JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
14 July 2021 (*) (1)
(Common foreign and security policy – Restrictive measures taken with regard to the situation in Venezuela – Freezing of funds – Lists of persons, entities and bodies covered by the freezing of funds and economic resources – Inclusion of the applicant’s name on the lists – Retention of the applicant’s name on the lists – Obligation to state reasons – Rights of the defence – Principle of sound administration – Right to effective judicial protection – Error of assessment – Freedom of expression)
In Case T‑248/18,
Diosdado Cabello Rondón, residing in Caracas (Venezuela), represented by L. Giuliano and F. Di Gianni, lawyers,
applicant,
v
Council of the European Union, represented by S. Kyriakopoulou, P. Mahnič, V. Piessevaux and A. Antoniadis, acting as Agents,
defendant,
APPLICATION based on Article 263 TFEU and seeking annulment, first, of Council Decision (CFSP) 2018/90 of 22 January 2018 amending Decision (CFSP) 2017/2074 concerning restrictive measures in view of the situation in Venezuela (OJ 2018 L 16 I, p. 14) and of Council Decision (CFSP) 2018/1656 of 6 November 2018 amending Decision (CFSP) 2017/2074 concerning restrictive measures in view of the situation in Venezuela (OJ 2018 L 276, p. 10) and, second, of Council Implementing Regulation (EU) 2018/88 of 22 January 2018 implementing Regulation (EU) 2017/2063 concerning restrictive measures in view of the situation in Venezuela (OJ 2018 L 16 I, p. 6), and of Council Implementing Regulation (EU) 2018/1653 of 6 November 2018 implementing Regulation (EU) 2017/2063 concerning restrictive measures in view of the situation in Venezuela (OJ 2018 L 276, p. 1), in so far as those acts concern the applicant,
THE GENERAL COURT (Seventh Chamber),
composed of R. da Silva Passos, President, I. Reine (Rapporteur) and L. Truchot, Judges,
Registrar: B. Lefebvre, Administrator,
having regard to the written part of the procedure and further to the hearing on 3 September 2020,
gives the following
Judgment
Background to the dispute
1 The applicant, Mr Diosdado Cabello Rondón, was a member of the Venezuelan National Constituent Assembly (‘the Constituent Assembly’) before becoming the President thereof. He was also the First Vice-President of the United Socialist Party of Venezuela (PSUV) which is the party in power in that state. He claims to be a commentator, journalist and entrepreneur in the entertainment industry. He has his own weekly television broadcast, entitled Con el mazo dando.
Implementation of the system of restrictive measures:Decision (CFSP) 2017/2074 and Regulation (EU) 2017/2063
2 On 13 November 2017, the Council of the European Union adopted Decision (CFSP) 2017/2074 concerning restrictive measures in view of the situation in Venezuela (OJ 2017 L 295, p. 60). The reason for adopting that decision, according to recital 1 thereof, was the continuing deterioration of democracy, the rule of law and human rights in Venezuela.
3 Decision 2017/2074 contains, in essence, first, a prohibition on exporting to Venezuela arms, military equipment or any other equipment that might be used for internal repression, as well as monitoring equipment, technology or software and, secondly, a prohibition on providing financial, technical or other services in relation to such goods and technologies.
4 Article 6(1) of Decision 2017/2074 provides, in addition, as follows:
‘Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of:
(a) natural persons responsible for serious human rights violations or abuses or the repression of civil society and democratic opposition in Venezuela; or
(b) natural persons whose actions, policies or activities otherwise undermine democracy or the rule of law in Venezuela;
as listed in Annex I.’
5 Article 7 of Decision 2017/2074 provides:
‘1. All funds and economic resources belonging to or owned, held or controlled by:
(a) natural or legal persons, entities or bodies responsible for serious human rights violations or abuses or the repression of civil society and democratic opposition in Venezuela;
(b) natural or legal persons, entities or bodies whose actions, policies or activities otherwise undermine democracy or the rule of law in Venezuela;
as listed in Annex I, shall be frozen.
2. All funds and economic resources belonging to or owned, held or controlled by natural or legal persons, entities and bodies associated with the persons, entities or bodies referred to in paragraph 1, as listed in Annex II, shall be frozen.
3. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in Annex I or II.
…’
6 Article 8 of Decision 2017/2074 reads as follows:
‘1. The Council, acting by unanimity upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, shall establish and amend the lists in Annexes I and II.
2. The Council shall communicate the decision referred to in paragraph 1, including the grounds for the listing, to the natural or legal person, entity or body concerned, either directly, if the address is known, or through the publication of a notice, providing such person, entity or body with an opportunity to present observations.
3. Where observations are submitted, or where substantial new evidence is presented, the Council shall review the decision referred to in paragraph 1 and inform the natural or legal person, entity or body concerned accordingly.’
7 The second paragraph of Article 13 of Decision 2017/2074 provides that the decision is to be kept under constant review and is to be renewed, or amended as appropriate, if the Council deems that its objectives have not been met.
8 On the date when Decision 2017/2074 was adopted, Annexes I and II thereto did not yet contain the name of any person or entity.
9 On the basis of Article 215 TFEU and Decision 2017/2074, on 13 November 2017 the Council adopted Regulation (EU) 2017/2063 concerning restrictive measures in view of the situation in Venezuela (OJ 2017 L 295, p. 21). Regarding the freezing of funds of the persons concerned, that regulation reproduces, in essence, the provisions of Decision 2017/2074. In particular, Annexes IV and V to the regulation correspond, respectively, to Annexes I and II to Decision 2017/2074. Pursuant to Article 17(4) of that regulation, those two annexes are to be reviewed at regular intervals and at least every 12 months.
10 On the date when Regulation 2017/2063 was adopted, Annexes IV and V thereto did not yet contain the name of any person or entity.
11 The first paragraph of Article 13 of Decision 2017/2074 provided, in its initial version, that that decision was to apply until 14 November 2018.
