular their right to effective judicial protection, which implies that the [OSCURATO:PERSONA] does not enjoy any discretion in that regard (judgment of 25 November 2014,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, T‑384/11, EU:T:2014:986, paragraph 60). 60 As regards the determination of the [OSCURATO:PERSONA]’s obligations towards the applicant in the light of the case-law in force when the acts at issue were adopted, it must be recalled, as the [OSCURATO:PERSONA] of Justice had already stated in case-law predating the adoption of those acts, that the [OSCURATO:PERSONA] is based on the rule of law and the acts of its institutions are subject to review by the [OSCURATO:PERSONA] of their compatibility with EU law and, in particular, with the FEU Treaty and the general principles of law (see judgment of 29 June 2010, E and F , C‑550/09, EU:C:2010:382, paragraph 44 and the case-law cited), and natural and legal persons must enjoy effective judicial protection (judgment of 30 May 2017,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, C‑45/15 P, EU:C:2017:402, paragraph 35). 61 With regard to respect for the principle of effective judicial protection, the [OSCURATO:PERSONA] of Justice held in paragraph 343 of the judgment of 3 September 2008, Kadi and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (C‑402/05 P and C‑415/05 P, EU:C:2008:461), that restrictive measures adopted in respect of natural or legal persons do not escape all review by the EU judicature, including where it has been claimed that the act laying them down concerns national security and terrorism (see, to that effect, judgment of 30 May 2017,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, C‑45/15 P, EU:C:2017:402, paragraph 36). 62 As is evident from that case-law, the right to effective judicial protection requires the [OSCURATO:PERSONA] to provide, in the event of a challenge, information or evidence substantiating the reasons for the adoption of restrictive measures against natural or legal persons.

In that regard, it is apparent from paragraph 336 of the judgment of 3 September 2008, Kadi and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (C‑402/05 P and C‑415/05 P, EU:C:2008:461) that it must be possible for the judicial review of restrictive measures adopted in respect of natural or legal persons to apply, in particular, to the lawfulness of the grounds on which the decision imposing a set of restrictive measures on a person or on an entity is based (judgment of 30 May 2017,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, C‑45/15 P, EU:C:2017:402, paragraph 37). 63 Similarly, in paragraph 57 of the judgment of 29 June 2010, E and F (C‑550/09, EU:C:2010:382), the [OSCURATO:PERSONA] of Justice considered that an adequate review by the courts of the substantive legality of individual restrictive measures had to cover, in particular, verification of the facts and of the evidence and information relied upon in order to adopt those measures (judgment of 30 May 2017,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, C‑45/15 P, EU:C:2017:402, paragraph 38). 64 Furthermore, although the cases giving rise to those judgments concerned asset-freezing measures adopted in the specific context of the fight against international terrorism, it is clear that the obligation to establish that restrictive measures targeting individual persons and entities are well founded, which is derived from that case-law, applies equally with regard to the adoption of asset-freezing restrictive measures aimed at applying pressure on the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], such as those covering the applicant, given, in particular, the individual nature of those restrictive measures and the considerable impact they are likely to have on the rights and freedoms of the persons and entities subject to them (see, to that effect, judgment of 3 September 2008, Kadi and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 361 and 375). 65 In those circumstances, it must be held that the obligation on the [OSCURATO:PERSONA] to provide, in the event of a challenge, information or evidence substantiating the reasons for the adoption of restrictive measures against a natural or legal person was already apparent, at the time when the provisions at issue were adopted, from well-established case-law of the [OSCURATO:PERSONA] of Justice (see, to that effect, judgment of 30 May 2017,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, C‑45/15 P, EU:C:2017:402, paragraph 40). 66 However, while in the case giving rise to the judgment of 25 November 2014,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(T‑384/11, EU:T:2014:986, paragraph 59), the [OSCURATO:PERSONA] found that the [OSCURATO:PERSONA] had committed an infringement although it did not enjoy any discretion, this was due to the fact, as the [OSCURATO:PERSONA] of Justice held in the judgment of 30 May 2017,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(C‑45/15 P, EU:C:2017:402, paragraph 33), that it did not have information or evidence to substantiate the reasons for the adoption of restrictive measures against the applicant. 67 As the [OSCURATO:PERSONA] contends, the situation in the present case is different.

In the cases giving rise to the judgments of 23 November 2011,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(T‑341/07, EU:T:2011:687), and of 25 November 2014,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(T‑384/11, EU:T:2014:986), none of the parties to those proceedings had been re-included in the lists of designated persons and entities following those judgments concluding that the [OSCURATO:PERSONA] had made an error of assessment in including them on those lists.

Consequently, since [OSCURATO:PERSONA] and [OSCURATO:PERSONA] could not be shown to be covered by the listing criteria, they were entitled not to have restrictive measures imposed on them. 68 In that regard, it is apparent from the wording of the judgment of 14 March 2017,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(T‑346/15, not published, EU:T:2017:164), that the applicant did indeed satisfy the relevant designation criteria when the listing acts were adopted. 69 The applicant’s initial listing was based on the support it provided for nuclear proliferation, a listing criterion provided for in [OSCURATO:PERSONA] 20(1)(b) of [OSCURATO:PERSONA] 2010/413 and [OSCURATO:PERSONA] 23(2)(a) of [OSCURATO:PERSONA] 267/2012.

