Information;Judgment — ECLI:EU:T:2021:463
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). 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.