On 12 May, 2021, Advocate General Hogan delivered his opinion in Case C‑124/20 Bank Melli Iran v. Telekom Deutschland GmbH on the interpretation of the EU blocking statute (Regulation 2271/96 of 22 November 1996 protecting against the effects of the extraterritorial application of legislation adopted by a third country).
The context of the case was the newly reinstated sanctions of the U.S. against Iran. The main issue raised in the case was that of the impact of Article 5 of the blocking statute on the right of EU businesses to terminate private contracts.
Article 5 reads:
No person referred to in Article 11 shall comply, whether directly or through a subsidiary or other intermediary person, actively or by deliberate omission, with any requirement or prohibition, including requests of foreign courts, based on or resulting, directly or indirectly, from the laws specified in the Annex or from actions based thereon or resulting therefrom.
Persons may be authorised, in accordance with the procedures provided in Articles 7 and 8, to comply fully or partially (…).
The German branch of Bank Melli Iran had entered into a framework contract with Telekom Deutschland GmbH which allowed Bank Melli to group all its company connections at various sites in Germany under one contract. In the context of this contractual relationship, Bank Melli ordered different services which formed the exclusive basis of its internal and external communication structures in Germany and were therefore indispensable to its business activities.
After the Trump administration decided that the U.S. would withdraw from the 2015 Joint Comprehensive Plan of Action aimed at controlling Iran’s nuclear programme and lifting economic sanctions against Iran, the U.S. reinstated sanctions against Iran in 2018.
In November 2018, ten days after the new U.S. sanctions entered into force, Telekom Deutschland GmbH terminated its contract with Bank Melli. It gave similar notice to four other German based entities with connections with Iran.
Bank Melli brought proceedings against Telekom Deutschland GmbH in a German court based on the infringement of the EU blocking statute and requesting performance of the contract.
Obligation to Give Reasons to Terminate Contracts
The most far reaching proposition of A.G. Hogan is to consider that the effet utile of Article 5 of the Blocking Statute requires a redistribution of the burden of proof. He opined that private parties terminating contracts in circumstances where they might be subject to foreign sanctions should have a duty to demonstrate that they did not do so because of the said sanctions.
Article 5 would therefore establish a duty to give the reasons for terminating the contract. Article 5 would also require that the reason be precise and objective, so that it could be verified that it was not to comply with the foreign sanction legislation.
AG Hogan explained:
89. (…) it (…) follows from the uncompromising terms of the first paragraph of Article 5 of the EU blocking statute that – in principle, at least – an undertaking seeking to terminate an otherwise valid contract with an Iranian entity subject to the US sanctions must demonstrate to the satisfaction of the referring court that it did not do so by reason of its desire to comply with those sanctions.
Should the CJEU follow A.G. Hogan, a first consequence would be that persons subject to the EU regulation could not rely on their freedom of terminate contracts without giving reasons under the law governing the contract. Article 5 of the blocking statute would establish an obligation to give a reason for terminating, or refusing to enter into, a contractual relationship with a person sanctioned by the relevant foreign legislation.
A second consequence would be that contractual clauses granting broad discretion to a contractual party to terminate the contract on vague regulatory grounds would be unenforceable. A.G. Hogan explained:
In particular, in my view, a person referred to in Article 11 of that statute should not be able to invoke a termination clause for force majeure to justify the termination of the contractual relationship without at least demonstrating that the event constituting force majeure is unrelated to the US sanctions legislation listed in the annex to that statute.
Sanctions: Punishing vs Redressing
Article 5 does not provide sanctions for the obligations that it establishes.
A.G. Hogan concluded that, in principle, it was for each Member State to lay down sanctions for infringements of the provision, and that their margin of discretion would be wide as far as punitive sanctions are concerned.
However, he opined that the margin of discretion of Member States would be very limited for civil sanctions, and that they would be bound to provide full effect to the provision by offering remedies which would put right-holders in the situation they would have been in in the absence of that unlawfulness.
108. Accordingly, I consider that, in the event of a breach of a provision prescribing a rule of conduct which must be complied with on a continuing basis (such as here), the national courts are required to order the infringer to put an end to the breach, on pain of a periodic penalty payment or other appropriate sanction, since only then can the continuing effects of the unlawfulness committed be brought to an end and compliance with EU law fully guaranteed.
The conclusions are long and address a number of other issues.
A.G. Hogan concluded by the following summary:
1) The first paragraph of Article 5 of Council Regulation (EC) No 2271/96 … is to be interpreted as not applying only where an administrative or judicial authority of a country whose laws and regulations are listed in the annex to that regulation has addressed, directly or indirectly, some instructions to a person referred to in Article 11 of that regulation. The prohibition contained in this provision accordingly applies even in the event that an operator complies with such legislation without first having been compelled by a foreign administrative or judicial agency to do so.
2) The first paragraph of Article 5 of Regulation No 2271/96 is to be interpreted as precluding an interpretation of national law under which a person referred to in Article 11 of that regulation may terminate a continuing contractual obligation with a contracting party named on the Specially Designated Nationals and Blocked Persons List held by the US Office of Foreign Assets Control, without ever having to justify its decision to terminate those contracts.
3) The first paragraph of Article 5 of Regulation No 2271/96 is to be interpreted as meaning that, in the event of a failure to comply with the provisions of that article, the national court seised by a contracting party subject to primary sanctions is required to order a person referred to in Article 11 of that regulation to maintain that contractual relationship, even though, first, the second paragraph of Article 5 should be interpreted restrictively, secondly, such an injunction measure is liable to infringe Article 16 of the Charter of Fundamental Rights of the European Union and, thirdly, such a person is therefore liable to be severely penalised by the authorities responsible for applying one of the laws referred to in the annex to that regulation.