The re-listing decision is also founded on that legal basis and on two separate grounds: one relating to the provision of support by the applicant to the [OSCURATO:PERSONA] and the other relating to the applicant’s involvement in the procurement of prohibited goods and technology. 70 In the context of the re-listing, the [OSCURATO:PERSONA] supplied several documents in support of the matters in that statement of reasons, which also show the applicant’s involvement in proliferation before and during its initial listing. 71 In that regard, the [OSCURATO:PERSONA] produced an article taken from the website of an [OSCURATO:PERSONA] press agency, from March 2011, in which the director of [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (PEDEC) announced the forthcoming signing of a contract for the development of the Darkhovin ([OSCURATO:PERSONA]) oilfield, aimed at eventually raising crude oil production capacity to 260 000 barrels per day, and stated that the applicant would provide financial resources for the project.

In addition, an article published at the same time by the same agency announced the issuing of bonds by [OSCURATO:PERSONA] and [OSCURATO:PERSONA], which would be offered, inter alia, by the applicant from March 2011 and which would be used to fund oil industry projects. 72 It follows from this that, at the time when the initial listing acts were adopted in January 2012, the applicant, through its financing of development projects in the oil sector, was involved in the procurement of prohibited goods and technology, which constituted a form of support to the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]’s nuclear-proliferation activities. 73 Consequently, the activities carried out by the applicant when the initial acts including it in the list of designated persons and entities were adopted, in January 2012, fell within the designation criterion relating to the provision of support for the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]’s nuclear-proliferation activities through the involvement in procurement of prohibited goods, in terms of [OSCURATO:PERSONA] 20(1)(b) of [OSCURATO:PERSONA] 2010/413 and [OSCURATO:PERSONA] 16(2)(a) of [OSCURATO:PERSONA] 961/2010 (now [OSCURATO:PERSONA] 23(2)(a) of [OSCURATO:PERSONA] 267/2012).

Although the specific contentions set out in the initial statement of reasons were different from the facts mentioned in the statement of reasons of the subsequent re-listing acts of April 2015, the initial listing decision was, nonetheless, based on the same criterion, namely the support provided for the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]’s nuclear-proliferation activities. 74 In other words, if the [OSCURATO:PERSONA] had adduced the evidence mentioned in paragraph 71 above, that would have been sufficient to prove that the applicant provided support for nuclear proliferation by the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]. 75 In that regard, it must be found that the [OSCURATO:PERSONA] did not indeed produce the evidence in the context of the action for annulment of the initial listing acts of January 2012.

However, it is settled case-law that the institution the conduct of which is at issue as regards giving rise to non-contractual liability on the part of the [OSCURATO:PERSONA] is, in principle, entitled to rely, by way of defence, on all relevant facts and matters occurring before the action for damages was brought, just as the applicant is entitled to rely on evidence post-dating the occurrence of damage in order to prove the scope and extent of such damage, and that the justification for that possibility for the institution is particularly clear in an area of EU activity such as the CFSP (judgment of 13 December 2017,

HTTS

v

[OSCURATO:PERSONA]

, T‑692/15, under appeal, EU:T:2017:890, paragraphs 49 and 50). 76 Thus, in the present action for damages, the [OSCURATO:PERSONA] cannot overlook the relevant reasons and the evidence which the [OSCURATO:PERSONA] has put forward by way of defence, with a view to demonstrating that the requirement which must be met in order for non-contractual liability to arise on the part of the [OSCURATO:PERSONA] was not satisfied. 77 It follows from the foregoing that the infringement found as regards the initial listing acts does not does not amount to a sufficiently serious breach in order to give rise to non-contractual liability on the part of the [OSCURATO:PERSONA]. 78 The action must, therefore, be dismissed in its entirety, without there being any need to examine whether the other conditions for establishing the [OSCURATO:PERSONA] non-contractual liability have been met, or to examine the applicant’s application for a measure of organisation of procedure consisting in the appointment of an expert in order to carry out an accounting valuation of the damage alleged.

Costs 79 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure of the [OSCURATO:PERSONA], the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 80 In addition, under [OSCURATO:PERSONA] 138(1) of the Rules of Procedure, the [OSCURATO:PERSONA] and institutions which have intervened in the proceedings are to bear their own costs. 81 Since the [OSCURATO:PERSONA] has applied for costs and the applicant has been unsuccessful, the applicant must be ordered to bear its own costs and to pay those incurred by the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] must bear its own costs.

On those grounds,

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

hereby:

1. Dismisses the action;

2. [OSCURATO:PERSONA] to bear its own costs and to pay those incurred by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA];

3. [OSCURATO:PERSONA] the [OSCURATO:PERSONA] to bear its own costs. [OSCURATO:PERSONA] in open court in Luxembourg on 16 May 2019.

E. Coulon

A.M. [OSCURATO:PERSONA]

* Language of the case: English.

