Information;Judgment — ECLI:EU:T:2021:455
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 - successful

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). 52 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). 53 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). 54 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). 55 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). 56 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 – based on the fact that, in view of his duties as Secretary General of the CNE, by approving the CNE’s decisions, he was responsible for its decisions which undermined democracy in Venezuela and, in particular, he facilitated the establishment of the illegitimate Constituent Assembly and the manipulation of the electoral process – are vitiated by errors of assessment. 57 It should be noted that the applicant does not dispute his status as Secretary General of the CNE, but, in essence, the nature of the duties of the holder of that post and his influence within that institution. 58 In that regard, it should be noted that, in the contested acts, the Council criticised the applicant for having, as Secretary General of the CNE, approved the CNE’s decisions which undermined democracy in Venezuela. 59 Therefore, it is necessary to ascertain, in the light of the applicant’s objections, whether the Council has proved, in accordance with the case-law cited in paragraph 53 above, that the applicant approved the CNE’s decisions in such a way that he may be regarded as one of the persons responsible for those decisions. 60 In support of that ground, in the first place, the Council submits that the applicant signs the CNE’s decisions, which the applicant does not, moreover, dispute. In its replies to the questions put by the Court in the context of measures of organisation of procedure, as amended by the corrigendum of 14 April 2020, the Council stated that, by signing, together with the President of the CNE, the latter’s decisions, the applicant authenticated the content of those decisions and conferred on them their legal effect. 61 By contrast, the applicant submits that his signature did not imply his support for the CNE’s decisions and that his signature attested only that the content of the decisions matched the conclusions reached by the five members of the institution, of which the applicant was not a member, during the discussions and votes on the adoption of the decisions. Thus, the applicant merely certified that those decisions accurately reflected the conclusions reached by the members of the CNE. The applicant adds, first, that none of the evidence in the Council’s file shows that he approved the CNE’s decisions and, second, that the Council did not even examine the CNE’s rules of procedure governing the duties of the Secretary General. 62 In that regard, it must be noted that, in accordance with Article 38(6) of the LOPE, the President of the CNE signs, together with the Secretary General, the CNE’s decisions, in accordance with the CNE’s rules of procedure. Furthermore, Article 13(1) of those rules of procedure, which the applicant annexed to his application, provides that the Secretary General implements the CNE’s decisions. 63 However, neither those provisions nor the evidence in the Council’s file make it possible to define the effect of the Secretary General’s signature on the CNE’s decisions. 64 When questioned in that regard at the hearing, the applicant stated that the Secretary General of the CNE was required to sign that institution’s decisions provided that the formal legal requirements for their adoption were complied with. Moreover, once a decision has been adopted, the Secretary General of the CNE is responsible for implementing that decision by ensuring that certain formalities are carried out, in particular the publication of the decision in the national official journal. Lastly, the applicant added that those responsibilities of the Secretary General of the CNE excluded any discretion with regard to that institution’s decisions. 65 In response to those arguments, the Council did not provide any specific evidence on the powers of the Secretary General of the CNE, but merely stated that he had a very important role which was not limited to purely secretarial duties, and stated that the Secretary General did not have any discretion in carrying out his obligations. 66 It must therefore be held that those arguments of the Council cannot demonstrate that, by signing the CNE’s decisions, the applicant, who, as the Council stated, has no discretion, may be regarded as approving those decisions. 67 In the second place, the Council submits that, by referring to the role of Secretary General of the CNE, the Council sought to highlight the Secretary General’s power of influence and his personal responsibility. 68 It is not apparent from the file or, in particular, from the relevant provisions of Venezuelan law, that the position of Secretary General of the CNE has such a power of influence. 69 Furthermore, the Council does not explain why, in its view, the Secretary General of the CNE has any power to influence the members of the CNE which would be capable of demonstrating that he approves of the CNE’s decisions. 70 In the third place, the Council submits that the LOPE attaches great importance to the position of Secretary General, given that that latter’s role is governed in the LOPE, together with those of the President and Vice-President of the CNE, in Chapter V of that law. Therefore, according to the Council, the Secretary General is responsible for the CNE’s activities. 71 In that regard, it is sufficient to note that the Council does not explain why the position of the provisions relating to the Secretary General of the CNE within the LOPE would lead to the conclusion, drawn in the grounds for the contested acts, that the applicant approved the CNE’s decisions which undermined democracy in Venezuela. 72 In the fourth place, according to the Council, as Secretary General of the CNE, the applicant was responsible, in accordance with Article 293 of the Venezuelan Constitution, for ensuring compliance with the CNE’s rules on ‘electoral power’, including by signing, together with the President of that institution, the CNE’s decisions. 73 In that regard, it should be noted that Article 293 of the Venezuelan Constitution concerns electoral power in general and not the duties of the Secretary General of the CNE. Accordingly, the Council cannot rely on that provision in order to define the applicant’s role. 74 In the light of all the foregoing, it must be held that, in response to the applicant’s objections, the Council has not established that the ground relied on against the applicant is well founded, since it has not been able to show that the applicant approved the CNE’s decisions. The Council has not been in a position to convincingly dispute the applicant’s arguments, first, that the signature of the Secretary General affixed, without any discretion, to the CNE’s decisions, seeks only to check that they accurately reflect the conclusions reached by the members of that institution and to ensure compliance with the formal legal requirements for the adoption of those decisions and, second, that the Secretary General does not play a part in drawing up the CNE’s positions and has no influence over the content of the CNE’s decisions. 75 Accordingly, the Council made an error of assessment in concluding in the contested acts that the applicant, as Secretary General of the CNE, approved the decisions of that institution. 76 It follows that the applicant cannot be held responsible for the CNE’s decisions which, according to the Council, undermined democracy in Venezuela. 77 Accordingly, the first plea in law must be upheld, without there being any need to rule on the request for the withdrawal of the corrigendum of 14 April 2020. 78 In the light of the foregoing, the contested acts must be annulled, in so far as they concern the applicant, without it being necessary to examine the second plea in law raised by the applicant. 79 With regard to the Council’s alternative claim in its observations on the statement of modification (see the second indent of paragraph 31 above), seeking, in essence, that the effects of Decision 2018/1656 be maintained in relation to the applicant until the partial annulment of Implementing Regulation 2018/899 takes effect, it is sufficient to note that, as indicated in paragraph 16 above, Decision 2018/1656 was effective only until 14 November 2019. Consequently, the annulment of that decision by the present judgment has no effect on the period after that date, so that it is not necessary to rule on the question of maintaining the effects of that decision (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 105 and the case-law cited). Costs 80 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 Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Annuls Council Decision (CFSP) 2018/901 of 25 June 2018 amending Decision (CFSP) 2017/2074 concerning restrictive measures in view of the situation in Venezuela, Council Decision (CFSP) 2018/1656 of 6 November 2018 amending Decision (CFSP) 2017/2074 concerning restrictive measures in view of the situation in Venezuela, Council Implementing Regulation (EU) 2018/899 of 25 June 2018 implementing Regulation (EU) 2017/2063 concerning restrictive measures in view of the situation in Venezuela and 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, in so far as those acts concern Mr Xavier Antonio Moreno Reyes; 2. Orders the Council of the European Union 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.