12 By contrast, no expiry date was specified in Regulation 2017/2063.
Inclusion of the applicant’s name on the lists: Decision (CFSP) 2018/90 and Implementing Regulation (EU) 2018/88
13 On 22 January 2018, the Council adopted Decision (CFSP) 2018/90 amending Decision 2017/2074 (OJ 2018 L 16 I, p. 14). On the same day, the Council adopted Implementing Regulation (EU) 2018/88 implementing Regulation 2017/2063 (OJ 2018 L 16 I, p. 6). That decision and that implementing regulation (together, ‘the initial acts’) were published that day in the Official Journal of the European Union. Recital 4 of the initial acts states that ‘in view of the continuing deterioration of the situation in Venezuela, seven persons [had to] be included in the list of natural and legal persons, entities and bodies subject to restrictive measures’ in Annex I to Decision 2017/2074 and Annex IV to Regulation 2017/2063. The initial acts therefore amended those annexes. The applicant’s name was thus included in them as follows: ‘7. – Name: Diosdado Cabello Rondón – Identifying information: Date of birth: 15.4.1963 – Reasons: Member of the Constituent Assembly and First Vice President of the United Socialist Party of Venezuela (PSUV). Involved in undermining democracy and the rule of law in Venezuela, including by using the media to publicly attack and threaten political opposition, other media and civil society – Date of listing: 22.1.2018’.
14 On 23 January 2018, a notice for the attention of the persons subject to the restrictive measures provided for in Decision 2017/2074, as amended by Decision 2018/90, and in Regulation 2017/2063, as implemented by Implementing Regulation 2018/88, concerning restrictive measures in view of the situation in Venezuela was published in the Official Journal (OJ 2018 C 23, p. 4).
15 By email of 20 February 2018, the applicant’s representative asked the Council to provide access to the file containing the evidence, documents and information justifying the initial acts. The Council acknowledged receipt of that request the following day.
16 By email of 3 April 2018, the Council sent the applicant’s representative the two documents on which the initial acts were based, namely a working document, dated 22 March 2018, bearing the reference WK 3504/2018 INIT, and extract 7 of an annex to a document dated 27 March 2018 bearing the reference COREU CFSP/0702/17.
17 In response to a request for clarification from the applicant’s representative, on 6 April 2018 the Council explained that the document COREU CFSP/0702/17 in fact dated from 6 December 2017 but that, since it had had to be declassified due to the request for access, it bore the date 27 March 2018.
Events subsequent to the bringing of the present action
18 By letter of 18 September 2018, the Council informed the applicant’s representative that it was intended to extend, with amended reasons, the application of the restrictive measures at issue in respect of the applicant. Consequently, he was invited to submit any observations he may have by 9 October 2018. That letter went unanswered.
19 On 6 November 2018, Council Decision (CFSP) 2018/1656 amending Decision 2017/2074 (OJ 2018 L 276, p. 10) extended the application of the restrictive measures until 14 November 2019, including in respect of the applicant. Decision 2018/1656 also replaced item 7 in Annex I to Decision 2017/2074: ‘7. – Name: Diosdado Cabello Rondón – Identifying information: Date of birth: 15.4.1963 – Reasons: President of the Constituent Assembly and First Vice President of the United Socialist Party of Venezuela (PSUV). Involved in undermining democracy and the rule of law in Venezuela, including by using the media to publicly attack and threaten political opposition, other media and civil society – Date of listing: 22.1.2018’. The only amendment made was to update the function of the applicant, who had become the President of the Constituent Assembly. On 6 November 2018, Council Implementing Regulation (EU) 2018/1653 implementing Regulation 2017/2063 (OJ 2018 L 276, p. 1) also amended to the same effect item 7 of Annex IV to the latter regulation.
20 On 7 November 2018, a notice for the attention of the persons subject to the restrictive measures provided for in Decision 2017/2074, as amended by Decision 2018/1656, and in Regulation 2017/2063, as implemented by Implementing Regulation 2018/1653, concerning restrictive measures in view of the situation in Venezuela was published in the Official Journal(OJ 2018 C 401, p. 2).
Procedure and forms of order sought
21 By application lodged at the Court Registry on 16 April 2018, the applicant brought the present action.
22 The written part of the procedure was closed on 11 December 2018.
23 By separate document lodged at the Court Registry on 17 January 2019, the applicant modified his application, on the basis of Article 86 of the Rules of Procedure of the General Court, in order to seek in addition the annulment of Decision 2018/1656 and Implementing Regulation 2018/1653, in so far as those acts concern him. The Council submitted its observations on the statement of modification to the Court Registry on 15 February 2019.
24 Following a change in the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was transferred to the Seventh Chamber, to which this case was consequently assigned.
25 By letter of 20 December 2019, the parties were invited to submit their observations on the potential joinder of Cases T‑245/18, Benavides Torres v Council, T‑246/18, Moreno Pérez v Council, T‑247/18, Lucena Ramírez v Council, T‑248/18, Cabello Rondón v Council, T‑249/18, Saab Halabi v Council and T‑35/19, Benavides Torres v Council, for the purposes of the oral part of the procedure. The parties replied that they did not have any objections to such a joinder.
26 By decision of 28 January 2020, the President of the Seventh Chamber of the General Court decided to join those cases (‘the joined cases’) for the purposes of the oral part of the procedure. On the same day, the oral part of the procedure was opened and the date for the hearing was fixed for 23 April 2020.
27 On 7 February 2020, in the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, the Court asked the parties in the joined cases to answer certain questions in writing before the hearing and orally at the hearing. The parties in the joined cases replied to the questions for written answer within the prescribed period. On 13 March 2020, the Court invited them to submit observations on the other party’s replies. The parties in the joined cases submitted their observations within the prescribed period
28 As the hearing, originally scheduled for 23 April 2020, was postponed on account of the health crisis, the parties in the joined cases presented oral argument and replied to the Court’s oral questions at the hearing on 3 September 2020.
29 The applicant claims that the Court should:
– annul the initial acts, and Decision 2018/1656 and Implementing Regulation 2018/1653 (together, ‘the contested acts’) in so far as their provisions concern the applicant;
– order the Council to pay the costs.
30 The Council contends that the Court should:
– dismiss the action;
– in the alternative, if the restrictive measures were to be annulled in respect of the applicant, order that the effects of Decision 2018/1656 be maintained in relation to him until the partial annulment of Implementing Regulation 2018/88 takes effect;
– order the applicant to pay the costs.
Law
31 In support of his action, the applicant relies on two pleas in law alleging, first, infringement of the obligation to state reasons, of the principle of sound administration, and of his rights of defence and his right to effective judicial protection and, second, a ‘manifest error of assessment’.
32 In his statement of modification of his application, the applicant states that the ‘second’ plea of his application, alleging a ‘manifest error of assessment’, may be transposed to his claim for annulment of Decision 2018/1656 and of Implementing Regulation 2018/1653.
