Language of document : ECLI:EU:T:2021:463

JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

14 July 2021 (*)

(Common foreign and security policy – Restrictive measures taken in view of the situation in Venezuela – Freezing of funds – Lists of persons, entities and bodies subject to the freezing of funds and economic resources – Retention of the applicant’s name on the lists – Error of assessment)

In Case T‑32/19,

Katherine Nayarith Harrington Padrón, residing in Caracas (Venezuela), represented by L. Giuliano and F. Di Gianni, lawyers,

applicant,

v

Council of the European Union, represented by A. Antoniadis, S. Kyriakopoulou and P. Mahnič, acting as Agents,

defendant,

APPLICATION based on Article 263 TFEU and seeking the annulment 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 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 4 September 2020,

gives the following

Judgment

 Background to the dispute

1        The applicant, Ms Katherine Nayarith Harrington Padrón, has held the office of Deputy Prosecutor General of Venezuela since 4 July 2017. Before being appointed to that position, she carried out the duties of prosecutor and of Deputy Minister of the Comprehensive Criminal Investigation System of the Ministry of Interior, Justice and Peace of 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) 2018/901 and Implementing Regulation (EU) 2018/899

13      On 25 June 2018, the Council adopted Decision (CFSP) 2018/901 amending Decision 2017/2074 (OJ 2018 L 160 I, p. 12). On the same day, the Council adopted Implementing Regulation (EU) 2018/899 implementing Regulation 2017/2063 (OJ 2018 L 160 I, p. 5). 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, 11 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. The initial acts therefore amended that annex. The applicant’s name was thus included in them as follows: ‘16 – Name – Katherine Nayarith Harrington Padrón – Identifying information: Deputy Prosecutor General (also translated as Deputy Attorney General) – Date of birth: 5.12.1971 – Reasons: Deputy Prosecutor General (also translated as Deputy Attorney General) since July 2017. Appointed Deputy Prosecutor General by [the Tribunal Supremo de Justicia (Supreme Court, Venezuela)] in violation of the Constitution, rather than by the National Assembly. Responsible for undermining democracy and the rule of law in Venezuela, including by initiating politically motivated prosecutions and failing to investigate allegations of human rights violations by the [regime of the then president] – Date of listing: 25.6.2018’.

14      On 26 June 2018, a notice for the attention of the persons subject to the restrictive measures provided for in Decision 2017/2074, as amended by Decision 2018/901, and in Regulation 2017/2063, as implemented by Implementing Regulation 2018/899, concerning restrictive measures in view of the situation in Venezuela was published in the Official Journal(OJ 2018 C 222, p. 6).

15      By email of 12 July 2018, the Council sent to the applicant’s representative the documents on which the initial acts were based, that is, a working document dated 11 July 2018 bearing the reference COREU CFSP/0250/18 and another document dated 25 June 2018 bearing the reference WK 7761/2018 INIT. By the same letter, the applicant’s representative was informed of the possibility of submitting observations in the context of the annual review of the restrictive measures at issue to the Council until 1 September 2018.

16      By application lodged at the Court Registry on 19 September 2018, the applicant brought an action registered under case number T‑550/18 seeking, in essence, the annulment of the initial acts in so far as they concerned her.

 Retention of the applicant’s name on the lists: Decision (CFSP) 2018/1656 and Implementing Regulation (EU) 2018/1653

17      On 6 November 2018, the Council extended the application of the restrictive measures until 14 November 2019, including in respect of the applicant, by adopting, first, Decision (CFSP) 2018/1656 amending Decision 2017/2074 (OJ 2018 L 276, p. 10) and, second, Implementing Regulation (EU) 2018/1653 implementing Regulation 2017/2063 (OJ 2018 L 276, p. 1) (together, ‘the contested acts’). The contested acts also replaced item 7 in Annex I to Decision 2017/2074 and item 7 of Annex IV to Regulation 2017/2063, thereby amending the reason for listing another person subject to the restrictive measures at issue.

18      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, he was informed of the possibility of submitting an application for revision of that decision to the Council by 23 August 2019.

19      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).