Anonimizzato ex art. 52 D.Lgs. 196/2003
[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 16 May 2019 ( * ) (Non-contractual liability — [OSCURATO:PERSONA] foreign and security policy — Restrictive measures against [OSCURATO:PERSONA] — Freezing of funds — Restriction on admission to the territory of the [OSCURATO:PERSONA] — Compensation for the damage allegedly sustained by the applicant following its inclusion and re-inclusion in the list of persons and entities subject to the restrictive measures at issue — Sufficiently serious breach of a rule of law conferring rights on individuals) [OSCURATO:PERSONA] T‑37/17, [OSCURATO:PERSONA], established in Tehran ([OSCURATO:PERSONA]), represented by S. Zaiwalla, P. Reddy, K. Mittal, A. Meskarian, Solicitors, T. Otty QC, R. Blakeley, V. Zaiwalla, H. Leith, Barristers, and T. de la Mare QC, applicant, v [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], represented by M. Bishop and A. Vitro, acting as Agents, defendant, supported by [OSCURATO:PERSONA], represented by L. Havas and J. Norris, acting as Agents, intervener, APPLICATION based on [OSCURATO:PERSONA] 268 TFEU for compensation for the damage allegedly sustained by the applicant as a result of [OSCURATO:PERSONA] (EU) No 54/2012 of 23 January 2012 implementing [OSCURATO:PERSONA] (EU) No 961/2010 on restrictive measures against [OSCURATO:PERSONA] (OJ 2012 L 19, p. 1), [OSCURATO:PERSONA] (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against [OSCURATO:PERSONA] and repealing [OSCURATO:PERSONA] (EU) No 961/2010 (OJ 2012 L 88, p. 1), and [OSCURATO:PERSONA] (EU) No 709/2012 of 2 August 2012 implementing [OSCURATO:PERSONA] 267/2012 (OJ 2012 L 208, p. 2), [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of M. [OSCURATO:PERSONA], [OSCURATO:PERSONA], F. [OSCURATO:PERSONA] (Rapporteur) and M.J. [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: F. Oller, Administrator, having regard to the written part of the procedure and further to the hearing on 5 December 2018, gives the following [OSCURATO:PERSONA] to the dispute 1 The present case has been brought in connection with the restrictive measures introduced in order to apply pressure on the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] to end proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems. 2 The applicant, [OSCURATO:PERSONA], is an [OSCURATO:PERSONA] bank. 3 The applicant’s name was included in the list of designated persons and entities in Annex II to [OSCURATO:PERSONA] 2010/413/CFSP of 26 July 2010 concerning restrictive measures against [OSCURATO:PERSONA] and repealing [OSCURATO:PERSONA] 2007/140/CFSP (OJ 2010 L 195, p. 39), by [OSCURATO:PERSONA] 2012/35/CFSP of 23 January 2012 amending [OSCURATO:PERSONA] 2010/413 (OJ 2012 L 19, p. 22) and, consequently, in Annex VIII to [OSCURATO:PERSONA] (EU) No 961/2010 of 25 October 2010 on restrictive measures against [OSCURATO:PERSONA] and repealing [OSCURATO:PERSONA] (EC) No 423/2007 (OJ 2010 L 281, p. 1), by [OSCURATO:PERSONA] (EU) No 54/2012 of 23 January 2012 implementing [OSCURATO:PERSONA] 961/2010 (OJ 2012 L 19, p. 1). 4 Subsequently, the applicant’s name was included in the list of the designated persons and entities in Annex IX to [OSCURATO:PERSONA] (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against [OSCURATO:PERSONA] and repealing [OSCURATO:PERSONA] 961/2010 (OJ 2012 L 88, p. 1), and in Annex II to [OSCURATO:PERSONA] (EU) No 709/2012 of 2 August 2012 implementing [OSCURATO:PERSONA] 267/2012 (OJ 2012 L 208, p. 2). 5 The restrictive measures mentioned in paragraphs 3 and 4 above are referred to below as ‘the initial listing acts’. 6 Those listings had the effect of freezing all the funds and economic resources held by the applicant within the [OSCURATO:PERSONA]. 7 [OSCURATO:PERSONA] 2012/35, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] stated the following reasons in support of the applicant’s designation: ‘[OSCURATO:PERSONA] is a State-owned bank. It has directly facilitated [OSCURATO:PERSONA]’s nuclear efforts. For example, in 2011, [OSCURATO:PERSONA] facilitated the movement of tens of millions of dollars in an effort to assist the UN [[OSCURATO:PERSONA]] designated [OSCURATO:PERSONA] of [OSCURATO:PERSONA]’s ongoing effort to acquire yellowcake uranium. The AEOI is the main [OSCURATO:PERSONA] organisation for research and development of nuclear technology, and manages fissile material production programs. [OSCURATO:PERSONA] also has a history of assisting designated [OSCURATO:PERSONA] banks in circumventing international sanctions, for example acting in business involving UN designated [OSCURATO:PERSONA] cover companies. Through its financial services to EU designated [OSCURATO:PERSONA] and [OSCURATO:PERSONA] of [OSCURATO:PERSONA] (EDBI) in the past few years, [OSCURATO:PERSONA] has also supported the activities of subsidiaries and subordinates of the [OSCURATO:PERSONA], UN designated [OSCURATO:PERSONA] and UN designated Modafl.’ 8 By application lodged at the [OSCURATO:PERSONA] on 16 April 2012, the applicant brought an action for annulment of [OSCURATO:PERSONA] 2012/35, [OSCURATO:PERSONA] 54/2012, [OSCURATO:PERSONA] 267/2012 and [OSCURATO:PERSONA] 709/2012, in so far as those acts concerned it. 9 By judgment of 22 January 2015, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑176/12, not published, EU:T:2015:43), the [OSCURATO:PERSONA] annulled the acts mentioned in paragraph 8 above in so far as they concerned the applicant, on the ground that the [OSCURATO:PERSONA] had not proven that the applicant had provided support for nuclear proliferation or assisted other persons and entities to infringe or avoid restrictive measures to which they were subject. As no appeal was brought against that judgment, it became final and acquired the force of res judicata. 10 By the adoption of [OSCURATO:PERSONA] (CFSP) 2015/556 of 7 April 2015 amending [OSCURATO:PERSONA] 2010/413 (OJ 2015 L 92, p. 101) and of [OSCURATO:PERSONA] (EU) 2015/549 of 7 April 2015 implementing [OSCURATO:PERSONA] 267/2012 (OJ 2015 L 92, p. 12), the [OSCURATO:PERSONA] re-included the applicant’s name in the list of designated persons and entities, providing a new statement of reasons: ‘[OSCURATO:PERSONA] provides significant support to the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] by offering financial resources and financing services for oil and gas development projects. The oil and gas sector constitutes a significant source of funding for the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and several projects financed by [OSCURATO:PERSONA] are carried out by subsidiaries of entities owned and controlled by the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]. In addition, [OSCURATO:PERSONA] remains partly owned by and closely linked to the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] which is therefore in a position to influence [OSCURATO:PERSONA] decisions, including its involvement in the financing of projects regarded by the [OSCURATO:PERSONA] as a high priority. Furthermore, as [OSCURATO:PERSONA] provides financing to various crude oil productions and refining projects which necessarily require the acquisition of key equipment and technology for those sectors whose supply for use in [OSCURATO:PERSONA] is prohibited, [OSCURATO:PERSONA] can be identified as being involved in the procurement of prohibited goods and technology.’ 