JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
14 July 2021 (*)
(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)
In Case T‑246/18,
Maikel José Moreno Pérez, 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 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 Maikel José Moreno Pérez, is the President and former Vice-President of the Tribunal Supremo de Justicia (Supreme Court, Venezuela).
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: ‘5. – Name: Maikel José Moreno Pérez – Identifying information: Date of birth: 12. 12. 1965 – Reasons: President, and former Vice-President, of the Supreme Court of Justice of Venezuela (Tribunal Supremo de Justicia). In these roles, he has supported and facilitated the Government’s actions and policies which have undermined democracy and the rule of law in Venezuela, and is responsible for actions and statements that have usurped the authority of the National Assembly – 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 3502/2018 INIT, and extract 5 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 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, thereby amending the reason for listing another person subject to the restrictive measures at issue. 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.
19 By letter of 7 November 2018, the Council informed the applicant’s representative that the decision had been taken to extend the application of the restrictive measures at issue in respect of the applicant. In addition, the representative was informed of the possibility of submitting an application for revision of that decision to the Council by 23 August 2019. That letter went unanswered.
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 18 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 On 28 March 2019, the Fourth Chamber (former composition) of the General Court decided to open the oral part of the procedure and to set the date for the hearing at a later stage.
25 On 3 May 2019, the parties were informed of the decision of the President of the General Court to attribute the present case to the Judge-Rapporteur pursuant to Article 27(1) of the Rules of Procedure.
26 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. After the parties were invited to express their views and in the absence of any objections on their part, the present case was reassigned to the Seventh Chamber by decision of the President of the General Court of 10 December 2019.
27 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.
28 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.
29 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 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.
30 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.
31 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.
32 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
Admissibility of the modification of the application
33 In his statement of modification, by which the applicant seeks the annulment of Decision 2018/1656 and Implementing Regulation 2018/1653, he submits that, by those two acts, the Council maintained his name on the list in Annex I to Decision 2017/2074 and on the list in Annex IV to Regulation 2017/2063 after his situation was reviewed and for the same reason as that stated for his initial listing. That decision and that implementing regulation had the effect of extending the period during which the restrictive measures at issue apply to him until 14 November 2019.
34 In the context of its observations on the statement of modification, the Council raises a plea of inadmissibility in so far as that statement seeks the annulment of Implementing Regulation 2018/1653, on the ground that the applicant lacks standing to bring proceedings. The Council argues that that implementing regulation does not specifically name the applicant and does not replace a measure of direct and individual concern to him. As a result, the applicant does not have standing to bring proceedings.
35 In its reply to a question asked in the context of measures of organisation of procedure, the Council adds that the periodic review provided for in Article 17(4) of Regulation 2017/2063 does not necessarily lead to the adoption of a new legal act. According to the Council, in the present case, if it had not been necessary to amend the information regarding a person other than the applicant, Implementing Regulation 2018/1653 would not have been adopted. Neither the purpose nor the effect of that act was to maintain the applicant’s name on the list in the annex to Regulation 2017/2063. As a result, the Council submits that the applicant does not have an interest in bringing proceedings against that act.
36 In that regard, it must be observed that the second paragraph of Article 13 of Decision 2017/2074 provides that that decision is to be kept under constant review. Recital 2 of Decision 2018/1656 expressly refers to a review of Decision 2017/2074.
37 By contrast, Implementing Regulation 2018/1653 does not contain such a reference. It cannot, however, be inferred therefrom that the Council did not review the situation and that that absence of review precludes the modification of the application. Article 17(4) of Regulation 2017/2063 provides, in fact, that the list set out in Annex IV thereto is to be reviewed at regular intervals and at least every 12 months. However, the admissibility of an action cannot depend on the Council’s discretion as to whether or not it considers that it has in fact reviewed the retention on the lists at issue of the name of the person concerned, which would be contrary to the principle of legal certainty (judgment of 9 July 2014, Al-Tabbaa v Council, T‑329/12 and T‑74/13, not published, EU:T:2014:622, paragraph 47). The Council cannot therefore claim, in the present case, that it has not reviewed the applicant’s situation, contrary to its obligations, in order to gain an advantage concerning the admissibility of the action brought against Implementing Regulation 2018/1653. Moreover, on account of the fact that the two texts are closely interrelated, it must be held that the review of the situation which the Council acknowledges it carried out in order to adopt Decision 2018/1656 was a necessary preliminary step to the adoption of Implementing Regulation 2018/1653 also.