20      By email of 30 November 2018, the applicant’s representative requested the Council to provide access to the file containing the evidence, documents and information justifying the contested acts.

21      By letter of 10 December 2018, the Council informed, inter alia, the applicant’s representative that, in addition to the information sent to the applicant’s representative on 12 July 2018, it did not hold any additional evidence or documents regarding its decision to retain the applicant’s name on the list.

22      By letter of 19 December 2018, the applicant’s representative informed the Council that the applicant no longer held the position of Deputy Prosecutor General since 19 October 2018 and no longer carried out duties related to Venezuelan politics or institutions. For those reasons, he requested the Council to withdraw her name from the lists at issue.

 Procedure and forms of order sought

23      By application lodged at the Court Registry on 17 January 2019, the applicant brought the present action.

24      The written part of the procedure was closed on 25 June 2019.

25      Following a change in the composition of the Chambers of the General Court, in accordance with Article 27(5) of the Rules of Procedure of the General Court, the Judge-Rapporteur was transferred to the Seventh Chamber, to which this case was accordingly assigned.

26      By letter of 28 October 2019, the parties were invited to submit observations on the potential joinder of Cases T‑550/18, Harrington Padrón v Council, T‑551/18, Oblitas Ruzza v Council, T‑552/18, Moreno Reyes v Council, T‑553/18, Rodríguez Gómez v Council, T‑554/18, Hernández Hernández v Council and T‑32/19, Harrington Padrón v Council, for the purposes of the oral part of the procedure. The Council replied that it had no objections to such a joinder. The applicant did not reply within the prescribed period.

27      By decision of 19 November 2019, 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.

28      On 28 January 2020, the Seventh Chamber decided to fix the date for the hearing in the joined cases for 24 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 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.

30      As the hearing, originally scheduled for 24 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 4 September 2020.

31      The applicant claims that the Court should:

–        annul 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 her until the partial annulment of Implementing Regulation 2018/899 takes effect;

–        order the applicant to pay the costs.

 Law

 Admissibility of the action in so far as it seeks the annulment of Implementing Regulation 2018/1653

33      In its defence, the Council submits that the action is inadmissible in so far as it seeks the annulment of Implementing Regulation 2018/1653, on the ground that the applicant lacks standing to bring proceedings. The Council contends that that implementing regulation does not name the applicant specifically and does not replace a measure of direct and individual concern to her. In addition, that implementing regulation does not concern the applicant directly or indirectly and she cannot therefore seek its annulment. As a result, the applicant does not have standing to bring proceedings.

34      The applicant submits that the fact that Implementing Regulation 2018/1653 does not name her specifically does not mean that it does not have an effect on her situation. That implementing regulation is of direct and individual concern to her. In that connection, she observes that that regulation extended de facto the scope of Regulation 2017/2063 to the applicant, meaning that her name was retained on the lists at issue, for the same reasons as those set out in Regulation 2017/2063 as amended by Implementing Regulation 2018/899.

35      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.

36      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 admissibility 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.

37      In the light of the foregoing, the pleas of inadmissibility raised by the Council must be rejected and it must be held that the action is admissible, including in so far as it covers Implementing Regulation 2018/1653.

 Substance

38      In support of her action, the applicant raises a single plea in law alleging a ‘manifest error of assessment’ regarding the retention of her name on the lists at issue. She divides the plea into two parts, alleging, first, that the periodic review of her situation was manifestly inaccurate and incomplete, and, second, that the application of the restrictive measures against her despite the change in her situation after 19 October 2018 is unjustified.

39      It should be noted that the two parts overlap in so far as, in the context of the first and second parts, the applicant submits that the Council committed a ‘manifest error of assessment’ by failing to take into consideration the change in the applicant’s situation after 19 October 2018. They should therefore be examined together.

40      The applicant claims, in essence, that the fact that she exercised the functions of Deputy Prosecutor General in the past and was allegedly responsible for unlawful acts committed in the exercise of that role cannot justify the retention, by the contested acts, of restrictive measures against her.