11 By application lodged at the [OSCURATO:PERSONA] on 18 June 2015, the applicant sought the annulment of the measures re-including it in the list of designated persons and entities. 12 By judgment of 14 March 2017, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑346/15, not published, EU:T:2017:164), the [OSCURATO:PERSONA] dismissed the action brought by the applicant, thereby confirming the legality of the decision taken by the [OSCURATO:PERSONA] to re-list the applicant on the basis of the grounds set out in paragraph 10 above. 13 The applicant was, therefore, subject to the restrictive measures at issue for three years. It was then re-included in the list of the designated persons and entities, from the period from 7 April 2015 to 16 January 2016, that is until the date of implementation of the [OSCURATO:PERSONA] of Action (JCPOA) concluded with the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] in July 2015, which lifted the [OSCURATO:PERSONA] restrictive measures against the applicant. Procedure and forms of order sought 14 By application lodged at the [OSCURATO:PERSONA] on 23 January 2017, the applicant brought the present action. 15 [OSCURATO:PERSONA] lodged the defence on 26 April 2017. 16 By document lodged at the [OSCURATO:PERSONA] on 12 May 2017, the [OSCURATO:PERSONA] sought leave to intervene in the present proceedings in support of the form of order sought by the [OSCURATO:PERSONA]. 17 On 22 May 2017, the [OSCURATO:PERSONA] submitted its observations on the application for leave to intervene. 18 By decision of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 June 2017, the [OSCURATO:PERSONA] was granted leave to intervene in support of the form of order sought by the [OSCURATO:PERSONA]. 19 On 19 June 2017, the applicant lodged the reply. 20 On 26 July 2017, the [OSCURATO:PERSONA] lodged its statement in intervention. 21 On 28 July 2017, the [OSCURATO:PERSONA] lodged the rejoinder. 22 On 6 September 2017, the applicant lodged its observations on the statement in intervention and requested the [OSCURATO:PERSONA], by letter dated the same day, to adopt measures of organisation of procedure to split the present proceedings into two phases, a liability phase and a quantum phase. 23 By letters of 22 September 2017, the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] lodged their observations on the application for measures of organisation of procedure. 24 By decision of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 11 June 2018, the present case was assigned to a new Judge-Rapporteur, sitting in the [OSCURATO:PERSONA]. 25 On a proposal from the Judge-Rapporteur, the [OSCURATO:PERSONA] decided to open the oral part of the procedure. 26 The parties presented oral argument and answered questions put to them by the [OSCURATO:PERSONA] at the hearing on 5 December 2018, during which the applicant was asked what conclusions had to be drawn from the judgment of 29 November 2018, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (C‑248/17 P, EU:C:2018:967), a judgment in which the [OSCURATO:PERSONA] of Justice dismissed the appeal brought against the judgment of 14 March 2017, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑346/15, not published, EU:T:2017:164). In the light of the applicant’s response, the [OSCURATO:PERSONA] requested it to produce a document containing the amendments to its heads of claim and a fresh assessment of the damage sustained further to those amendments. 27 By letter lodged at the [OSCURATO:PERSONA] on 2 January 2019, the applicant complied with that request. 28 By measure of organisation of procedure dated 11 January 2019, the applicant was requested to submit its observations on the [OSCURATO:PERSONA]’s argument, made during the hearing, that the [OSCURATO:PERSONA] does not have jurisdiction to rule in the present action for damages as far as it concerns [OSCURATO:PERSONA] 2010/413 and its versions as amended by successive decisions. 29 By letter lodged at the [OSCURATO:PERSONA] on 28 January 2019, the applicant submitted its observations, in which it stated that the present action for damages was based on [OSCURATO:PERSONA] 54/2012, No 267/2012 and No 709/2012 ([OSCURATO:PERSONA] 54/2012, No 267/2012 and No 709/2012 hereinafter being referred to collectively as ‘the acts at issue’). 30 By letters lodged at the [OSCURATO:PERSONA] on 28 January 2019, the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] lodged their observations on the applicant’s replies of 2 January 2019. 31 The oral part of the procedure was closed on 5 February 2019. 32 The applicant claims that the [OSCURATO:PERSONA] should: –        order the [OSCURATO:PERSONA] to pay the following sums to it: –        399 880 000 [OSCURATO:PERSONA] dollars (USD), being EUR 349 695 249.54 at the prevailing exchange rate on 2 January 2019, in respect of material damage; –        interest on the damage sustained by the applicant, up until the date of the [OSCURATO:PERSONA]’s judgment from the date at which it was sustained, at the [OSCURATO:PERSONA] (ECB) main refinancing rate plus two per cent per annum, amounting to USD 42 403 569.77 (EUR 37 081 352.43) at 2 January 2019, and at a ‘daily rate of USD 21 911.23 (EUR 19 160.74)’ as from 3 January 2019 until judgment, or, alternatively at such rate and for such period as the [OSCURATO:PERSONA] thinks fit; –        EUR 1 000 000 in respect of non-material damage; –        post-judgment interest on the sums in the foregoing sub-indents at ECB main refinancing rate plus two per cent per annum until the date of payment or, in the alternative, at such rate and for such period as the [OSCURATO:PERSONA] thinks fit; –        order the [OSCURATO:PERSONA] to pay the costs. 33 [OSCURATO:PERSONA], supported by the [OSCURATO:PERSONA], contends that the [OSCURATO:PERSONA] should: –        dismiss the action; –        order the applicant to pay the costs. Law 34 The applicant submits that the adoption of the restrictive measures at issue caused it both material and non-material damage, for which it seeks compensation. The period covered by that claim encompasses the period between 23 January 2012, the date on which the initial listing act was adopted, and 6 April 2015, the day before the applicant’s name was re-included in the list of designated persons and entities. 