33 However, in that statement, the applicant states that the fact that he is now President of the Constituent Assembly ‘is insufficient … to prove that he is responsible for the (alleged) human rights violations or misconduct (allegedly) taking place in Venezuela (especially for those attributed to the [Constituent Assembly])’. Therefore, the arguments set out in the statement of modification of his application, which concerns only Decision 2018/1656 and Implementing Regulation 2018/1653 must be considered to be an extension of the ‘second’ plea.
34 It follows that that ‘second’ plea, as amended by the statement of modification of the application, may be analysed as having two parts directed, first, against the contested acts and, second, against Decision 2018/1656 and Implementing Regulation 2018/1653, both seeking to show that the evidence advanced by the Council does not substantiate the grounds given in the contested acts and, therefore, the Council committed ‘manifest errors of assessment’.
35 In addition, in the context of the ‘second’ plea, the applicant invokes a breach of the freedom of expression. It is appropriate to examine that as a third plea, in that it seeks to show that the conduct of the applicant which is criticised is covered by that freedom.
36 It is accordingly appropriate to examine the three pleas described above.
The first plea in law, alleging an infringement of the obligation to state reasons, of the principle of sound administration, of the rights of the defence and of the right to effective judicial protection
37 It should be noted at the outset that the first plea in law is directed only against the initial acts, no such plea having been raised in the statement of modification.
38 First, the applicant alleges, in essence, that the initial acts do not contain an adequate statement of reasons. In that regard, he submits that the grounds set out in Annex I to Decision 2017/2074 and in Annex IV to Regulation 2017/2063, as amended by the initial acts, were too vague for him to be able to fully assess which specific facts the Council was referring to. Second, he submits that, despite the steps he took on 20 February 2018, the Council did not grant him access to the documents justifying the initial acts until 3 April thereafter, namely at a time when he had only 13 calendar days or 9 working days remaining to lodge his action. The applicant therefore concludes that the Council did not satisfy, within a reasonable time, his request for access to its file and thus infringed the principle of sound administration, his rights of defence and his right to effective judicial protection.
39 The Council contests the applicant’s arguments.
Alleged infringement of the obligation to state reasons
40 In accordance with the case-law, the obligation to state the reasons on which an act adversely affecting an individual is based, as provided for in the second paragraph of Article 296 TFEU and enshrined in Article 41(2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’), is a corollary of the principle of respect for the rights of the defence. It should be noted in that regard, that the specific purpose for the statement of reasons is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, second, to enable those Courts to review the legality of that act (see judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 29 and the case-law cited, and of 26 October 2016, Kaddour v Council, T‑155/15, not published, EU:T:2016:628, paragraphs 56 and 57 and the case-law cited).
41 The statement of reasons for an act adversely affecting an individual must set out the facts and the legal considerations that have decisive importance in the context of that act (see judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 30 and the case-law cited).
42 As regards restrictive measures adopted under the common foreign and security policy (CFSP), where the person concerned is not afforded the opportunity to be heard before the adoption of an initial decision to freeze funds, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling the person concerned, at least after that decision has been adopted, to make effective use of the legal remedies available to him or her in order to challenge the lawfulness of that decision (judgments of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 51, and of 26 October 2016, Kaddour v Council, T‑155/15, not published, EU:T:2016:628, paragraph 58).
43 Consequently, unless overriding considerations involving the security of the European Union and its Member States or the conduct of their international relations militate against the provision of certain information, the Council is required to advise the person or entity concerned by the restrictive measures of the actual specific reasons why it considers that those measures had to be adopted. It must thus mention the matters of fact and law on which the legal justification for the relevant measures depends and the considerations which led it to adopt those measures (judgment of 9 July 2009, Melli Bank v Council, T 246/08 and T‑332/08, EU:T:2009:266, paragraph 144).
44 The statement of reasons must, however, be appropriate to the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him or her to understand the scope of the measure taken that concerns him or her (judgments of 15 November 2012, Council v Bamba, C 417/11 P, EU:C:2012:718, paragraphs 53 and 54, and of 25 April 2013, Gossio v Council, T‑130/11, not published, EU:T:2013:217, paragraphs 45 and 46).
45 It must also be borne in mind that the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (see judgment of 30 January 2019, Stavytskyi v Council, T 290/17, EU:T:2019:37, paragraph 57 and the case-law cited).
46 The present complaint must be examined in the light of those principles.
47 In the present case, as regards the reasons why the Council considered that the applicant should specifically be the subject of restrictive measures, the statement of reasons, reproduced in paragraph 13 above, which is set out in points 3 of Annex I to Decision 2017/2074 and of Annex IV to Regulation 2017/2063, as amended by the initial acts, identifies, contrary to what is claimed in essence by the applicant, the actual specific information which shows, according to the Council, that the applicant was involved in undermining democracy and the rule of law in Venezuela.
48 It should be noted that the preambles to the initial acts refer to Decision 2017/2074 and Regulation 2017/2063 respectively. In recitals 1 and 5 to 8 of Decision 2017/2074, and in recitals 1 and 2 of Regulation 2017/2063, the Council set out the general context which led it to lay down restrictive measures against Venezuela and certain Venezuelan persons or entities. It follows that that general context was characterised by the continuing deterioration of democracy, the rule of law and human rights in Venezuela as a result, inter alia, of the decision of the authorities to elect a Constituent Assembly, which exacerbated the crisis in Venezuela and undermined other institutions provided for in the Venezuelan Constitution, such as the National Assembly. Furthermore, in view of his role as a member of the Constituent Assembly and the First Vice-President of the United Socialist Party of Venezuela (PSUV), the applicant could not have been unaware of that context.
49 Furthermore, as indicated in paragraphs 4 and 5 above, in accordance with Article 6(1) and Article 7(1) of Decision 2017/2074, the general listing criterion established by the Council covers, inter alia, natural persons ‘whose actions, policies or activities otherwise undermine democracy or the rule of law in Venezuela’. That criterion is also reproduced in Article 8(3) of Regulation 2017/2063.
50 Therefore, a reading of the reasons given for the applicant’s listing makes it possible to understand that the specific and concrete reasons which led the Council to adopt restrictive measures against the applicant are based on the applicant’s alleged involvement, in his capacity as a member of the Constituent Assembly and the First Vice-President of the PSUV, in undermining democracy and the rule of law in Venezuela, in particular by using the media to publicly attack and threaten political opposition, other media and civil society.
