Information;Judgment — ECLI:EU:T:2021:451
Date: 2021-07-14
Language of the case: English
Court formation: Seventh Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - unfounded

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). 74 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). 75 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). 76 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). An appraisal as to whether the inclusion on the lists was well founded must be carried out by examining the evidence not in isolation but in the context in which it fits (see, to that effect, judgments of 21 April 2015, Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 51, and of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 50). 77 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). 78 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). 79 It is in the light of those principles 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, in his capacity as Attorney General of Venezuela, appointed by the Constituent Assembly, and in his former roles as Ombudsman and President of the Republican Moral Council, he undermined democracy and the rule of law in Venezuela by publicly supporting actions against opponents of the government and the withdrawal of competences from the National Assembly, are vitiated by errors of assessment 80 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. 81 In that regard, 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. 82 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. 83 As regards the grounds for including and retaining the applicant on the lists at issue, the Council considered that the applicant had undermined democracy and the rule of law in Venezuela because, in his capacity as Attorney General and in his former roles as Ombudsman and President of the Republican Moral Council, he had publicly supported actions against opponents of the government and the withdrawal of competences from the National Assembly. 84 It is apparent from the Council’s file that, when the contested acts were adopted, in order to justify the inclusion and retention of the applicant on the lists at issue, the Council relied on seven documents, namely six press articles published on various websites between April and August 2017, and an OAS report of 19 July 2017. It should be noted that each of those documents contains a link to the website in question, a brief summary of its content in English, drafted by the Council, and a screenshot of that website. The Council set out those documents in its file in the following order: – an article of 17 August 2017, published on the website ‘www.el-nacional.com’ entitled ‘William Saab threatens prosecutors loyal to Ortega Díaz’; – an article of 23 August 2017, published on the website ‘www.el-nacional.com’ entitled ‘Ortega Díaz: Six corruption cases involving Tarek William Saab’; – an article of 16 August 2017, published on the website ‘www.puntodecorte.com’ entitled ‘Tarek William Saab requested the arrest of Deputy Germán Ferrer and the lifting of his parliamentary immunity’; – an article of 17 June 2017, published on the website ‘www.noticiasaldiayalahora.co’ entitled ‘Tarek William Saab threatens former Secretary of the Moral Council’; – an article of 5 April 2017, published on the website ‘www.deia.com’ entitled ‘The Ombudsman of Venezuela supports the Tribunal Supremo de Justicia (Supreme Court)’; – an article of 5 August 2017, published on the website ‘http://telesurtv.net’ entitled ‘Tarek William Saab appointed as Attorney General of Venezuela’; – an OAS report of 19 July 2017, presented as being the third report of that organisation on the ‘persistent crisis’ in Venezuela after the reports of June 2016 and March 2017. 85 In the first place, it must be noted that, according to the OAS report of 19 July 2017, the elections of the Constituent Assembly were not democratic, since the rules applied infringed the principle of universal suffrage enshrined in the Venezuelan Constitution. In addition, that assembly assumed the power to remove Mrs Luisa Ortega Díaz, who had criticised those elections, from her position as Attorney General, and to replace her with the applicant, even though, according to the Constitution, that power of appointment belongs to the National Assembly (see in particular pages 10 to 13 of that report). 86 It must therefore be held that, as the Council has submitted, by agreeing to be appointed as Attorney General by the Constituent Assembly following the dismissal of Mrs Ortega Díaz for political reasons, the applicant undermined democracy and the rule of law in Venezuela. That unconstitutional appointment could not have been effective if the applicant had not agreed to carry out those duties, while knowing that his appointment followed that dismissal, as is apparent from the press article of 5 August 2017 published on the website ‘http://telesurtv.net’ and included in the Council’s file. 87 In the second place, it must be held that two pieces of evidence set out by the Council in its file when the contested acts were adopted referred to the applicant’s actions against opponents of the government. First, the article of 17 August 2017, published on the website ‘www.el-nacional.com’, refers to ‘threats’ made by the applicant against any person who, within the Office of Public Prosecutions, supported the former Attorney General, Mrs Ortega Díaz. According to that article, during the applicant’s welcome speech before the Constituent Assembly, which appointed him as Attorney General, he declared that ‘anyone who supports the previous management is complicit and must be identified’. 88 The applicant disputes the reliability of El Nacional’s article on the ground that the newspaper which that article comes from is close to the opposition and uses wording which is not neutral by describing the Constituent Assembly as ‘fraudulent’ and the applicant’s appointment as Attorney General as ‘unconstitutional’. However, first, the mere fact that a newspaper is close to the opposition and denounces certain actions taken by a government cannot suffice for the view to be taken that the information which that newspaper reports is not credible. Secondly, as regards the description of the Constituent Assembly as ‘fraudulent’ and the Constituent Assembly’s appointment of the applicant as Attorney General as ‘unconstitutional’, it should be noted that, as stated in paragraph 85 above, the OAS called into question in detail whether the process seeking to establish a Constituent Assembly complied with the Venezuelan Constitution. Consequently, the wording used in the abovementioned article of the newspaper El Nacional does not, in itself, mean that the information reported in that article is unreliable. 89 Secondly, the article of 16 August 2017, published on the website ‘www.puntodecorte.com’, refers to the applicant’s press conference given a few days after he took up office, during which he announced that he had submitted a request to the Constituent Assembly for parliamentary immunity to be removed in respect of the former Attorney General’s spouse, a Deputy of the National Assembly, and for an order to be given for his immediate arrest. 