35 [OSCURATO:PERSONA], supported by the [OSCURATO:PERSONA], disputes the applicant’s arguments. 36 In order for the [OSCURATO:PERSONA] to incur non-contractual liability under the second paragraph of [OSCURATO:PERSONA] 340 TFEU for unlawful conduct of its institutions or bodies, a number of conditions must be satisfied: the conduct of the EU institution or body must be unlawful, actual damage must have been sustained and there must be a causal link between the conduct complained of and the damage pleaded (see judgment of 25 November 2014, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑384/11, EU:T:2014:986, paragraph 47 and the case-law cited). 37 The cumulative nature of those three conditions governing the establishment of non-contractual liability means that, if one of them is not satisfied, the action for damages must be dismissed in its entirety, and there is no need to examine the other conditions (see judgment of 25 November 2014, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑384/11, EU:T:2014:986, paragraph 48 and the case-law cited). 38 It is, therefore, necessary to ascertain, in the present case, whether the applicant has discharged the burden of proving the unlawfulness of the conduct against the [OSCURATO:PERSONA] that it alleges, in connection with the adoption of the acts at issue, that it has actually sustained the material and non-material damage stemming from those acts which it claims, and that there is a causal link between that adoption and the damage which it alleges. 39 With regard to the unlawfulness of the [OSCURATO:PERSONA]’s conduct complained of, the applicant submits in essence that, in the light of the judgment of 22 January 2015, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑176/12, not published, EU:T:2015:43), it is apparent that the [OSCURATO:PERSONA] committed an unlawful act by entering and maintaining its name in the list of designated persons and entities, even though its decisions were not based on any evidence of the applicant’s participation in nuclear proliferation. 40 In addition, the applicant submits that the adoption of the acts at issue infringes a rule of law intended to confer rights upon individuals, namely the right not to be subject to unlawful sanctions adopted without any supporting evidence. 41 According to the applicant, which refers to the judgment of 25 November 2014, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑384/11, EU:T:20l4:986, paragraphs 57 and 58), the [OSCURATO:PERSONA]’s decision to enter or maintain a person’s name in the list of designated persons and entities although it does not have any information or evidence which substantiates the restrictive measures at issue to the requisite legal standard constitutes a sufficiently serious breach of the provisions at issue. 42 The applicant further submits that the [OSCURATO:PERSONA] cannot contend that the provisions which it infringed were vague, ambiguous or unclear because, when the acts at issue were adopted, it was clear that the [OSCURATO:PERSONA] had to provide evidence supporting the restrictive measures which it adopted. 43 [OSCURATO:PERSONA] disputes the applicant’s arguments. 44 According to settled case-law, a finding that a legal act of the [OSCURATO:PERSONA] is illegal, made for example in the context of an action for annulment, regrettable as it may be, is not a sufficient basis for holding that the non-contractual liability of the [OSCURATO:PERSONA], flowing from illegal conduct on the part of one of its institutions, has automatically arisen. In order for that condition to be met, the case-law requires the applicant to demonstrate, first, that the institution in question has not merely infringed a rule of law, but that the infringement is sufficiently serious and that the rule of law was intended to confer rights on individuals (see judgment of 4 July 2000, Bergaderm and Goupil v [OSCURATO:PERSONA] , C‑352/98 P, EU:C:2000:361, paragraph 42 and the case-law cited). 45 Furthermore, the requirement for proof of a sufficiently serious breach is intended to avoid, in the field inter alia of restrictive measures, the institution concerned being obstructed in the exercise of the functions which it is responsible for carrying out, in the general interest of the [OSCURATO:PERSONA] and its [OSCURATO:PERSONA], by the risk of ultimately having to bear losses which the persons concerned by its acts might potentially suffer, without however leaving those individuals to bear the consequences, be they financial or non-material, of flagrant and inexcusable misconduct on the part of the institution concerned (see, to that effect, judgments of 11 July 2007, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑351/03, EU:T:2007:212, paragraph 125; of 23 November 2011, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑341/07, EU:T:2011:687, paragraph 34; and of 25 November 2014, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑384/11, EU:T:2014:986, paragraph 51). 46 According to the case-law, the wider objective of maintaining peace and international security, in accordance with the objectives of the [OSCURATO:PERSONA] external action stated in [OSCURATO:PERSONA] 21 TEU, is such as to justify negative consequences for economic operators — even significant negative consequences — arising from decisions implementing acts adopted by the [OSCURATO:PERSONA] with a view to achieving that fundamental objective (see, to that effect, judgment of 28 March 2017, Rosneft , C‑72/15, EU:C:2017:236, paragraph 150 and the case-law cited). 47 Thus, in assessing the conduct of the institution concerned, the [OSCURATO:PERSONA], hearing an action for damages brought by an economic operator, is also required, having regard in particular to [OSCURATO:PERSONA] 215(2) TFEU, to take account of that fundamental objective of the common foreign and security policy (CFSP), except where the operator is able to establish that the [OSCURATO:PERSONA] failed to comply with its mandatory obligations in a flagrant or inexcusable manner, or that it infringed, again in a flagrant or inexcusable manner, a fundamental right recognised by the [OSCURATO:PERSONA] (judgment of 13 December 2017, HTTS v [OSCURATO:PERSONA] , T‑692/15, under appeal, EU:T:2017:890, paragraph 46). 48 The fact that one or more of the acts of the [OSCURATO:PERSONA] giving rise to the losses claimed by an applicant may have been annulled, even by a judgment of the [OSCURATO:PERSONA] delivered before the action for damages had been brought, is not irrefutable evidence of a sufficiently serious breach on the part of that institution, giving rise ipso jure to liability on the part of the [OSCURATO:PERSONA] (see, to that effect, judgment of 13 December 2017, HTTS v [OSCURATO:PERSONA] , T‑692/15, under appeal, EU:T:2017:890, paragraph 48). 