38 In the light of the foregoing, the pleas of inadmissibility raised by the Council must be rejected and it must be held that the form of order sought in the statement of modification is admissible, including in so far as it covers Implementing Regulation 2018/1653.
Substance
39 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 the defence and his right to effective judicial protection and, second, a ‘manifest error of assessment’.
The first plea in law, alleging an infringement of the obligation to state reasons, of the principle of sound administration and of the rights of the defence and of the right to effective judicial protection
40 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.
41 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 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.
42 The Council disputes the applicant’s arguments.
– Alleged infringement of the obligation to state reasons
43 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).
44 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).
45 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).
46 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).
47 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).
48 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).
49 The present complaint must be examined in the light of those principles.
50 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.
51 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 National Constituent Assembly (‘the 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 President and former Vice-President of the Tribunal Supremo de Justicia (Supreme Court), the applicant could not have been unaware of that context.
52 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.
53 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 responsibility for undermining democracy and the rule of law in Venezuela, since, as President and former Vice-President of the Tribunal Supremo de Justicia (Supreme Court), he facilitated the government’s actions and policies. In addition, he is allegedly responsible for actions and statements that have usurped the authority of the National Assembly.
54 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 to dispute their accuracy and relevance. The applicant was also able to understand and dispute the probative value of the evidence on which the Council based its findings. Moreover, the applicant was able to set out the legal framework safeguarding the independence of the Tribunal Supremo de Justicia (Supreme Court) and its members and the way in which that court functions and submit, having regard to the powers of the President and Vice-President of that court, that he had not signed and had not influenced the decisions of that court referred to by the Council. He was also able to dispute having threatened a former judge of the Tribunal Supremo de Justicia (Supreme Court) in order to obtain her resignation for the purposes of the election of judges favourable to the regime.
55 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.
56 In view of the foregoing, the complaint alleging that the Council infringed its obligation to state reasons must be rejected.
– Alleged infringement of the principle of sound administration, the rights of the defence and the right to effective judicial protection
57 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.
58 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).
59 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).
60 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).
61 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 54 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.
62 Furthermore, if the applicant wished to raise arguments which he had not had the opportunity of relying on in his application because of the allegedly 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.
63 Moreover, the applicant has failed to explain, including at the hearing, what arguments and evidence he could have put forward if he had received the Council’s file earlier.
64 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.
65 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 a ‘manifest error of assessment’
66 The second plea in law is directed against all of the contested acts.
67 The applicant states at the outset that the mere fact that he is the President of the Tribunal Supremo de Justicia (Supreme Court) is not sufficient to prove that, in that role, he has undermined democracy and the rule of law in Venezuela. Inclusion on a list of persons subject to restrictive measures cannot be based on presumptions that are unsubstantiated by the conduct of the persons concerned.
68 The applicant also challenges the Council’s findings based on the fact that he is the President of the Tribunal Supremo de Justicia (Supreme Court) and, more specifically, the fact that, having allegedly signed judgments No 155 of 27 March 2017 and No 156 of 29 March 2017 of that court, which allegedly usurped the authority of the National Assembly, a democratically elected constitutional body, he is responsible for them.
69 The applicant explains in that connection that Venezuela is a democratic State. The Tribunal Supremo de Justicia (Supreme Court) is an independent body which heads the judicial branch of the state and whose members were required to renounce any political militancy.
70 Moreover, the applicant submits that the Tribunal Supremo de Justicia (Supreme Court) is divided into seven Chambers, namely the Full Chamber, the Constitutional Chamber, the Administrative Chamber, the Electoral Chamber, the Civil Chamber, the Criminal Chamber and the Social Chamber. Within the scope of its respective competences, each Chamber gives its judgments independently from the other Chambers. In addition, judgments are deliberated and adopted by the judges making up the competent chamber and are signed by only those judges.
71 In that context, the President and the Vice-President of the Tribunal Supremo de Justicia (Supreme Court) perform two roles: one is judicial, that is, exclusively as a judge of one of the seven Chambers, the other is administrative.
72 As Vice-President and then President, the applicant submits that he therefore assumed exclusively organisational and administrative tasks that were not capable of undermining democracy and the rule of law in Venezuela.
