Judgment;Information — ECLI:EU:T:2021:452
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). 36 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). 37 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). 38 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). 39 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). 40 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). 41 It is in the light of those principles that it is appropriate to assess whether the reasons for the applicant’s inclusion in the lists at issue – based on the fact that she has been the Deputy Prosecutor General since July 2017, was appointed to that position by the Tribunal Supremo de Justicia (Supreme Court), not the National Assembly, in breach of the Venezuelan Constitution, and is responsible for undermining democracy and the rule of law in Venezuela, inter alia by having initiated politically motivated investigations and failing to investigate human rights violations allegedly committed by the regime of the then President of Venezuela – are vitiated by errors of assessment. 42 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. 43 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. 44 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. 45 In that context, it must be held, as the Council found, that, by accepting an appointment to the position of Deputy Prosecutor General by the Tribunal Supremo de Justicia (Supreme Court), the applicant undermined democracy and the rule of law in Venezuela. It is apparent from the case file that, pursuant to the Venezuelan Constitution, the power to appoint the Deputy Prosecutor General belongs to the National Assembly, not the Tribunal Supremo de Justicia (Supreme Court). In addition, the unconstitutional nature of the applicant’s appointment to that post was also condemned by the Organization of American States (OAS) in its report of 19 July 2017, produced by the Council in its file. Consequently, that unconstitutional appointment could not have been made if the applicant had not accepted that role. 46 The Council also considered that the applicant had undermined 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 under the then President of Venezuela. 47 It is apparent from the case file that the Council, at the time when the contested acts were adopted, based its justification of the applicant’s inclusion on the lists at issue on 13 items of evidence, that is to say, 8 articles published on various websites in Spanish, 4 reports from international organisations and a document issued by the authorities of the United States of America summarising the sanctions imposed on the applicant by those authorities. 48 As regards the reason for inclusion based on the fact that the applicant initiated politically motivated prosecutions, in the first place, the Council referred to, inter alia, the report of the Inter-American Commission on Human Rights (‘the CIDH’) of 31 December 2017. According to that report, during a period which covers the applicant’s mandate as Deputy Prosecutor General, the Office of the Prosecutor General did not act with due independence and was used as a tool for repressing the opposition. 49 The applicant submits, in essence, that that statement concerns the behaviour of the Office of the Prosecutor General and not her personal conduct. At the same time, she specifies that the Council completely failed to take account of the fact that the irregularities committed by prosecutors were due to the threats, also mentioned in the CIDH report of 31 December 2017, made by the Venezuelan executive. 50 By acknowledging, as stated in the CIDH report of 31 December 2017, that the prosecutors committed irregularities due to having been threatened by the Venezuelan executive, the applicant does, in fact, concede that they did not act with complete independence. Having regard to the general context of the situation in Venezuela, described in paragraphs 43 and 44 above, and to the information published in the press concerning the investigations opened against opponents, contained in the Council’s file, the Council could validly consider that those irregularities on the part of the prosecutors had been committed against opponents of the government. 51 In any event, the CIDH report of 31 December 2017 concerned the period during which the applicant held the position of Deputy Prosecutor General, which is a position of high responsibility within the Office of the Prosecutor General. As observed by the Council at the hearing, the position of Deputy Prosecutor General is the second in the hierarchy of the prosecution service and includes the organisation of the Office of the Prosecutor General, representation of the government before the Tribunal Supremo de Justicia (Supreme Court) and management of the complaints of civil servants and of other cases. In those circumstances, the Council cannot be criticised for having held the applicant responsible for the practices of the Office of the Prosecutor General. 52 In the second place, the Council’s file contains, inter alia, three newspaper articles stating that the applicant initiated politically motivated prosecutions. 