41      In that regard, the applicant states that the Council has failed to produce any evidence that, after ceasing to perform the role of Deputy Prosecutor General on 19 October 2018, the applicant remained associated with persons, entities or bodies whose actions, policies or activities allegedly undermined democracy and the rule of law in Venezuela. The applicant claims that she no longer holds any public role and no longer has any relationship, whether direct or indirect, with the leaders of Venezuela since 19 October 2018. The applicant highlights that she has also resigned from the United Socialist Party of Venezuela.

42      The applicant also submits that, bearing in mind the preventive nature of the restrictive measures, the adoption of the contested acts solely on the basis of her alleged responsibility for past unlawful acts and of the fact that she held the position of Deputy Prosecutor General is contrary to the objective of those measures. In addition, the applicant submits that the contested acts deprive the periodic review of any effectiveness since they fail to take into account the changes in circumstances with regard to her individual situation.

43      The Council contests the applicant’s arguments.

44      It should be borne in mind that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (‘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).

45      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).

46      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).

47      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).

48      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)).

49      Moreover, according to settled case-law, having regard to the preventive nature of the restrictive measures adopted by the Council, if, in the course of their review of the lawfulness of the contested acts, the Courts of the European Union consider that, at the very least, one of the reasons mentioned in those acts in respect of a person on whom those measures are imposed is sufficiently detailed and specific, that it is substantiated and that it constitutes a sufficient basis in itself to support the decision to include or retain the name of the person on the lists annexed to those acts, the fact that the same cannot be said of other such reasons cannot justify the annulment of those acts (see, to that effect, 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 130; of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 72; and of 26 March 2019, Boshab and Others v Council, T‑582/17, not published, EU:T:2019:193, paragraph 221).

50      It is in the light of those principles that it is appropriate to examine whether the periodic review of the applicant’s situation is vitiated by errors of assessment.

51      At the outset, it must be stated that, in order to challenge the well-founded nature of the retention of her name on the lists, the applicant argues, in essence, that she no longer held the position of Deputy Prosecutor General from 19 October 2018 and no longer had any relationship with the Venezuelan authorities.

52      In the present case, it is apparent from the grounds justifying the retention of the applicant’s name on the lists at issue that, at the time when the contested acts were adopted on 6 November 2018, the reference to the position of Deputy Prosecutor General did not mention the fact that the applicant no longer held that position from 19 October 2018. The Council justified the retention of the applicant’s name on the lists at issue for the same reasons relied on in support of her initial inclusion and on the basis of the same evidence justifying those reasons, as set out in paragraph 21 above.

53      In that connection, it must be borne in mind that 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, paragraphs 58 and 59).

54      It must therefore first be examined whether, at the time when the contested acts were adopted, the Council carried out an updated assessment of the legal and factual circumstances which led to restrictive measures being imposed on the applicant, justifying the retention of those measures having regard to the attainment of the objective they pursue.

55      In that regard, the reason given by the Council for the adoption of the restrictive measures at issue was the continuing deterioration of democracy, the rule of law and human rights in Venezuela, and the Council expressed, inter alia, its concern at the numerous reports of human rights violations and excessive use of force, and called on the Venezuelan authorities to respect the Venezuelan Constitution and the rule of law and to ensure that fundamental rights and freedoms, including the right to peaceful demonstration, are guaranteed (see, in that regard, recitals 1 to 6 of Decision 2017/2074). To that end, they were intended to target persons held to be responsible for serious human rights violations or abuses or the repression of civil society and democratic opposition and persons, entities and bodies whose actions, policies or activities undermine democracy or the rule of law in Venezuela, as well as persons, entities and bodies associated with them (see, in that regard, recital 7 of Decision 2017/2074).

56      For those reasons, the name of the applicant was included in the lists at issue by Decision 2018/901 and Implementing Regulation 2018/899 on the grounds that she was responsible for undermining democracy and the rule of law in Venezuela, by accepting the appointment to the position of Deputy Prosecutor General by the Tribunal Supremo de Justicia (Supreme Court), having initiated politically motivated prosecutions and failing to investigate human rights violations allegedly committed by the regime of the then President of Venezuela. The well-founded nature of the reasons justifying the initial inclusion of the applicant’s name on the lists at issue was confirmed by the Court in today’s judgment, Harrington Padrón v Council (T‑550/18, not published).