49 The decisive test for a finding that the requirement not to leave those individuals to bear the consequences of flagrant and inexcusable misconduct on the part of the institution concerned has been satisfied, is whether the institution concerned has manifestly and gravely disregarded the limits of its discretion. The determining factor in deciding whether there has been such an infringement is, therefore, the discretion available to the institution concerned. It is apparent from the criteria of the case-law that, if the institution in question has only considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach (see judgment of 23 November 2011, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑341/07, EU:T:2011:687, paragraph 35 and the case-law cited). 50 However, that case-law does not establish any automatic link between, on the one hand, the fact that the institution concerned has no discretion and, on the other, the classification of the infringement as a sufficiently serious breach of EU law. The extent of the discretion enjoyed by the institution concerned, although determinative, is not the only yardstick. On this point, the [OSCURATO:PERSONA] of Justice has many times recalled that the system of rules it has developed with regard to the second paragraph of [OSCURATO:PERSONA] 288 EC (now the second paragraph of [OSCURATO:PERSONA] 340 TFEU) also takes into account, in particular, the complexity of the situations to be regulated and the difficulties in applying or interpreting the texts (see judgment of 23 November 2011, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑341/07, EU:T:2011:687, paragraphs 36 and 37 and the case-law cited). 51 It follows that only the finding of an irregularity that an administrative authority, exercising ordinary care and diligence, would not have committed in similar circumstances, can render the [OSCURATO:PERSONA] liable (see judgment of 23 November 2011, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑341/07, EU:T:2011:687, paragraph 39 and the case-law cited). 52 It is, consequently, for the EU judicature, once it has first determined whether the institution concerned enjoyed any discretion, next to take into consideration the complexity of the situation to be regulated, any difficulties in applying or interpreting the legislation, the clarity and precision of the rule infringed, and whether the error made was inexcusable or intentional. On any view, an infringement of EU law is sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case-law on the matter from which it is clear that the conduct in question constituted an infringement (see judgment of 23 November 2011, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑341/07, EU:T:2011:687, paragraph 40 and the case-law cited). 53 In the present case, it must be borne in mind that, in the judgment of 22 January 2015, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑176/12, not published, EU:T:2015:43), the [OSCURATO:PERSONA] annulled the applicant’s inclusion in the list of designated persons and entities, holding that the [OSCURATO:PERSONA] had not provided information to substantiate the contentions in the statement of reasons. In paragraph 73 of that judgment, it confirmed that the annulment of the measures at issue was suspended for a period of two months, extended on account of distance by 10 days, in which the [OSCURATO:PERSONA] might ‘remedy the infringements established by adopting, if appropriate, new restrictive measures with respect to the applicant’. 54 Subsequently, on 7 April 2015, the [OSCURATO:PERSONA] adopted new measures by which the applicant was again included in the list of designated persons and entities, with a new statement of reasons (see paragraph 10 above). 55 In the judgment of 14 March 2017, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑346/15, not published, EU:T:2017:164), first, the [OSCURATO:PERSONA] held that the [OSCURATO:PERSONA] was entitled, pursuant to [OSCURATO:PERSONA] 266 TFEU, to re-list the applicant, following the judgment of 22 January 2015, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑176/12, not published, EU:T:2015:43). Secondly, the [OSCURATO:PERSONA] held that the applicant’s right to be heard had been observed, given that the [OSCURATO:PERSONA] had afforded it the possibility, in good time, to submit observations on the decision intended to re-list it and on the grounds justifying that re-listing. Thirdly, the [OSCURATO:PERSONA] held that the [OSCURATO:PERSONA] had not made an error of assessment in finding that the applicant met the conditions for designation on the ground that it was providing direct financial support to the [OSCURATO:PERSONA] and was providing support for the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]’s nuclear proliferation activities through involvement in the procurement of prohibited goods and technology. 56 As regards the new measures including the applicant’s name in the list of designated persons and entities, it should be recalled that, by judgment of 29 November 2018, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (C‑248/17 P, EU:C:2018:967), the [OSCURATO:PERSONA] of Justice upheld the judgment of 14 March 2017, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑346/15, not published, EU:T:2017:164), which is why the applicant no longer claims, as is apparent from its reply at the hearing and its pleadings of 2 January 2019, damages for the period after 7 April 2015. 57 As regards the initial listing acts of January 2012, held unlawful in the judgment of 22 January 2015, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑176/12, not published, EU:T:2015:43), first, it must be recalled that, in accordance with the case-law, provisions which set forth exhaustively the conditions in which restrictive measures may be adopted are intended essentially to protect the individual interests of the persons and entities likely to be concerned, by limiting the cases in which such measures may lawfully be applied to them (see, by analogy, judgments of 23 November 2011, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑341/07, EU:T:2011:687, paragraph 51 and the case-law cited, and of 25 November 2014, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑384/11, EU:T:2014:986, paragraph 57). 