In a series of recent rulings, the European Court of Justice overturned economic sanctions issued by the Council of the European Union (EU) on several Iranian banks and shipping lines. On September 6 and 16, 2013, the Court halted sanctions on Persia International Bank plc, Bank Refah Kargaran, Export Development Bank of Iran, Post Bank Iran, Iranian Offshore Engineering & Construction Co., Iran Insurance Company, Islamic Republic of Iran Shipping Lines (IRISL), Khazar Shipping Lines, and Good Luck Shipping. The EU had sanctioned these entities for their support of nuclear proliferation activities in Iran, but the Court determined that the EU lacked sufficient evidence to introduce such sanctions. The cases are notable for their effect on global sanctions against Iran, although it seems unlikely that U.S. sanctions against Iran would be lifted on similar grounds.
While a full review of the developments in each case would be beyond the scope of this blog article, a few representative matters bear closer scrutiny. In the case against IRISL, the Court noted that the imposition of sanctions was only permitted where a party had allegedly supported nuclear proliferation. The Court indicated that sanctions could not be imposed simply based on a risk that IRISL might provide support for nuclear proliferation in the future. In particular, the Court determined that, while the EU established that IRISL had been involved in exports of arms from Iran, that activity was not alone sufficient to support the imposition of nuclear sanctions. As a result, the Court struck down the sanctions against IRISL.
Similarly, in considering sanctions against Iran Insurance Company, the Court noted that the EU had sanctioned the company for insuring the purchase of helicopter spare parts, electronics, and computers with applications in aircraft and missile navigation, which the EU alleged could be used in violation of nuclear proliferation sanctions. The Court ruled that the EU had relied on "mere unsubstantiated allegations" regarding the provision of insurance services, and annulled the sanctions.
We think these two matters are noteworthy for the types of evidence used to link the activities of the entities to nuclear proliferation. When viewed in the light of a formal court proceeding, it seems somewhat remarkable that the EU sought to tie the insuring of items including helicopter spare parts to nuclear proliferation at all. But, as we have discussed previously in this blog, [ see May 2013 sanctions article] economic sanctions against Iran have been broadly construed and applied by the United States and the EU to target industries integral to the functioning of the Iranian economy. Insofar as a functioning Iranian economy also supports the nuclear development efforts of its government, it may make political sense for the EU and the United States to impose leverage through sanctions. As a legal matter, however, the European Court of Justice rulings suggest that Court will be loathe to tie restrictions on general economic activity to a statute focused on the specific activity of nuclear proliferation.
In other words, the European Court of Justice seems unlikely to defer to the EU, even where European security is at stake. This stands in relatively stark contrast to U.S. courts, which have generally shown deference to government activity on issues of national security. 1
For the time being, U.S. sanctions on Iran and key entities within the Iranian banking and shipping sectors remain in place, with far reaching consequences that will continue to deter Western business from even considering business in Iran. And ultimately, any warming in diplomatic relations between the United States and Iran will likely be more momentous than judicially vacated sanctions. But at a minimum, the European Court of Justice has signaled that EU sanctions are subject to standards of proof that cannot be broadly construed to incorporate all types of economic activity.
1 At least one U.S. court has overturned criminal sanctions charges on individuals by reading regulatory provisions in the accused's favor due to issues of vagueness in the sanctions regulations. [see Clarity Required: US V. Banki]
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