57      First of all, it must be borne in mind that, in that judgment, the General Court held that the position of Deputy Prosecutor General is a position of high responsibility within the Office of the Prosecutor General. In those circumstances, the Council was entitled to find that that position was a high-ranking one within the Venezuelan regime and the applicant could be regarded as associated with the Venezuelan regime while carrying out her duties.

58      Next, there was no change in the regime in power in Venezuela while the applicant was associated with the Venezuelan regime as Deputy Prosecutor General.

59      Last, there is no evidence in the file of the present case confirming that the applicant took a position distancing herself from that regime.

60      In that regard, claiming that she had retired from all public roles within the Venezuelan authorities and ceased any political involvement, the applicant relies on the fact that she resigned from the United Socialist Party of Venezuela, that is, the party in power in Venezuela, and on her alleged dismissal from the position of Deputy Prosecutor General.

61      As regards her resignation from the political party in question, it is sufficient to note, as stated by the Council at the hearing, that the applicant had resigned from that party on 3 July 2017, the day before she took up her role as Deputy Prosecutor General. As explained by the applicant herself at the hearing, such resignation is a legal requirement in order to exercise that role. In those circumstances, the mere fact that the applicant resigned from the United Socialist Party of Venezuela does not mean that she had retired from all public roles within the Venezuelan authorities and ceased any political involvement whatsoever.

62      As regards her ceasing to hold the position of Deputy Prosecutor General following her alleged dismissal, the applicant submitted the dismissal letter received and signed by her on 19 October 2018.

63      Admittedly, as recalled in paragraph 53 above, in the course of its periodic review of those restrictive measures, it is for the Council 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.

64      However, it is not apparent from the case file, nor does the applicant – who was questioned specifically on this point at the hearing – claim that she took the decision to cease holding her various public roles in response to the undermining of democracy and the rule of law in Venezuela, in order to distance herself from such actions (see, by analogy, judgments of 26 March 2019, Boshab and Others v Council, T‑582/17, not published, EU:T:2019:193, paragraph 152, and of 12 February 2020, Kande Mupompa v Council, T‑170/18, EU:T:2020:60, paragraph 131 (not published)). Moreover, it is not apparent from the dismissal letter of 19 October 2018 that the applicant ceased to hold her position of Deputy Prosecutor General as a result of her resignation or her disagreement with the policies pursued by the Venezuelan Government. By that letter, the Prosecutor General merely informed that applicant that, pursuant to the provisions cited therein, he was appointing a different person as Deputy Prosecutor General to replace her.

65      In addition, the very short period of time of 18 days between the applicant’s ceasing to hold the position of Deputy Prosecutor General on 19 October 2018 and the adoption of the contested acts on 6 November 2018 must be taken into account. Moreover, the applicant herself informed the Council of the change to her situation only over a month after that date, by letter of 19 December 2018 (see paragraph 22 above), whereas she must be deemed to have known that the Council had to take a decision on whether the restrictive measures at issue were to be maintained by 14 November 2018 at the latest (see paragraph 11 above).

66      Thus, in the specific circumstances of the present case, the fact that the retention of the applicant’s name on the lists at issue was based on positions that she no longer held on the date on which that retention came into effect does not in itself justify the annulment of the restrictive measures at issue in the present case.

67      Having regard to the considerations set out in the context of the examination of the present plea in law, it must be held that the Council did not err in finding that the applicant remained associated with the regime which was in power in Venezuela when she, in the context of her position as Deputy Prosecutor General, undermined democracy and the rule of law in Venezuela.

68      Accordingly, the single plea in law must be rejected and the action must be dismissed in its entirety.

 Costs

69      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, she 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 Ms Katherine Nayarith Harrington Padrón to pay the costs.

da Silva Passos

Reine

Truchot

Delivered in open court in Luxembourg on 14 July 2021.

E. Coulon

 

S. Papasavvas

Registrar

 

President


*      Language of the case: English.