51 Moreover, it should be noted that the fact that the applicant was able to understand the reasons which, according to the Council, justified the adoption of restrictive measures against him is confirmed by the wording of the second plea in the present action. The applicant was able to identify the specific facts alleged against him and dispute their accuracy and to refute the probative value and objectivity of the evidence upon which the Council relied. The applicant was also able to set out the principles governing the freedom of expression which he relies on in his capacity as a commentator, journalist and entrepreneur in the entertainment industry. The applicant was also able to describe the content of his television programme and the requirements for that type of programme in order to dispute that, through it, he undermined democracy and the rule of law.
52 It follows that the statement of reasons for the initial acts enabled the applicant to understand and challenge the reasons for including his name on the lists at issue.
53 In view of the foregoing, the complaint alleging that the Council infringed its obligation to state reasons must be rejected.
The alleged infringement of the principle of sound administration, the rights of the defence and the right to effective judicial protection
54 As a preliminary point, it must be noted that the applicant’s complaint that the Council infringed the principle of sound administration, his right to effective judicial protection and his rights of defence is not supported by arguments specific to each of those infringements, but merely refers to a common line of argument. In those circumstances, those alleged infringements must be examined together.
55 It must be recalled that respect for the rights of the defence, which is affirmed in Article 41(2)(a) of the Charter, to which the EU Treaty attaches the same legal value as the Treaties, includes, inter alia, the right to have access to the file, whereas the right to effective judicial protection, which is affirmed in Article 47 of the Charter, requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him or her is based (see, to that effect, judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 55).
56 More specifically, the rights of the defence and the right to effective judicial protection require that the EU authority which adopts restrictive measures communicate to the person concerned the evidence on which those measures are based or grant him or her the right to be informed of that evidence within a reasonable period after those measures were enacted (see, to that effect, judgments of 21 March 2014, Yusef v Commission, T‑306/10, EU:T:2014:141, paragraph 90, and of 13 December 2016, Al-Ghabra v Commission, T‑248/13, EU:T:2016:721, paragraph 49).
57 In that regard, it must be noted that, in the case of an initial decision to freeze funds, the Council is not obliged to inform the person or entity concerned beforehand of the grounds on which that institution intends to rely in order to include that person or entity’s name in the relevant list, in order to ensure the surprise effect necessary for the effectiveness of such a measure. In such a case, it is, as a rule, enough if the institution notifies the person or entity concerned of the grounds and affords it the right to be heard at the same time as, or immediately after, the decision is adopted (see, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 61).
58 In the present case, in the particular context of the initial inclusion on the lists at issue requiring a surprise effect, irrespective of whether the Council communicated its file to the applicant within a reasonable period of time, it must be determined whether the applicant was not in a position to challenge the evidence in that file before the Court (see, by analogy, judgments of 18 September 2014, Georgias and Others v Council and Commission, T‑168/12, EU:T:2014:781, paragraph 106, and of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 153). It must be held that the applicant was put in a position to be able to challenge the evidence in that file before the Court, as is apparent from the arguments relied on in the application described in paragraph 51 above, in the context of which the applicant calls into question the relevance and probative value of the evidence used by the Council in its file.
59 Furthermore, if the applicant wished to raise arguments which he had not had the opportunity of relying on in his application because of the alleged late communication of the file by the Council, he could have put forward any additional arguments in his statement of modification of the application. In that statement, the applicant claimed that the errors made in the adoption of the initial acts had been repeated by the Council when it adopted Decision 2018/1656 and Implementing Regulation 2018/1653. He merely claimed that the second plea, as raised in the application, could simply be transposed to his application for annulment of the latter decision and of the latter implementing regulation, with the sole reservation that ‘new arguments’ that he relied on in order to dispute that his new role as President of the Constituent Assembly, noted in those acts, at the time of retaining his name on the lists at issue, could justify the restrictive measures taken against him.
60 Moreover, the applicant has still failed to explain, including at the hearing, what arguments and evidence he could have advanced if he had received the Council’s file earlier.
61 Consequently, the applicant has not shown that the allegedly late communication of the Council’s file infringed his rights of defence, his right to effective judicial protection and the principle of sound administration.
62 In the light of the foregoing considerations, the present complaint and, therefore, the first plea in law in its entirety must be rejected
The second plea in law, alleging ‘manifest errors’ in the assessment of the evidence
63 In the context of this plea in law, first, the applicant alleges a ‘manifest error of assessment’ as regards the contested acts concerning the inclusion and retention of his name of the lists at issue. Second, he raises, in his statement of modification of the application, a ‘manifest error of assessment’ in that Decision 2018/1656 and Implementing Regulation 2018/1653 take into consideration the fact that the applicant has become President of the Constituent Assembly.
Preliminary observations
64 It should be borne in mind that the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires, inter alia, that the Courts of the European Union are to ensure that the decision, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern the question of whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 64).
65 To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent European Union authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see judgment of 18 July 2013, Commission and Others v Kadi, C 584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 120 and the case-law cited; judgment of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 65).
66 That is because it is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 121, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 66).
67 For that purpose, there is no requirement that that authority produce before the Courts of the European Union all the information and evidence underlying the reasons alleged in the act sought to be annulled. It is however necessary that the information or evidence produced should support the reasons relied on against the person concerned (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 122, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 67).
68 So far as concerns the types of evidence which may be relied on, the prevailing principle of EU law is the unfettered evaluation of the evidence available (judgment of 6 September 2013, Persia International Bank v Council, T‑493/10, EU:T:2013:398, paragraph 95 (not published)).
69 In that regard, it is important to recall that, in the absence of investigative powers in third countries, the assessment of the EU authorities must rely on publicly available sources of information, reports, articles in the press, or other similar sources of information (see, to that effect, judgment of 14 March 2018, Kim and Others v Council and Commission, T‑533/15 and T‑264/16, EU:T:2018:138, paragraph 107). It is clear from the case-law that, inter alia, in some situations, the Courts of the European Union may take into account reports from international organisations (see, to that effect, judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 48).
70 Furthermore, as indicated in paragraphs 4 and 5 above, in accordance with Article 6(1) and Article 7(1) of Decision 2017/2074, the general criterion established for the purposes of inclusion in the lists at issue covers, inter alia, natural persons ‘whose actions, policies or activities otherwise undermine democracy or the rule of law in Venezuela’. That criterion is also set out in Article 8(3) of Regulation 2017/2063.