53 First, the article of 4 July 2017, published on the date of the applicant’s appointment as Deputy Prosecutor General on the website ‘http://runrun.es’, states that, in her role as prosecutor, the applicant had showed clear bias against the persons opposed to the government of the then President of Venezuela. That article also highlights a series of ‘politically motivated’ cases against opponents and non-governmental organisations. 54 Second, the article, also published on 4 July 2017, on the website ‘www.efectococuyo.com’, lists several claims that the applicant, during her mandate as prosecutor, had targeted opponents and non-governmental organisations, in particular a human rights activist who had been named in the article in question. 55 Third, it is apparent from the article and video report of 9 March 2015, published on the website ‘www.cnbc.com’, that the applicant, as senior prosecutor, accused the Mayor of Caracas, Mr Antonio Ledezma, member of the opposition, of involvement in the preparation of a coup. 56 The three articles, referred to in paragraphs 53 to 55 above, were published on various websites and refer to specific actions taken by the applicant against opponents, in her role as prosecutor, before her appointment to the role of Deputy Prosecutor General. 57 First, the two articles of 4 July 2017, referred to in paragraphs 53 and 54 above, list several specific cases concerning opponents of the government. Those two articles corroborate each other both by their references to the existence of such cases and by the fact that the names cited therein correspond in part. 58 The applicant challenges the reliability of those two articles. However, it must be observed that in support of each of her challenges, the applicant provides only a single example. Regarding the article published on the website ‘http://runrun.es’, she states only that she did not conduct the investigation against a specifically named person, as that investigation was opened by another prosecutor, who also ordered her arrest. Regarding the article published on the website ‘www.efectococuyo.com’, the applicant refers only to the case of a specifically named person, the sister of a member of the opposition, against whom the applicant allegedly opened an investigation, not for political reasons, but for leaking confidential governmental information to third parties. 59 At the hearing, the applicant explained that she had cited only those two cases because she remembered them on account of their extensive media coverage. In that regard, the applicant acknowledged that she was not in a position to recall each of the cases she had dealt with, given the thousands of cases she had dealt with during her career as a prosecutor, which has spanned more than 20 years. 60 Nevertheless, such an explanation given by the applicant does not call into question either, first, the existence of the other cases cited in the two articles of 4 July 2017 published on the websites ‘http://runrun.es’ and ‘www.efectococuyo.com’ or, second, the fact that they concern opponents of the government. Therefore, the fact that one of the investigations cited was opened by another prosecutor and another of those investigations was not opened for political reasons is insufficient, in the absence of a substantiated challenge to the other investigations referred to in those articles, to call into question the Council’s ability to rely on those articles. 61 Second, the article and video report of 9 March 2015 published on the website ‘www.cnbc.com’ (see paragraph 55 above) also make reference to the name of Mr Antonio Ledezma, Mayor of Caracas, stating that he is also a member of the opposition and was accused by the applicant of having participated in the preparation of a coup. That article also cites a statement from the United States’ presidency, according to which the evidence used by the applicant in the case concerning Mr Antonio Ledezma was ‘based on implausible – and in some cases fabricated – information’. 62 In addition, the information in the three articles cited in paragraphs 53 to 55 above, according to which the applicant initiated politically motivated prosecutions, and the information in the CIDH report referred to in paragraph 48 above are complementary, in that they all observe that the applicant carried out her various duties in a biased manner. 63 In the light of the foregoing, the Council was fully entitled to consider that the applicant, as Deputy Prosecutor General, was responsible for politically motivated prosecutions, brought by prosecutors under her authority, and that she had initiated such prosecutions herself while she was a prosecutor. In that regard, the applicant cannot validly rely on the fact that she carried out the duties of prosecutor in compliance with Venezuelan law, since the inclusion of her name on the lists at issue is not based on the irregular exercise of the duties of prosecutor but, in essence, on a lack of independence characterised, inter alia, by the initiation of politically motivated prosecutions. 