Case C-72/11
Criminal proceedings
against
Mohsen Afrasiabi and Others
(Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf)
(Common foreign and security policy – Restrictive measures against the Islamic Republic of Iran to prevent nuclear proliferation – Regulation (EC) No 423/2007 – Article 7(3) and (4) – Supply and installation of a sintering furnace in Iran – Concept of ‘indirectly making available’ an ‘economic resource’ to persons, entities and bodies listed in Annexes IV and V to that regulation – Concept of ‘circumvention’ of the prohibition on making that resource available)
Summary of the Judgment
1.European Union – Common foreign and security policy – Restrictive measures against Iran
(Council Regulation No 423/2007, Art. 7(3))
2.European Union – Common foreign and security policy – Restrictive measures against Iran
(Council Regulation No 423/2007, Art. 7(4))
1.Article 7(3) of Regulation No 423/2007 of 19 April 2007 concerning restrictive measures against Iran must be interpreted as meaning that the prohibition of indirectly making available an economic resource, within the meaning of Article 1(i) of that regulation, encompasses acts relating to the supply and installation in Iran of a sintering furnace in working condition but not yet ready for use for the benefit of a third party which, acting on behalf, under the control or on the instructions of a person, an entity or a body listed in Annexes IV and V to that regulation, intends to use that furnace to manufacture, for the benefit of such a person, entity or body, goods capable of contributing to nuclear proliferation in that State.
Having regard to the preventive nature of the restrictive measures adopted against the Islamic Republic of Iran, the relevant criterion, for the purposes of the application of the concept of ‘economic resources’, in the context of the prohibition laid down in Article 7(3) of Regulation No 423/2007 is whether it is possible that the asset in question may be used to obtain funds, goods or services capable of contributing to nuclear proliferation in Iran. It is not therefore necessary, for the purposes of the application of Article 7(3) of that regulation, that such an asset be immediately ready for use upon completion of the act at issue.
(see paras 45-47, 57, operative part 1)
2.Article 7(4) of Regulation No 423/2007 concerning restrictive measures against Iran must be interpreted as meaning that:
– it covers activities which, under cover of a formal appearance which enables them to avoid the constituent elements of an infringement of Article 7(3) of the regulation, none the less have the object or effect, direct or indirect, of frustrating the prohibition laid down in that provision;
– the terms ‘knowingly’ and ‘intentionally’ imply cumulative requirements of knowledge and intent, which are met where the person participating in an activity having such an object or such an effect deliberately seeks that object or effect or is at least aware that his participation may have that object or that effect and he accepts that possibility.
(see para. 68, operative part 2)