71 In that regard, in the first place, it should be borne in mind that, as regards the general context in Venezuela, it is clear from recitals 1 and 5 to 8 of Decision 2017/2074 and recitals 1 and 2 of Regulation 2017/2063 that the contested acts were adopted on account of the continuing deterioration of democracy, the rule of law and human rights in Venezuela, as a result of, inter alia, the use of excessive force, and the repression of civil society and democratic opposition. Recital 6 of Decision 2017/2074 states that on 2 August 2017, the European Union expressed its deep regret at the decision of the Venezuelan authorities to continue with the election of a Constituent Assembly, a decision that durably worsened the crisis in Venezuela and risked undermining other legitimate institutions foreseen by the Venezuelan Constitution, such as the National Assembly.
72 That general context of the situation in Venezuela was also referred to by the Council before the Court, without it being disputed by the applicant. The Council thus recalled that, after December 2015, following elections to the National Assembly, a coalition of opposition parties had won a majority of the seats. In January 2016, the then President of Venezuela declared a state of emergency in Venezuela and ruled by decree. By April 2017, demonstrations had taken place almost daily for several months, which resulted in the death and injury of many civilians and thousands of arrests. In May 2017, the then President of Venezuela announced the creation of a Constituent Assembly, the members of which were elected on 30 July 2017 through an electoral process which was boycotted by the opposition
73 It is in the light of those considerations that it is appropriate to examine whether the reasons for the applicant’s inclusion in and retention on the lists at issue, which alleged that, taking into account his role as member then President of the Constituent Assembly, and as the First Vice-President of the PSUV, he was involved in undermining democracy and the rule of law in Venezuela, in particular by using the media to publicly attack and threaten political opposition, other media and civil society.
The first part, directed against the contested acts, alleging a ‘manifest error of assessment’
74 The applicant submits that the fact that he has his own television programme does not prove that he has used the media to publicly attack and threaten the political opposition, other media and civil society, or that he has undermined democracy and the rule of law in Venezuela. In particular, the applicant alleges that the Council has misconstrued the content of the articles on which it relied. Thus, the Council relied on the heading of an article published by the newspaper Impactocna stating that the applicant had issued threats against the Office of Prosecutor General of Venezuela, whereas that was not the meaning of the content of that article. That article referred to a press conference given by the applicant in the context of indications that the Prosecutor General had failed to fulfil her duties. In that context, the applicant submits that he merely asserted that it would be for the Constituent Assembly to determine whether the Public Prosecutor’s Office turned its back on the country or was one that fulfilled its interests, without there being any threat.
75 Next the Council alleges that the applicant threatened the media by accusing journalists in particular of complicity with a bomb attack that killed seven members of the Bolivarian National Guard. However, in an article in the newspaper El Nuevo Siglo, on which the Council relied, the applicant asserted that he merely echoed a statement made by the Commander of the Bolivarian National Guard that journalists knew that a bomb had been there and had not said anything, instead waiting for it to detonate.
76 The applicant therefore concludes that the Council failed to conduct a careful and impartial assessment of the evidence or, at the very least, that its assessment is manifestly erroneous.
77 The Council contests the applicant’s arguments.
78 In the present case, as regards in the first place the evidence put at issue by the applicant, it must be recalled, first, that, the article published on the website ‘impactocna.com’, on 31 May 2017, sets out a statement by the applicant made to journalists according to which, when installed, the Constituent Assembly should decide whether or not to allow the Prosecutor General’s Office or any constituent power to ‘turn its back on the country’. Also in that statement, the applicant asserted that the Prosecutor General’s Office supported the violence and made itself complicit in the murders, referring to the fact that it had criticised the conduct of the police forces during the demonstrations that shook the country. Moreover, in response to the positions inter alia of the Prosecutor General which opposed the government and the calling of the Constituent Assembly, the applicant added that there were enough traitors and that one was ‘either with the country or with the opposition who wanted to destroy it’. The applicant has not contested the content of that article but merely states that he had simply stated that it was for the Constituent Assembly to determine whether the Public Prosecutor wished to serve the interests of the country, without there being any threat. However, the Council cannot be criticised for having deducted from that article that the applicant had threatened the Public Prosecutor’s Office by stating, in essence, that the Constituent Assembly would decide whether or not to retain that service, that it would not accept the presence of traitors, and also that the Public Prosecutor’s Office supported violence and had become an accomplice to murders.
79 Second, according to the article in El Nuevo Siglo of 13 July 2017 the applicant repeated on his own account a statement of the General Commander of the Bolivarian National Guard that journalists knew that there was a bomb, which, on exploding, had in fact injured seven soldiers, but had not alerted them, instead waiting for it to detonate. According to the same article, the applicant added, first, that the journalists present were complicit in that explosion taking place and, second, that the journalists who were at the place of the explosion were there because they knew what was going to happen. Thus, contrary to the applicant’s submission, the Council was able to infer from that article that the applicant had accused those journalists of complicity in a bomb attack perpetrated against the Bolivarian National Guard, despite the fact that he had reacted to a statement made by the General Commander of the Bolivarian National Guard.
80 In the second place, it must be observed that the applicant has not raised any challenge regarding the other evidence upon which the Council relied contained within its file.
81 First, the applicant has not presented arguments regarding a 2017 report on Venezuela by the non-governmental organisation Freedom House, which criticised him for having used, in his television programme, information obtained from the illegal recording of private conversations, in order to attack his political opponents.
82 Secondly, the applicant has moreover not commented on the report of the Secretary General of the Organization of American States (OAS) on Venezuela, of 19 July 2017, accusing the applicant of inciting brutal repression through incendiary rhetoric, of giving instructions to deploy combat corps against demonstrations by the opposition, of publicly threatening opposition leaders by stating ‘we know where you live’, of publicly exhibiting, in his weekly television programme Con el Mazo Dando, a ‘manual for revolutionary fighters’ which included personal information on opposition leaders including their place of residence, in order to intimidate the opposition and, potentially, endanger its members. That latter information was also given in articles in the newspaper Infobae which appeared on 18 and 20 April 2017.
83 Thirdly, the applicant has not criticised the press release by the organisation Transparency International which disclosed intimidatory manoeuvres by the applicant during his television programme and on its website, towards movements denouncing human rights violations in Venezuela.
