Held, (1) allowing the appeal and referring the case back to the General Court of the European Union, that, according to previous authority, the European Union could incur non-contractual liability only if a number of conditions were fulfilled, the first of which had two components, namely that (i) a breach of a rule of EU law intended to confer rights on individuals had occurred and (ii) that breach was sufficiently serious. That condition was established where the breach was one that implied that the institution concerned had disregarded the limits set on its discretion, the factors to be taken into consideration in that connection being, inter alia, the complexity of the situations to be regulated, the degree of clarity and precision of the rule breached and the measure of discretion left by that rule to the EU institution. The requirements of coherence that underlay the system of remedies provided for by the FEU Treaty meant that the methodology for examining the legality of a measure or conduct of an EU institution could not differ according to the type of action and, in an action for damages too, illegality of an act or conduct that could give rise to non-contractual liability of the European Union had to be assessed on the basis of the facts and the law as they stood at the time when the act or conduct was adopted. Since Council Regulation (EU) No 961/2010 was annulled by the General Court which had the force of res judicata, the first component of the first condition for non-contractual liability of the European Union was already fulfilled in relation to that Regulation. In relation to the second component of the first condition, non-contractual liability of the European Union could arise only if the institution concerned manifestly and gravely disregarded the limits set on its discretion. Furthermore, in order to determine whether a breach of a rule of EU law was sufficiently serious, the EU judicature took into account inter alia the complexity of the situations to be regulated, the difficulties in applying or interpreting the legislation and, more particularly, the margin of discretion available to the author of the act in question, which related to the date on which the decision or conduct was adopted by the institution concerned. Thus, non-contractual liability of the European Union could arise only if an irregularity was found that would not have been committed in similar circumstances by an administrative authority exercising ordinary care and diligence. Accordingly, the existence of a sufficiently serious breach of a rule of EU law had necessarily to be assessed on the basis of the circumstances in which the institution acted on the particular date when the breach was committed and when disputing that there was a sufficiently serious breach of that kind, an institution could rely only on the matters which it took into account for the purpose of adopting the act concerned. Finally, if an institution could rely on any relevant matter that was not taken into account when the decision concerned was adopted in order to demonstrate that it did not commit a breach of a rule of EU law sufficiently serious to give rise to non-contractual liability of the European Union, the outcome of the action for damages could vary according to the date on which it was brought. Protection of the rights of the aggrieved person, who had to have sufficient time in which to gather the appropriate information with a view to a possible action, could be undermined if the passage of time after adoption of the decision or conduct in issue were liable to make it more difficult to demonstrate that the institution concerned committed a sufficiently serious breach of a rule of EU law. It followed that the General Court had erred in holding that the Council could rely on any relevant matter that was not taken into account when the applicant was included in the lists in issue in order to demonstrate that it had not committed a breach of a rule of EU law sufficiently serious to give rise to non-contractual liability of the European Union. Accordingly, the first ground of appeal would be upheld (judgment, paras 32–33, 36–39, 41–48, 50, 51, 56).

(2) Since the use by Regulation No 961/2010 of the terms “owned” and “controlled” reflected the need to enable the Council to adopt effective measures against all persons, entities or bodies linked to companies involved in nuclear proliferation, the ownership or control could be direct or indirect. If that link had to be established solely on the basis of the direct ownership or control of those persons, the measures could be circumvented by numerous contractual or de facto possibilities of control, possibilities which would confer on a company opportunities to exert influence over other entities that were as extensive as in the case of direct ownership or control. In the judgment under appeal the General Court held that, whilst the existence of a legal tie or a link in terms of ownership or equity participation in a company could, in certain cases, result in the ability to influence the decisions of the owned or controlled entity, it was not a sine qua non for the exertion of such influence. Accordingly, the General Court did not err in law when holding that a company could be classified as a “company owned or controlled by another entity” where the latter was in a situation in which it was able to influence the decisions of the company concerned, even in the absence of any legal tie between the two economic entities, or any link in terms of ownership or equity participation. It followed that the first complaint in the second ground of appeal would be rejected (judgment, paras 69, 74, 75, 76, operative part, ).