ECJ upholds freezing of the Melli Bank funds, C-380/09 P

On 03/03/2008 the United Nations Security Council issued Resolution 1803 (2008) calling on “all States to exercise vigilance over [...] Bank Melli [...] in order to avoid such activities contributing to the proliferation sensitive nuclear activities, or to the development of nuclear weapon delivery systems” (§ 17). On 23/06/2008, under Common Position 2008/479/CFSP the EU Council froze the Melli Bank plc funds. The latter is owned by the Melli Bank Iran (بانک ملی ایران‎) that is owned by the Iranian Government (§ 19).

The Melli Bank raised a number of points of law before the EU General Court and, on appeal C-380/09 P, before the ECJ:

1. The Melli Bank maintained that the grammatical structure of legal acts requires giving specific and individualized reasons for freezing its funds (§§ 34-35). The UK based Melli Bank did not participate in nuclear proliferation. The ECJ replied that the fact that the EU Council has the discretion as to by whom the entity is “owned” does not mean that the EU Council also has discretion to assess whether that entity plays a part in nuclear proliferation (§ 42).
2. The Melli Bank pointed that the UN Resolution calls to “exercise vigilance” and not “freeying of funds”. Thus, the EU measure is disproportional (§ 47). The ECJ replied that the UN and the EU are “distinct legal orders” (§ 54), and that the EU freezing serves the “terms and objectives” of the UN vigilance (§ 55). Finally, it cannot be inferred from the UN Resolution that there is no need to freeze the funds (§ 57).
3. The Bank proposed that the proportional measures could be of prior authorization and supervision by an independent agent and of total prohibition of transactions with Iran. The ECJ replied that this argument was mentioned for the first time at the hearing, and therefore could not be taken into consideration (§ 59).
4. According to the Melli Bank the EU General Court changed the burden of proof by requiring the Bank to demonstrate that measures alternative to freezing would be entirely effective (§ 47). The judges reply that a “lack of evidence” does not fall to be reviewed by the ECJ (§ 59).
5. The Melli Bank argues that the competition law entitles it to make submissions to the EU institutions while consideration of the measures (§ 67), that freezing of funds is comparable to criminal penalty, and therefore there is a breach of the presumption of innocence (§ 69). The ECJ interprets that the fact of being “owned” by Iran is a sufficient ground, and it is not “necessary to carry out further review”.

EU General Court: President Gbagbo of Côte d'Ivoire has missed the deadline, Gbagbo, T-348/11

From 2000 to 11/04/2011 Mr Laurent Gbagbo, PhD in history (Paris Diderot), was the President of Côte d'Ivoire. After the elections held on 28/11/2010, the Electoral Commission declared that Mr Alassane Ouattara won with 54,1%, but the Côte d'Ivoire Constitutional Council found fraud and annulled results in 9 regions. In this manner President Gbagbo arrived at 51%. However the EU took the decision to recognise Mr Ouattara as a lawful President. Those events led to a civil war, and on 11/04/2011 the supporters of Ouattara arrested President Gbagbo.

On 06/04/2011 the EU Council declared the Government of President Gbagbo illegitimate and introduced sanctions (including personal ones). On the next day, the respective decision was published in the EU Official Journal. On 07/07/2011 Dr. Gbagbo filed an application for annulment of those measures. The EU General Court replied that he had missed the deadline that was on 01/07/2011, as calculated from the day of publication on 07/04/2011. The argument that no one told Gbagbo about those measures while he was occupied with the civil was in Côte d'Ivoire, didn’t work.

The day of publication in the EU Official Journal becomes thus an absolute start of the deadline calculation.