84 Fourthly, the applicant has not disputed information that appeared in the OAS report of 14 March 2017 according to which he was responsible for acts of torture.
85 Fifthly, the applicant has not contested an article in the newspaper Efecto Cocuyo, of 19 July 2017, from which the Council concluded that the applicant had threatened judges who were to be nominated to the Tribunal Supremo de Justicia (Supreme Court, Venezuela) by the National Assembly.
86 In view of all the elements set out in paragraphs 78 to 85 above, it must be held that the Council did not commit an error of assessment in concluding that, taking into account his duties as a member of the Constituent Assembly and the First Vice-President of the PSUV, the applicant was involved in undermining democracy and the rule of law in Venezuela, including by using the media to publicly attack and threaten the political opposition, other media and civil society.
87 It follows that the first part of the second plea in law is unfounded.
The second part of the second plea in law, directed against Decision 2018/1656 and Implementing Regulation 2018/1653, alleging a ‘manifest error of assessment’
88 In his statement of modification of the application, the applicant disputes the retention by Decision 2018/1656 and by Implementing Regulation 2018/1653 of his name on the lists at issue. He submits that it is apparent from the wording of the reasons given in those acts that the Council attaches particular importance to the fact that he has become President of the Constituent Assembly. According to the applicant, the mere fact that he is the President of the Constituent Assembly is insufficient to justify the retention of his name on the lists at issue and to prove that his actions and policies, in the context of that role, undermined democracy and the rule of law in Venezuela.
89 In that connection, the applicant claims that the President of the Constituent Assembly is, as such, vested merely with organisational and administrative powers relating to the management and functioning of the Constituent Assembly and that he has neither a ‘qualified vote’ nor a right of veto. That role thus is insufficient to prove that his actions undermined democracy and the rule of law in Venezuela. According to the applicant, the inclusion on the lists at issue on account of links with a body suspected of having undermined democracy or violated human rights cannot be based on presumptions that are not substantiated by the conduct of the person concerned.
90 The Council contests the applicant’s arguments.
91 It should be observed that while, as the applicant submits, Decision 2018/1656 and Implementing Regulation 2018/1653 amended the reasons for his inclusion on the lists at issue by substituting for his role as member of the Constituent Assembly that of President of that assembly, the other reasons for inclusion remained identical such that it was merely an updating of the information in order to take into account the change of role of the applicant that occurred after his inclusion on those lists.
92 Hence, the complaint, that the applicant draws from the fact that Decision 2018/1656 and Implementing Regulation 2018/1653 refers to his new role as President of the Constituent Assembly, cannot lead to the annulment of those two acts to the extent that it is not clear from the file that that fact is the only reason for his name being retained on the lists at issue. The Council states in its observations on the statement of modification, without it being disputed by the applicant, that the retention of his name on the lists at issue continued to be justified on the basis of the file that had provided the initial basis for including his name on those lists.
93 Moreover, the fact that the applicant took on more important duties within the Constituent Assembly cannot call into question the retention of his name on the lists at issue. Restrictive measures are of a precautionary and, by definition, provisional nature, the validity of which always depends on whether the factual and legal circumstances which led to their adoption continue to apply and on the need to persist with them in order to achieve their objective. It is thus for the Council, in the course of its periodic review of those restrictive measures, to conduct an updated assessment of the situation and to appraise the impact of such measures, in order to determine whether they have made it possible to attain the objectives pursued by the initial inclusion of the names of the persons and entities concerned on the list at issue or whether the same conclusion in respect of those persons and entities can still be drawn (judgment of 12 February 2020, Amisi Kumba v Council, T‑163/18, EU:T:2020:57, paragraph 58 and 59). Therefore, the fact that the applicant was nominated President of that assembly cannot, in itself, preclude the retention of his name on the lists at issue. On the contrary, the exercise of the more important role within that assembly together with the acts undermining of the rule of law and democracy committed by the applicant while he carried out roles of lesser importance within that assembly (see paragraph 86 above) justifies the retention of the applicant on the lists at issue.
94 Consequently, as with the conclusions reached on the first part of this plea in law, the present part thereof must be rejected.
95 In the light of the foregoing considerations, the second plea in law must be rejected.
The third plea in law, alleging a breach of the freedom of expression
96 According to the applicant, the contested acts constitute an unlawful restriction on his freedom of expression, a freedom which he may rely on in his capacity as a commentator, journalist and entrepreneur in the entertainment industry. He submits that that right covers in particular his statements broadcast in the context of his weekly television programme entitled Con el Mazo Dando.
97 With a view to demonstrating that the contested acts are unlawful, the applicant claims that the Venezuelan Constitution guarantees extensive freedom of expression and the right to information. In addition, the Ley de Responsabilidad Social en Radio, Televisión y Medios Electrónicos (Law on Social Responsibility in radio, television and electronic media) organises the provision of telecommunication services on the basis of that freedom of expression.
98 The applicant also refers to Article 11 of the Charter and to Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) and the case-law of the European Court of Human Rights (‘the ECtHR’).
99 The Council contests the applicant’s arguments.
100 It should be recalled that respect for fundamental rights is required of all actions of the European Union, including those in the area of CFSP as is apparent from the combined provisions of Articles 21 and 23 TEU (see judgment of 27 September 2018, Ezz and Others v Council, T‑288/15, EU:C:2018:619, paragraph 58 and the case-law cited). Given that the freedom of expression and to information is guaranteed by Article 11 of the Charter and, under the following conditions, by Article 10 ECHR, it is necessary to verify whether the contested acts comply with that right.
101 As regards Article 10 ECHR, it must be observed that, admittedly, that convention is not, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law. Consequently, the examination of the validity of an act of EU secondary legislation must be carried out solely in the light of the fundamental rights guaranteed by the Charter. However, it should be recalled, on the one hand, that, under Article 6(3) TEU, fundamental rights recognised by the ECHR constitute general principles of EU law and, on the other hand, that it follows from Article 52(3) of the Charter that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR. According to the explanations relating to that provision, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purpose of interpreting it, the meaning and scope of the guaranteed rights are determined not only by the text of the ECHR but also, in particular, by the case-law of the ECtHR. It is also apparent from those explanations that Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed by the ECHR, without thereby adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union. Moreover, it must be pointed out that that equivalence between the freedoms guaranteed by the Charter and those guaranteed by the ECHR has been formally expressed in relation to freedom of expression (see judgment of 31 May 2018, Korwin-Mikke v Parliament, T‑770/16, EU:T:2018:320, paragraph 38 and the case-law cited).