64 In addition, the Council considered that the applicant had undermined democracy and the rule of law in Venezuela by failing to investigate allegations of human rights violations by the regime under the then President of Venezuela. In that regard, it is apparent from the report of the Venezuelan non-governmental organisation ‘Foro Penal’ of 16 February 2018, which is not disputed by the applicant, that the Office of the Prosecutor General ‘has done very little’ to put an end to significant human rights abuses, set out in that report, inter alia, arbitrary detention, repression of protests and the acceptance of acts of torture that were allegedly tolerated or even encouraged by top officials. It is thus apparent from that report that prosecutors under the authority of the applicant refrained from investigating human rights violations allegedly committed by the regime of the then President of Venezuela. The Council was therefore fully entitled to consider that the applicant had not investigated human rights violations allegedly committed by the regime of the then President of Venezuela. 65 In the light of the considerations set out in the context of the present plea in law, it must be held that the Council did not commit an error of assessment when it considered that the applicant had undermined democracy and the rule of law in Venezuela, without there being any need to examine, according to the case-law cited in paragraph 40 above, the relevance and probative value of the other evidence taken into account by the Council. 66 Consequently, the first plea in law must be rejected. The second plea in law, alleginginfringement of the right to property 67 The applicant submits that the restrictive measures imposed on her by the contested acts constitute an unjustified and disproportionate restriction of her right to property, as protected by Article 17(1) of the Charter. Those measures have the potential of suspending the normal economic life of the person, entity or group that is listed because they deprive them of most forms of use of their funds and other assets. 68 According to the applicant, no infringement of the right to property may be justified if there is no proper assessment of the evidence demonstrating that she posed a risk to the public interest which the restrictive measures sought to protect. 69 In addition, the applicant submits, first, that the Council has not demonstrated the existence of specific conduct by her which undermined democracy or the rule of law in Venezuela. According to the applicant, such a conclusion cannot be drawn merely from her role as Deputy Prosecutor General and former prosecutor. In addition, she submits that the Council has not adduced precise and corroborating evidence to that effect. She concludes that the Council therefore committed a manifest error of assessment with the result that it is not permissible to restrict the applicant’s right to property. 70 Second, the applicant submits that, in order to restrict the exercise of her right to property, the Council was required to respect the conditions laid down in Article 52(1) of the Charter. However, first, the applicant argues that she does not come within the scope of the contested acts. Second, the restrictive measures imposed against her constitute a disproportionate restriction of the exercise of her fundamental rights. In that connection, the applicant sets out some alternative, less restrictive, sanctions which could have been adopted. Third, the ‘essential content’ of the right to property was infringed regardless of the fact that the measures are temporary and reversible. 71 The Council contests the applicant’s arguments. 72 Under Article 17(1) of the Charter, everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest. 73 Pursuant to Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by it must, first, be provided for by law and respect the essence of those rights and freedoms and, second, subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. 74 In the present case, it is clear that the contested acts restrict the applicant’s right to property, since, pursuant to Article 7 of Decision 2017/2074 and Articles 8 and 9 of Regulation 2017/2063, she cannot, inter alia, make use of her funds situated within the European Union, unless she obtains specific authorisation, and since no funds or other economic resources can be made available, directly or indirectly, to her. 75 However, the right to property, as protected by Article 17(1) of the Charter, does not constitute an unfettered prerogative and may therefore be limited, under the conditions laid down in Article 52(1) of the Charter (see judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90, paragraph 176 (not published) and the case-law cited). 76 Consequently, in order to comply with EU law, a limitation on the exercise of the right to property must satisfy three conditions. 77 First, the limitation must be ‘provided for by law’. In other words, the measure in question must have a legal basis. Secondly, it must refer to an objective of general interest, recognised as such by the European Union. Those objectives include those pursued under the common foreign and security policy (CFSP) and referred to in Article 21(2) TEU. Thirdly, the limitation must not be excessive: it must be necessary and proportionate to the aim sought and the ‘essential content’, that is, the substance, of the right or freedom at issue must not be impaired (see judgment of 6 June 2018, Lukash v Council, T‑210/16, not published, EU:T:2018:332, paragraph 222 and the case-law cited). 