90 In the light of the general context of the situation in Venezuela described in paragraph 82 above, the former Attorney General and her husband could reasonably be regarded by the Council as opponents of the government. The applicant himself admits that the former Attorney General, Mrs Ortega Díaz, publicly and on several occasions denounced the alleged breakdown of democracy in Venezuela and that she strongly criticised the government of the then President of Venezuela. That is all the more so since, first, according to the OAS report of 19 July 2017, the former Attorney General, Mrs Ortega Díaz, after denouncing the process aimed at establishing a Constituent Assembly, was prohibited from leaving the territory and her bank accounts and property were frozen pending a decision by the Tribunal Supremo de Justicia (Supreme Court) on whether she should be put before a court. Secondly, it is apparent from that report that the Tribunal Supremo de Justicia (Supreme Court) conferred on the Ombudsman, namely the applicant, powers of investigation and prosecution normally reserved exclusively for the Attorney General (see pages 9 and 12). Thirdly, that report also sets out a statement by which the United Nations High Commissioner for Human Rights had supported the former Attorney General, Mrs Ortega Díaz, on 30 June 2017. 91 The fact that, in the performance of his duties as Attorney General, the applicant supported actions against opponents of the government is further corroborated by various statements made when he was sworn in before the Constituent Assembly which appointed him. As is apparent from the article published on the website ‘telesurenglish.net’, first, the President of the Constituent Assembly stated, during that swearing-in ceremony, that the role of the Attorney General was to ‘ensure respect for the law, supervise criminal proceedings, protect the rights of victims and combat elements undermining peace and stability in the country’. Secondly, the applicant stated that he was ‘swearing on behalf of [their] comrades, for those who have remained loyal to the flag of their homeland when faced with the worst obstacles, who have not capitulated, who have not fallen, but who have kept that flag high and worthy so that it is not damaged, tarnished, humiliated, or offended’ and that he would honour ‘this historic appointment in the midst of the historic circumstances of the siege that our homeland is under, in the midst of the threats that we have faced with dignity, from the [then] Head of State to the most lowly peasant, fisher, father and mother’. In the light of the general context of the situation in Venezuela, described in paragraph 82 above, the circumstances associated with the applicant’s appointment as Attorney General, as described in paragraphs 85 and 86 above, and the threats made by the applicant against persons supporting the former Attorney General, as described in paragraph 87 above, both the statement of the President of the Constituent Assembly and that of the applicant, set out in the present paragraph, could be regarded as being directed against opponents of the government. 92 In the third place, as regards the applicant’s support for the withdrawal of competences from the National Assembly, it should be noted that the article of 5 April 2017 published on the website ‘www.deia.com’, refers to his statement, according to which the judgments of the Tribunal Supremo de Justicia (Supreme Court) by which the National Assembly and the Deputies had their powers removed could not be regarded as having caused a breakdown in the constitutional order. In the light of the general context of the situation in Venezuela, referred to in paragraph 82 above, such a statement by the applicant, who at the time held the position of Ombudsman of Venezuela, could be regarded by the Council as publicly supporting the decisions of the Tribunal Supremo de Justicia (Supreme Court) which withdrew competences from the National Assembly and opened the way for the establishment of the Constituent Assembly. 93 The applicant does not dispute either the reliability or the content of the article of 5 April 2017 published on the website ‘www.deia.com’. More specifically, the applicant does not deny that he made a statement according to which the judgments of the Tribunal Supremo de Justicia (Supreme Court) could not be regarded as having caused a breakdown in the constitutional order. 94 In that regard, the applicant’s argument that the article of 5 April 2017 referred to a meeting between the President of Venezuela and the then Attorney General, from which, in the applicant's view, it is apparent that the constitutional order was still working and that it was capable of dealing with the critical events that had occurred during the preceding weeks, is irrelevant. Even if it were true that the article in question had mentioned such a meeting and its context, the fact remains that the article also concerned the judgments of the Tribunal Supremo de Justicia (Supreme Court) withdrawing competences from the National Assembly and from which it was apparent that the applicant publicly stated that those judgments could not be regarded as having caused a breakdown in the constitutional order. 95 Furthermore, according to the OAS report of 19 July 2017, the applicant, in his capacity as President of the Venezuelan Republican Moral Council, played an essential role in the rejection of the National Assembly’s requests that members of the Tribunal Supremo de Justicia (Supreme Court) be relieved of their duties on account of their manifest infringements of the Venezuelan Constitution. That statement must be viewed in the light of the information reported in the abovementioned article of ‘deia.com’ of 5 April 2017, according to which the opposition had requested the applicant, in his capacity as President of Citizen Power, to support the removal of seven judges from the Tribunal Supremo de Justicia (Supreme Court), that article stating that ‘according to the Venezuelan Constitution, judges of the Tribunal Supremo de Justicia (Supreme Court) may be relieved of their duties by the National Assembly … in the event of serious misconduct already classified as such by Citizen Power’. 96 Thus, the applicant’s blocking of any proceedings against judges of the Tribunal Supremo de Justicia (Supreme Court) involved in decisions withdrawing competences from the National Assembly, for the benefit of the Constituent Assembly, could be regarded by the Council as being support for the decisions in question. 97 In the light of the considerations set out in the examination of the present plea in law, it must be held that it was on the basis of sufficiently reliable corroborating evidence that the Council concluded, without making an error of assessment, that the applicant had undermined democracy and the rule of law in Venezuela by publicly supporting actions against opponents of the government and the withdrawal of competences from the National Assembly, without it being necessary to examine, in accordance with the case-law cited in paragraph 78 above, the relevance and probative value of the other evidence relied on by the Council. 98 The second plea in law must therefore be rejected. 99 Therefore, since the first plea in law has also been rejected, the action must be dismissed in its entirety. Costs 100 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 Tarek William Saab Halabi 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