102 The text itself of Article 11(1) of the Charter and of Article 10(1) ECHR provides that ‘everyone has the right to freedom of expression’. The ECtHR has already held that the freedom of expression constitutes one of the essential foundations of a democratic society and that no distinction is made in that convention according to the nature of the aim pursued or the role played by natural or legal persons in the exercise of that freedom (ECtHR, 28 September 1999, Öztürk v. Turkey, CE:ECHR:1999:0928JUD002247993, § 49).
103 It should be borne in mind that the ECtHR places particular weight on the role played by journalists as ‘watchdogs’ of society in general and democracy in particular. It recommends ‘the greatest care’ when it is necessary to assess the validity of restrictions on their freedom of expression (see, to that effect, ECtHR, 24 June 2014, Roșiianu v. Romania, CE:ECHR:2014:0624JUD002732906, § 61). It also stresses that audiovisual media, such as radio and television, have a particularly important role to play in that regard. Because of their power to convey messages through sound and images, such media have a more immediate and powerful effect than print. The function of television and radio as familiar sources of entertainment in the intimacy of the listener or viewer’s home further reinforces their impact (ECtHR, 17 September 2009, Manole and Others v. Moldova, CE:ECHR:2009:0917JUD001393602, § 97).
104 Nevertheless, the ECtHR considers that the right of journalists to impart information on issues of general interest requires that they should act in good faith and on an accurate factual basis and provide ‘reliable and precise’ information in accordance with the ethics of journalism. Article 10(2) ECHR, underlines that freedom of expression carries with it ‘duties and responsibilities’, which also apply to the media even with respect to matters of serious public concern (see, ECtHR, 17 December 2004, Pedersen and Baadsgaard v. Denmark, CE:ECHR:2004:1217JUD004901799, § 78 and the case-law cited). It follows from the case-law of the ECtHR that the fact that audiovisual media have effects that are often more immediate and powerful than print media is a factor to be taken into consideration when assessing the ‘duties and responsibilities’ referred to above (see, to that effect, ECtHR, 16 June 2015, Delfi AS v. Estonia, CE:ECHR:2015:0616JUD006456909, § 134).
105 Furthermore, the ECtHR has held that there is little scope under Article 10(2) ECHR for restrictions on political expression or on debate on questions of public interest. Expression on matters of public interest is in principle entitled to strong protection, by contrast with that which promotes or justifies violence, hatred, xenophobia or other forms of intolerance, which is normally not protected. It is in the nature of political speech to be controversial and often virulent, but that does not diminish its public interest, provided that it does not cross the line and turn into a call for violence, hatred or intolerance (ECtHR, 15 October 2015, Perinçek v. Switzerland, CE:ECHR:2015:1015JUD002751008, §§ 197, 230 and 231; see also, to that effect, ECtHR, 8 July 1999, Sürek v. Turkey (N° 1), CE:ECHR:1999:0708JUD002668295, §§ 61 and 62). According to the ECtHR, in order to determine whether the statements as a whole could be regarded as incitement to violence, it was necessary to have regard to the words used and the context within which they were broadcast (see, to that effect, ECtHR, 6 July 2010, Gözel and Özer v. Turkey, CE:ECHR:2010:0706JUD004345304, § 52). In particular, if those statements were made against a tense political or social background, that court has generally accepted that some form of interference with such statements may be justified under Article 10(2) ECHR (see, to that effect, ECtHR, 15 October 2015, Perinçek v. Suisse, CE:ECHR:2015:1015JUD002751008, § 205).
106 For the application of those principles to this case, it is necessary to have regard to the context of the present case, which has specific characteristics distinguishing it from those that allowed the ECtHR to develop its case-law (see, to that effect, judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 93).
107 It must be emphasised that the principles set out in the case-law of the ECtHR were established in view of situations in which a state, which had acceded to the ECHR, imposed restrictive measures, often of a penal nature, on a person who had made statements or undertaken actions considered unacceptable to that state, and that person invoked the freedom of expression as a defence against that state (judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 94).
108 By contrast, in the present case, the applicant is a Venezuelan citizen, resident in Venezuela, who exercises political functions in his own country and has considerable access to the audiovisual media in that country.
109 That is the context in which the applicant invokes the right to freedom of expression. Thus, he does not rely on that right in order to defend himself against the Venezuelan State, but rather to protect himself against restrictive measures, of a precautionary, rather than penal, nature, which the Council adopted in reaction to the prevailing situation in Venezuela (see, to that effect and by analogy, judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 97).
110 It is in the light of all of those principles and all of those considerations that the present plea must be examined.
111 It must be emphasised that the applicant was included and retained on the lists at issue in his capacity as a leading Venezuelan political figure, for having publicly attacked and threatened the political opposition, media and civil society. That ground allowed the Council to apply the criterion laid down in Article 6(1)(b) of Decision 2017/2074, for including the names of natural persons whose actions, policies or activities otherwise undermine democracy or the rule of law in Venezuela.
112 It must be observed that the media interventions made by the applicant on which the Council relied in order to justify the contested acts disclose, inter alia, his political acts and statements during demonstrations, before the press and at press conferences.
113 It follows that the applicant was made the subject of the restrictive measures at issue in his capacity as a political figure who undermined democracy and the rule of law by making public and targeted threats against the political opposition, media and civil society.
114 As regards the applicant’s argument that he may rely on his status of commentator, journalist and entrepreneur in the entertainment industry, it should be observed that his weekly television programme, the sole evidence moreover of the status of journalist upon which he relies for his benefit, appears to be an extension of his political activities. In fact, as is clear from paragraphs 81 to 83 above, the applicant has used his programme to attack his political opponents and to give instructions as to actions against the opposition. Furthermore, as stated in paragraph 112 above, the applicant’s actions considered by the Council do not concern his television programme alone. In any event, it follows from the case-law of the ECtHR that the principles relating to journalists’ good faith and ethical duties that they are required to respect in order to be able to rely on greater protection from interference in their freedom of expression (see paragraph 104 above) apply equally to other persons who engage in public debate (see, to that effect, ECtHR, 15 February 2005, Steel and Morris v. United Kingdom, CE:ECHR:2005:0215JUD006841601, § 90, and 29 November 2005, Urbino Rodrigues v. Portugal, CE:ECHR:2005:1129JUD007508801, § 25). Thus, those principles are relevant as regards the applicant’s situation, who undoubtedly engaged in the public debate taking place in Venezuela.
