On 12 November, Advocate General Mengozzi (the “AG”) of the European Court of Justice issued his Opinion in respect of Case C‑585/13 P Europäisch-Iranische Handelsbank AG v Council of the European Union, an appeal from the decision of the General Court of the European Union in Case T-434/11. The AG agreed with the General Court that an authorisation of a release of frozen funds by the Bundesbank, Germany’s competent authority in respect of financial sanctions, did not suffice to prove that EIH had not breached or circumvented sanctions.
The AG noted with approval that national authorities did not have the power to “give general approval to a certain category of transactions”. By providing only for very specific situations where frozen funds can be released, the EU legislature intended to render case-by-case assessment as “obviously essential”. Crucially, even national authorisation on an individual basis and “in full accordance” with the relevant EU legislation “does not provide an absolute guarantee, for the decision of a national authority does not automatically confer a stamp of lawfulness”. The AG expressed his concern that national authorities might have insufficient information at their disposal and that, in any event, authorisations must be consistent with the purpose of the EU sanctions regulations. He also said that reliance could not be placed on the minutes of meetings of preparatory bodies, such as Relex, to infer the official EU position.
The Opinion of the AG is persuasive, but not binding on the ECJ. The next step in the case will be a hearing by the ECJ.