73 As a judge, the applicant submits that, when performing his judicial duties, he does not have any particular influence. He does not have a casting vote in the event of a tie. In addition, he performed those duties solely within the Criminal Chamber and cannot intervene in judicial discussions within the other Chambers.
74 In those circumstances, contrary to the Council’s claims, the applicant submits that he did not sign judgments No 155 and No 156, which were deliberated and handed down by only the members of the Constitutional Chamber, of which the applicant is not a member.
75 In addition, according to the applicant, the Council was not entitled to deduce from a tweet published on the official Twitter account of the Tribunal Supremo de Justicia (Supreme Court), in which the applicant allegedly asserted that the National Assembly was in contempt, that he fully supported the judgments of that court, which undermined the rule of law and democracy in Venezuela.
76 The applicant submits that the Council appears thus to refer, in particular, to judgment No 2 of 11 January 2017 of the Tribunal Supremo de Justicia (Supreme Court), in which its Constitutional Chamber did in fact declare that the National Assembly was in contempt. However, the applicant claims that he did not participate in the adoption of that judgment, nor did he sign it.
77 Furthermore, the interpretation of the Venezuelan Constitution by the Constitutional Chamber is binding on all the Chambers of the Tribunal Supremo de Justicia (Supreme Court) and all the other courts in the country, so that, by the tweet in question, the applicant neither approved nor showed his support for the judgment in question, but merely set out the content thereof.
78 Moreover, the applicant disputes the Council’s claim based on an article reporting on the testimony of a former judge of the Tribunal Supremo de Justicia (Supreme Court) who claims that she was threatened by the applicant into resigning, so that a judge favourable to the then President of Venezuela could be elected. According to the applicant, there is nothing in that article which incriminates him aside from its heading and subheading. The threats in question are in reality attributed to the former President of the Tribunal Supremo de Justicia (Supreme Court).
79 The Council disputes the applicant’s arguments.
80 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).
81 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).
82 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).
83 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).
84 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)). 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).
85 It is in the light of those principles that it must be assessed whether the reasons for the applicant’s inclusion in and retention on the lists at issue – on the basis of the fact that, having regard to his roles as President and former Vice-President of the Tribunal Supremo de Justicia (Supreme Court), he supported and facilitated the government’s actions and policies which have undermined democracy and the rule of law in Venezuela, and is responsible for actions and statements that have usurped the authority of the National Assembly – are vitiated by errors of assessment.
86 As set out 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.
87 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.
88 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.
89 Having thus set out the general context, it must be stated that the applicant does not dispute that he is the President and former Vice-President of the Tribunal Supremo de Justicia (Supreme Court). In addition, he states that that court is the highest court of law in Venezuela.
90 The Council based its finding that the applicant had ‘supported and facilitated the Government’s actions and policies which have undermined democracy and the rule of law in Venezuela’ and was ‘responsible for actions and statements that have usurped the authority of the National Assembly’ on, inter alia, the fact that, as President of the Tribunal Supremo de Justicia (Supreme Court), he was responsible for that court’s actions and that he had, more specifically, signed and expressed support for judgments No 155 of 27 March 2017 and No 156 of 29 March 2017 that usurped the authority of the National Assembly, a democratically elected constitutional body. In that regard, in its file, the Council relied on, inter alia, a report on the Tribunal Supremo de Justicia (Supreme Court) by the International Commission of Jurists, a press release from the Inter- American Commission on Human Rights and an article published on 30 March 2017 on the website ‘efectococuyo.com’.
91 According to those sources, by its judgment No 155 of 27 March 2017, the Constitutional Chamber of the Tribunal Supremo de Justicia (Supreme Court) gave the then President of Venezuela the power to take measures in various areas and review legislation, including the Organic Law against organised crime and the financing of terrorism, the Anti-Corruption Law, the Criminal Code, the Organic Code of criminal procedure and the Code of Military Justice. According to those sources, that judgment also refused to recognise the parliamentary immunity of the members of the National Assembly.
92 Also according to the sources in question, the Constitutional Chamber of the Tribunal Supremo de Justicia (Supreme Court), by its judgment No 156 of 29 March 2017, eliminated the requirement laid down in the national legislation to obtain authorisation from the National Assembly in order to enter into public-private ventures in the field of hydrocarbons. In that judgment, the Constitutional Chamber also stated that it would itself exercise legislative powers so long as the situation of contempt and invalidity of the National Assembly’s proceedings continued.