115 It is clear from an examination of the case file that, without taking on the ‘duties and responsibilities’ referred to in the ECtHR case-law, the applicant freely made use of the media in order to publicly threaten and intimidate the political opposition, other media and civil society.
116 In particular, the applicant accused journalists of complicity in a bomb attack on the National Guard. In addition, he has not denied having engaged in intimidation on his website with regard to movements denouncing human rights violations in Venezuela, or having used, in his television programme, information derived from the unlawful recording of private conversations in order to attack political opponents. Nor did he dispute the information that he incited brutal repression through incendiary rhetoric, gave instructions to deploy combat corps against the demonstrations by the opposition, publicly threatened opposition leaders by declaring ‘we know where you live’, publicly exhibited a ‘manual for revolutionary fighters’ that contained personal information about opposition leaders, including in particular their place of residence, in order to intimidate the opposition. The applicant has furthermore not disputed information that appeared in the OAS report of 14 March 2017 according to which he was involved in acts of torture.
117 Therefore, it must be held that the acts of the applicant examined by the Council in its file constitute an incitement to violence, hatred and intolerance, within the meaning of the case-law referred to in paragraph 105 above, such that those acts cannot benefit from the enhanced freedom of expression which protects, in principle, statements made in the political context. Those acts are, in fact, genuine attacks that undermine democracy and the rule of law in Venezuela.
118 Consequently, the applicant’s arguments based on his role as journalist relating to the freedom of expression enjoyed by journalists must be rejected.
119 Moreover, it is true that, as noted in paragraph 102 above, ‘everyone’ enjoys freedom of expression. In addition, in the present case, the restrictive measures imposed on the applicant may lead to restrictions on the applicant’s freedom of expression since they were decided upon by the Council on account, inter alia, of some of his comments and may therefore deter him from expressing his views in similar terms. However, it must be observed that the freedom of expression does not constitute an unfettered prerogative and may be limited, under the conditions laid down in Article 52(1) of the Charter.
120 In order to comply with EU law, a limitation on the freedom of expression must satisfy three conditions. First, the limitation must be ‘provided for by law’. In other words, the EU institution adopting measures liable to restrict a person’s freedom of expression must have a legal basis for its actions. Secondly, the limitation in question must be intended to achieve an objective of general interest, recognised as such by the European Union. Thirdly, the limitation in question must not be excessive (see judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 69 and the case-law cited).
121 As regards the first condition, it should be noted that, in the present case, the limitation is ‘provided for by law’, in view of the fact that it is set out in acts which are, inter alia, of general application and have clear legal bases in EU law, namely Article 29 TEU and Article 215 TFEU (see, to that effect, judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 72).
122 As regards the second condition, it should be noted that, as is apparent from the examination of the second plea in law, the contested acts comply, as regards the applicant, with the objective referred to in Article 21(2)(b) TEU of consolidating and supporting democracy and the rule of law in so far as they form part of a policy designed to promote democracy in Venezuela.
123 As regards the third condition, it must be noted that it has two aspects: first, the limitations on freedom of expression liable to result from the restrictive measures at issue must be necessary and proportionate to the aim pursued and, second, the essence of that freedom must not be impaired (see, by analogy, judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 84). As regards the first aspect, it must be recalled that the principle of proportionality, as one of the general principles of EU law, requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation in question. Consequently, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 87).
124 In that respect, the case-law makes clear that, with regard to judicial review of compliance with the principle of proportionality, the EU legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in those fields can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 88).
125 In the present case, as regards whether the restrictive measures, such as those imposed on the applicant, are appropriate in the light of an objective of general interest as fundamental to the international community as the protection of democracy and the rule of law, it appears that the freezing of funds, financial assets and other economic resources of persons identified as being involved in the undermining of democracy in Venezuela cannot, as such, be regarded as inappropriate. (see, to that effect, judgment of 12 February 2020, Boshab v Council, T‑171/18, not published, EU:T:2020:55, paragraph 134 and the case-law cited). As has been pointed out in paragraph 117 above, by his incitements to violence, hatred and intolerance, the applicant is the cause of such harm.
126 As regards the necessity of the limitations at issue, it should be noted that alternative and less restrictive measures, such as a system of prior authorisation or an obligation to justify, a posteriori, how the funds transferred were used, are not as effective in achieving the objectives pursued, namely bringing pressure to bear on Venezuelan decision-makers responsible for the situation in Venezuela, particularly given the possibility of circumventing the restrictions imposed (see, to that effect, judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 85).
127 Furthermore, it should be recalled that Article 7(4) of Decision 2017/2074 and Article 9(1) of Regulation 2017/2063 provide for the possibility of authorising the release of certain frozen funds or economic resources in order for the persons concerned to meet basic needs or commitments.
128 Since the limitations on the applicant’s freedom of expression that the restrictive measures at issue are liable to entail are necessary and proportionate to the objective pursued, it is appropriate next to examine whether they impair the essence of that freedom.
129 It must be borne in mind that the restrictive measures at issue provide that, first, Member States are to take the necessary measures to prevent the entry into, or transit through, their territories and, second, all of his funds and economic resources in the European Union are to be frozen.
130 The applicant is a national of a third country to the European Union, Venezuela, and resides in that state, where he pursues his professional activity as a politician also active in the media of that country. Accordingly, the restrictive measures at issue do not undermine the essence of the applicant’s right to exercise his freedom of expression, in particular in the context of his professional activity in the media sector, in the country in which he resides and works (see, by analogy, judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 123).
131 In addition, those measures are by nature temporary and reversible. It follows from Article 13 of Decision 2017/2074 that that decision is kept under constant review (see paragraph 7 above).
132 Therefore, the restrictive measures to which the applicant is subject do not infringe his freedom of expression.
133 Having regard to all of the foregoing, the third plea in law must be dismissed.
134 Since all the pleas in law relied on by the applicant have been rejected, the action must be dismissed in its entirety.
Costs
135 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs in accordance with the form of order sought by the Council.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action;
2. Orders Mr Diosdado Cabello Rondón to pay the costs.
da Silva Passos | Reine | Truchot |
Delivered in open court in Luxembourg on 14 July 2021.