58 Those provisions thus ensure that the individual interests of the persons and entities liable to be concerned by restrictive measures are protected and are, therefore, to be considered to be rules of law intended to confer rights on individuals. If the substantive conditions in question are not satisfied, the person or the entity concerned is entitled not to have restrictive measures imposed on it. Such a right necessarily implies that the person or the entity on which restrictive measures are imposed in circumstances not provided for by the provisions in question may seek compensation for the harmful consequences of those measures, if it should prove that their imposition was founded on a sufficiently serious breach of the substantive rules applied by the [OSCURATO:PERSONA] (see, by analogy, judgments of 23 November 2011, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑341/07, EU:T:2011:687, paragraph 52 and the case-law cited, and of 25 November 2014, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑384/11, EU:T:2014:986, paragraph 58). 59 Secondly, as to whether the [OSCURATO:PERSONA] enjoyed any discretion, it is apparent from the case-law that the [OSCURATO:PERSONA]’s obligation to substantiate the restrictive measures adopted arises from the requirement to observe the fundamental rights of the persons and entities concerned, and in particular their right to effective judicial protection, which implies that the [OSCURATO:PERSONA] does not enjoy any discretion in that regard (judgment of 25 November 2014, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑384/11, EU:T:2014:986, paragraph 60). 60 As regards the determination of the [OSCURATO:PERSONA]’s obligations towards the applicant in the light of the case-law in force when the acts at issue were adopted, it must be recalled, as the [OSCURATO:PERSONA] of Justice had already stated in case-law predating the adoption of those acts, that the [OSCURATO:PERSONA] is based on the rule of law and the acts of its institutions are subject to review by the [OSCURATO:PERSONA] of their compatibility with EU law and, in particular, with the FEU Treaty and the general principles of law (see judgment of 29 June 2010, E and F , C‑550/09, EU:C:2010:382, paragraph 44 and the case-law cited), and natural and legal persons must enjoy effective judicial protection (judgment of 30 May 2017, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑45/15 P, EU:C:2017:402, paragraph 35). 61 With regard to respect for the principle of effective judicial protection, the [OSCURATO:PERSONA] of Justice held in paragraph 343 of the judgment of 3 September 2008, Kadi and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (C‑402/05 P and C‑415/05 P, EU:C:2008:461), that restrictive measures adopted in respect of natural or legal persons do not escape all review by the EU judicature, including where it has been claimed that the act laying them down concerns national security and terrorism (see, to that effect, judgment of 30 May 2017, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑45/15 P, EU:C:2017:402, paragraph 36). 62 As is evident from that case-law, the right to effective judicial protection requires the [OSCURATO:PERSONA] to provide, in the event of a challenge, information or evidence substantiating the reasons for the adoption of restrictive measures against natural or legal persons. In that regard, it is apparent from paragraph 336 of the judgment of 3 September 2008, Kadi and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (C‑402/05 P and C‑415/05 P, EU:C:2008:461) that it must be possible for the judicial review of restrictive measures adopted in respect of natural or legal persons to apply, in particular, to the lawfulness of the grounds on which the decision imposing a set of restrictive measures on a person or on an entity is based (judgment of 30 May 2017, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑45/15 P, EU:C:2017:402, paragraph 37). 63 Similarly, in paragraph 57 of the judgment of 29 June 2010, E and F (C‑550/09, EU:C:2010:382), the [OSCURATO:PERSONA] of Justice considered that an adequate review by the courts of the substantive legality of individual restrictive measures had to cover, in particular, verification of the facts and of the evidence and information relied upon in order to adopt those measures (judgment of 30 May 2017, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑45/15 P, EU:C:2017:402, paragraph 38). 64 Furthermore, although the cases giving rise to those judgments concerned asset-freezing measures adopted in the specific context of the fight against international terrorism, it is clear that the obligation to establish that restrictive measures targeting individual persons and entities are well founded, which is derived from that case-law, applies equally with regard to the adoption of asset-freezing restrictive measures aimed at applying pressure on the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], such as those covering the applicant, given, in particular, the individual nature of those restrictive measures and the considerable impact they are likely to have on the rights and freedoms of the persons and entities subject to them (see, to that effect, judgment of 3 September 2008, Kadi and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraphs 361 and 375). 65 In those circumstances, it must be held that the obligation on the [OSCURATO:PERSONA] to provide, in the event of a challenge, information or evidence substantiating the reasons for the adoption of restrictive measures against a natural or legal person was already apparent, at the time when the provisions at issue were adopted, from well-established case-law of the [OSCURATO:PERSONA] of Justice (see, to that effect, judgment of 30 May 2017, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑45/15 P, EU:C:2017:402, paragraph 40). 66 However, while in the case giving rise to the judgment of 25 November 2014, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑384/11, EU:T:2014:986, paragraph 59), the [OSCURATO:PERSONA] found that the [OSCURATO:PERSONA] had committed an infringement although it did not enjoy any discretion, this was due to the fact, as the [OSCURATO:PERSONA] of Justice held in the judgment of 30 May 2017, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (C‑45/15 P, EU:C:2017:402, paragraph 33), that it did not have information or evidence to substantiate the reasons for the adoption of restrictive measures against the applicant. 