93 The applicant does not dispute that reading of judgments No 155 and No 156.
94 It is clear that the judgments of the Tribunal Supremo de Justicia (Supreme Court) referred to above constituted support for the actions and policies of the government which undermined democracy and the rule of law in Venezuela and usurped the authority of the National Assembly. It is apparent from paragraphs 91 and 92 above that, by judgments No 155 and No 156, the Constitutional Chamber of the Tribunal Supremo de Justicia (Supreme Court) stripped the National Assembly of its prerogatives in favour of the then President of Venezuela and of that chamber and, moreover, refused to recognise the parliamentary immunity of the members of the National Assembly.
95 However, as the applicant submits, without it being disputed by the Council, the Tribunal Supremo de Justicia (Supreme Court) is made up of seven chambers and, in so far as the applicant does not carry out his judicial duties in the Constitutional Chamber that handed down judgments No 155 and No 156, he did not sign those judgments.
96 In that connection, it must be observed that the case file does not contain evidence showing that the applicant signed judgments No 155 and No 156. It is apparent from the content of those judgments, provided by the applicant, that he was not one of the members of the chamber that delivered them and he had not signed them.
97 However, it must be emphasised that it is apparent from the Council’s file that, according to the report on Venezuela in 2016 by the non-governmental organisation Human Rights Watch, the Tribunal Supremo de Justicia (Supreme Court) lacked independence from the government. The report states that the Venezuelan Government had taken control of that court in 2004 and that its members have since openly rejected the principle of separation of powers and publicly pledged their commitment to advancing that government’s political agenda. Moreover, that lack of independence of the judiciary in general and of the Tribunal Supremo de Justicia (Supreme Court) in particular is also observed in the report by the International Commission of Jurists on that court and in a press release from the Inter-American Commission on Human Rights, referred to in paragraph 90 above, on which the Council also relied.
98 In addition, in that report of the International Commission of Jurists it was stated that judgments No 157 and No 158 of the Tribunal Supremo de Justicia (Supreme Court) of 1 April 2017 were intended to ‘clarify’ judgments No 155 and No 156 which, as the applicant confirmed at the hearing, were heavily criticised by public opinion and sparked demonstrations in Venezuela. It is apparent from that report and from the applicant’s statements at the hearing that the Tribunal Supremo de Justicia (Supreme Court) adopted those ‘clarifications’ following a political request by the executive, the National Defence Council in particular, convened and headed, in accordance with Article 323 of the Constitution, by the then President of Venezuela, in order to settle the controversies generated by judgments No 155 and No 156. The applicant’s arguments put forward at the hearing, namely that the national rules – which he did not however provide – empowered the Tribunal Supremo de Justicia (Supreme Court) to clarify its judgments, do not call into question the fact that those clarifications were given in response to political demands external to that court and to the judiciary in general.
99 It follows that the Tribunal Supremo de Justicia (Supreme Court) cannot be regarded as independent of the influence of the Venezuelan Government.
100 In such specific circumstances, where the judiciary has lost its independence, it must be taken into account that presidents of courts – more specifically, those of the highest courts – are the main means by which the executive can exert influence on the treatment of cases before the courts.
101 As a result, the fact that the applicant holds the highest position at the highest court in Venezuela can be regarded as an indication of the support he provides to government policies, in so far as he is the central figure of that court.
102 Thus, in the context of institutional imbalance, as described in paragraphs 97 and 98 above, the applicant cannot claim, relying solely on formal texts, that he was not in a position to influence, as a matter of fact, the judgments of the Constitutional Chamber of the Tribunal Supremo de Justicia (Supreme Court), particularly as regards highly political decisions which subsequently led to the intervention of the then President of Venezuela (see paragraph 98 above). Moreover, as the applicant himself emphasises, the judgments of the Constitutional Chamber and, therefore, judgments No 155 and No 156 bind the entirety of the Tribunal Supremo de Justicia (Supreme Court).
103 In addition, the Council also took into account the official Twitter account of the Tribunal Supremo de Justicia (Supreme Court), which tweeted a quote by the applicant publicly supporting the decisions of that court. More specifically, the Council attached a link to a tweet of 4 April 2017 in which the applicant had stated, as he also confirmed, that the Tribunal Supremo de Justicia (Supreme Court) had held that ‘at present the [National Assembly] [was] in contempt and [lacked] legality and legitimacy to remove judges’.