78 As regards the first condition, it must be observed that, in the present case, the limitation is ‘provided for by law’, given that it is set out in Decision 2017/2074 and Regulation 2017/2063, as amended by the contested acts. Those acts are, in particular, of general application and have a clear legal basis in EU law. Moreover, the restrictions are formulated in sufficiently precise terms as regards their scope and the reasons showing why they apply to the applicant (see, to that effect, judgment of 5 November 2014, Mayaleh v Council, T‑307/12 and T‑408/13, EU:T:2014:926, paragraph 176). 79 In that regard, the applicant’s submissions that, in essence, the present restriction of her right to property is not provided for by law in so far as she is not responsible for undermining democracy and the rule of law in Venezuela must be rejected. 80 Regarding the second condition, in respect of which the applicant does not put forward any arguments, it must be stated that, as is apparent from the examination of the first plea in law, the contested acts comply, as regards the applicant, with the objective referred to in Article 21(2)(b) TEU of consolidating and supporting the rule of law in so far as they form part of a policy intended to promote democracy in Venezuela. 81 As regards the third condition, it must be recalled that the principle of proportionality, as one of the general principles of EU law, requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation in question. Consequently, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 15 September 2016, Yanukovych v Council, T‑346/14, EU:T:2016:497, paragraph 164 and the case-law cited). 82 In that respect, with regard to judicial review of compliance with the principle of proportionality, the EU legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in those fields can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see judgment of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 120 and the case-law cited; judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 88). 83 According to the case-law, the disadvantages caused by the restrictive measures are not disproportionate to the objectives pursued, taking into consideration, first, that those measures are inherently temporary and reversible and do not therefore infringe the ‘essential content’ of the right to property, and, second, that they may be derogated from in order to cover basic needs, legal costs or even the extraordinary expenses of the persons concerned (see judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90, paragraph 182 (not published) and the case-law cited). 84 In the present case, regarding the appropriateness of the restrictive measures, such as those imposed on the applicant, with reference to an objective of general interest as fundamental to the international community as the protection of democracy and the rule of law, it is apparent that the freezing of the funds, financial assets and other economic resources of the persons identified as being involved in the undermining of democracy in Venezuela cannot be regarded as inappropriate (see, to that effect, judgment of 12 February 2020, Boshab v Council, T‑171/18, not published, EU:T:2020:55, paragraph 134 and the case-law cited). 85 As regards the necessity of those measures, it should be noted that alternative and less restrictive measures are not as effective in achieving the goal pursued when they make it possible to circumvent the restrictions imposed or there is a likelihood that they will not target the person concerned effectively (see, to that effect, judgment of 20 September 2016, Alsharghawi v Council, T‑485/15, not published, EU:T:2016:520, paragraph 84 and the case-law cited). 86 The applicant suggests two alternative measures which, according to her, would be less restrictive. She proposes, first, a prohibition on EU citizens engaging in transactions related to, providing financing for, or otherwise dealing in the purchase of any debt, including accounts receivable, issued by the Government of Venezuela, or, second, a prohibition on EU citizens participating in the transfer by the Venezuelan Government of any equity interest in any entity owned 50% or more by the Government of Venezuela. 87 In that regard, it must be stated that it is apparent from, in particular, recital 7 of Decision 2017/2074 that the targeted restrictive measures in question ‘should be imposed against certain natural and legal persons 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’. The alternative measures proposed by the applicant do not enable the aims pursued in Decision 2017/2074 and Regulation 2017/2063 to be achieved. Therefore, the applicant’s argument in this regard must be rejected. 88 In addition, it must be borne in mind that Article 7(4) of Decision 2017/2074 and Article 9(1) of Regulation 2017/2063 provide for the possibility of releasing certain frozen funds or economic resources so that the persons concerned can satisfy basic needs or meet certain commitments. 89 In that regard, the applicant submits that the ‘essential content’ of the right to property was infringed regardless of the fact that the measures are temporary and reversible. That argument must be rejected in accordance with the case-law cited in paragraph 83 above. 90 It follows that the contested acts do not infringe the applicant’s right to property and the second plea in law must be rejected. 91 Consequently, as the first plea in law has also been rejected, the action must be dismissed in its entirety. Costs 92 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.