67 As the [OSCURATO:PERSONA] contends, the situation in the present case is different. In the cases giving rise to the judgments of 23 November 2011, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑341/07, EU:T:2011:687), and of 25 November 2014, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑384/11, EU:T:2014:986), none of the parties to those proceedings had been re-included in the lists of designated persons and entities following those judgments concluding that the [OSCURATO:PERSONA] had made an error of assessment in including them on those lists. Consequently, since [OSCURATO:PERSONA] and [OSCURATO:PERSONA] could not be shown to be covered by the listing criteria, they were entitled not to have restrictive measures imposed on them. 68 In that regard, it is apparent from the wording of the judgment of 14 March 2017, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑346/15, not published, EU:T:2017:164), that the applicant did indeed satisfy the relevant designation criteria when the listing acts were adopted. 69 The applicant’s initial listing was based on the support it provided for nuclear proliferation, a listing criterion provided for in [OSCURATO:PERSONA] 20(1)(b) of [OSCURATO:PERSONA] 2010/413 and [OSCURATO:PERSONA] 23(2)(a) of [OSCURATO:PERSONA] 267/2012. The re-listing decision is also founded on that legal basis and on two separate grounds: one relating to the provision of support by the applicant to the [OSCURATO:PERSONA] and the other relating to the applicant’s involvement in the procurement of prohibited goods and technology. 70 In the context of the re-listing, the [OSCURATO:PERSONA] supplied several documents in support of the matters in that statement of reasons, which also show the applicant’s involvement in proliferation before and during its initial listing. 71 In that regard, the [OSCURATO:PERSONA] produced an article taken from the website of an [OSCURATO:PERSONA] press agency, from March 2011, in which the director of [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (PEDEC) announced the forthcoming signing of a contract for the development of the Darkhovin ([OSCURATO:PERSONA]) oilfield, aimed at eventually raising crude oil production capacity to 260 000 barrels per day, and stated that the applicant would provide financial resources for the project. In addition, an article published at the same time by the same agency announced the issuing of bonds by [OSCURATO:PERSONA] and [OSCURATO:PERSONA], which would be offered, inter alia, by the applicant from March 2011 and which would be used to fund oil industry projects. 72 It follows from this that, at the time when the initial listing acts were adopted in January 2012, the applicant, through its financing of development projects in the oil sector, was involved in the procurement of prohibited goods and technology, which constituted a form of support to the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]’s nuclear-proliferation activities. 73 Consequently, the activities carried out by the applicant when the initial acts including it in the list of designated persons and entities were adopted, in January 2012, fell within the designation criterion relating to the provision of support for the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]’s nuclear-proliferation activities through the involvement in procurement of prohibited goods, in terms of [OSCURATO:PERSONA] 20(1)(b) of [OSCURATO:PERSONA] 2010/413 and [OSCURATO:PERSONA] 16(2)(a) of [OSCURATO:PERSONA] 961/2010 (now [OSCURATO:PERSONA] 23(2)(a) of [OSCURATO:PERSONA] 267/2012). Although the specific contentions set out in the initial statement of reasons were different from the facts mentioned in the statement of reasons of the subsequent re-listing acts of April 2015, the initial listing decision was, nonetheless, based on the same criterion, namely the support provided for the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]’s nuclear-proliferation activities. 74 In other words, if the [OSCURATO:PERSONA] had adduced the evidence mentioned in paragraph 71 above, that would have been sufficient to prove that the applicant provided support for nuclear proliferation by the [OSCURATO:PERSONA] of [OSCURATO:PERSONA]. 75 In that regard, it must be found that the [OSCURATO:PERSONA] did not indeed produce the evidence in the context of the action for annulment of the initial listing acts of January 2012. However, it is settled case-law that the institution the conduct of which is at issue as regards giving rise to non-contractual liability on the part of the [OSCURATO:PERSONA] is, in principle, entitled to rely, by way of defence, on all relevant facts and matters occurring before the action for damages was brought, just as the applicant is entitled to rely on evidence post-dating the occurrence of damage in order to prove the scope and extent of such damage, and that the justification for that possibility for the institution is particularly clear in an area of EU activity such as the CFSP (judgment of 13 December 2017, HTTS v [OSCURATO:PERSONA] , T‑692/15, under appeal, EU:T:2017:890, paragraphs 49 and 50). 76 Thus, in the present action for damages, the [OSCURATO:PERSONA] cannot overlook the relevant reasons and the evidence which the [OSCURATO:PERSONA] has put forward by way of defence, with a view to demonstrating that the requirement which must be met in order for non-contractual liability to arise on the part of the [OSCURATO:PERSONA] was not satisfied. 77 It follows from the foregoing that the infringement found as regards the initial listing acts does not does not amount to a sufficiently serious breach in order to give rise to non-contractual liability on the part of the [OSCURATO:PERSONA]. 78 The action must, therefore, be dismissed in its entirety, without there being any need to examine whether the other conditions for establishing the [OSCURATO:PERSONA] non-contractual liability have been met, or to examine the applicant’s application for a measure of organisation of procedure consisting in the appointment of an expert in order to carry out an accounting valuation of the damage alleged. Costs 79 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure of the [OSCURATO:PERSONA], the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 80 In addition, under [OSCURATO:PERSONA] 138(1) of the Rules of Procedure, the [OSCURATO:PERSONA] and institutions which have intervened in the proceedings are to bear their own costs. 81 Since the [OSCURATO:PERSONA] has applied for costs and the applicant has been unsuccessful, the applicant must be ordered to bear its own costs and to pay those incurred by the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] must bear its own costs. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the action; 2. [OSCURATO:PERSONA] to bear its own costs and to pay those incurred by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]; 3. [OSCURATO:PERSONA] the [OSCURATO:PERSONA] to bear its own costs. [OSCURATO:PERSONA] in open court in Luxembourg on 16 May 2019. E. Coulon A.M. [OSCURATO:PERSONA] * Language of the case: English.
Sentenza Corte di giustizia UE n. 54/2019 — Fons Iuris — Fons Iuris