104 The applicant, considering that the Council referred, inter alia, to judgment No 2 of 11 January 2017 of the Tribunal Supremo de Justicia (Supreme Court), in which the Constitutional Chamber of that court had indeed declared that the National Assembly was in contempt, emphasises again that he did not participate in the adoption of that judgment, nor did he sign it. He also submits that the interpretation of the Constitution by the Constitutional Chamber is binding on everyone and, by the tweet in question, he did not express approval of or support for the judgment in question, but merely set out its content.
105 Nonetheless, having regard to the applicant’s role as President of the Tribunal Supremo de Justicia (Supreme Court), it must be stated that, by setting out the content of such decisions of that court in a tweet, he gave it his backing, despite the fact that they affected the status of the National Assembly and, therefore, the balance of powers in Venezuela. In other words, that tweet appears to support the pro-government precedent of the Constitutional Chamber of the Tribunal Supremo de Justicia (Supreme Court) that usurped the authority of the National Assembly.
106 It must also be added that, given the controversial nature of judgments No 155 of 27 March 2017 and No 156 of 29 March 2017, acknowledged by the applicant at the hearing, the tweet in question was made subsequent, first, to the executive’s request for ‘clarification’ of those judgments and, secondly, to the delivery of judgments No 157 and No 158 of 1 April 2017 adopted for that purpose. Therefore, the applicant cannot deny that, in such circumstances, that tweet, published only three days later, namely on 4 April 2017, could be perceived as an expression of his support for the pro-government precedent of the Constitutional Chamber.
107 Lastly, it is apparent from the report on the Tribunal Supremo de Justicia (Supreme Court) by the International Commission of Jurists, cited in paragraph 90 above, that two former judges of that court have declared that they were pressured to resign in order to make it possible to elect in their place judges who were favourable to the regime.
108 In that context, the Council contends that it is apparent from an article published on 3 March 2016 on the website ‘noticierodigital.com’, cited in paragraph 78 above, that the applicant, then Vice-President of the Tribunal Supremo de Justicia (Supreme Court), had pressured one of the judges referred to in paragraph 107 above in order to obtain her resignation and make it possible to elect judges favourable to the regime.
109 In that regard, the applicant merely maintains that, aside from its heading and subheading, nothing in that article incriminates him and the threats in question are in fact attributed to the former President of the Tribunal Supremo de Justicia (Supreme Court).
110 Irrespective of its heading and subheading, that article contains a link to the video hosting website ‘YouTube’ where the express statements to that effect of the former judge of the Tribunal Supremo de Justicia (Supreme Court) are available. Those statements incriminate the applicant and suggest that he acted on the orders of the government. The applicant did not dispute those declarations or the reliability of that link.
111 The applicant submits that, in accordance with Article 254 of the Constitution and Article 37(5) of the Organic Law on the Tribunal Supremo de Justicia (Supreme Court), the latter is an independent body whose members must renounce any political militancy.
112 Admittedly, those laws are intended to organise the independence of the Tribunal Supremo de Justicia (Supreme Court). However, although those laws cannot be disregarded, the question raised by the grounds of the contested acts is different. The matter in question, in particular, is whether, on the facts, it is established that the Tribunal Supremo de Justicia (Supreme Court) was an independent court and whether, in carrying out his duties as president and former vice-president of that court, the applicant is responsible for the acts attributed to him by the Council.
113 In the light of the considerations set out in paragraphs 80 to 112 above in the context of the present plea, it must be held that the Council did not commit an error of assessment when it found that the applicant, having regard to his roles as President and former Vice-President of the Tribunal Supremo de Justicia (Supreme Court) and in carrying out his duties, supported and facilitated the government’s actions and policies which undermined democracy and the rule of law in Venezuela, and was responsible for actions and statements that have usurped the authority of the National Assembly.
114 The second plea in law must therefore be rejected.
115 Accordingly, as the first plea in law has also been rejected, the action must be dismissed in its entirety.
Costs
116 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 Maikel José Moreno Pérez to pay the costs.
da Silva Passos | Reine | Truchot |
Delivered in open court in Luxembourg on 14 July 2021.