Judgment;Information — ECLI:EU:T:2021:461
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). 48 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). 49 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). 50 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). 51 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). 52 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). 53 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 her duties as a member of the CNE, she was responsible for the CNE’s activities which undermined democracy in Venezuela and, in particular, facilitated the establishment of the illegitimate Constituent Assembly and the manipulation of the electoral process in relation to a cancelled presidential recall election in 2016, the postponement of gubernatorial elections in 2016, and the relocation of polling stations at short notice before gubernatorial elections in 2017 – are vitiated by errors of assessment. 54 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. 55 In that regard, in the first place, 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. 56 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. 57 The Council’s file contains, as part of the evidence justifying the inclusion and retention of the applicant’s name on the lists at issue, evidence such as a report and three press releases of the OAS, containing information on the illegitimate and unconstitutional nature of the Constituent Assembly, in particular because of the usurpation by the Constituent Assembly of the powers of the National Assembly. 58 In particular, first, the OAS press release of 3 June 2017, prior to the elections of the Constituent Assembly of 30 July 2017, contains a message from the Secretary General of the OAS regarding Venezuela. In that press release, reference is made to the illegitimate and unconstitutional nature of the Constituent Assembly, in particular that it ‘seeks to definitively denaturalize the “Magna Carta”’. 59 Secondly, on 19 July 2017, shortly before the Constituent Assembly elections, the OAS issued a press release containing a statement by its Secretary General before the United States Congress. The Secretary-General of the OAS had emphasised that the Constituent Assembly, whose objective was to impose a dictatorship in Venezuela, had supra-constitutional powers in order to eliminate State institutions, in particular the National Assembly which was legitimately elected by the people, and intended to contribute to repression and limitation of freedoms. 60 Thirdly, after the elections to the Constituent Assembly, in a report of 25 September 2017, the OAS stated that, immediately after its establishment, the Constituent Assembly, first, divested the National Assembly of its legislative powers without that body being dissolved and, second, assumed that body’s powers. In addition, it is apparent from that same document that the Constituent Assembly removed the Prosecutor General of Venezuela from her duties where she had previously expressed her disagreement with the Tribunal Supremo de Justicia (Supreme Court) and the executive. According to the OAS, the establishment of the Constituent Assembly marked the end of the separation of powers in Venezuela. 61 Fourthly, in a press release by the OAS on the same date, the Secretary -General of the OAS set out the report referred to in paragraph 60 above. In that press release, the Secretary General of the OAS stated that, following the establishment of the Constituent Assembly, democracy in Venezuela was completely eliminated. He also repeated, in essence, the findings set out in paragraph 60 above. 62 It should be noted that the above information is consistent with the European Union’s concerns described in recital 6 of Decision 2017/2074, cited in paragraph 55 above. 63 Therefore, it must be held that, in the light of the reliable evidence put forward by the Council, the applicant cannot successfully contest the illegitimate and unconstitutional nature of the Constituent Assembly, particularly since she has not called into question the information set out in paragraphs 58 to 62 above. Moreover, the applicant cannot rely on the fact that the CNE, with her support, first, considered that the proposal of the then President of Venezuela for the establishment of that assembly complied with the Venezuelan Constitution and, second, agreed with the proposal regarding the composition of the electoral body for the elections to that assembly. She does not dispute having supported the CNE’s decisions and, in any event, she has not substantiated her claims by a reliable source. In that regard, in order to demonstrate the constitutionality of the establishment of the Constituent Assembly, the applicant relies on an article by the NGO Hinterlaces. However, irrespective of the fact that that evidence alone cannot call into question the reliable evidence set out in paragraphs 58 to 61 above, it should be noted that that article does not contradict the information contained in that evidence. Moreover, that article does not set out an unequivocal position regarding the legitimacy of the approach chosen for the establishment of the Constituent Assembly. Furthermore, that article reproduces a declaration attributed to the then President of Venezuela according to which the Constituent Assembly serves to reform the State and the National Parliament, which he described as ‘rotten’. 64 As regards the fact that the Tribunal Supremo de Justicia (Supreme Court) confirmed the decision of the CNE by judgment No 378 of 31 May 2017, it must be observed that the independence of that court is itself disputed, as is apparent from the OAS press release of 3 June 2017 and its report of 25 September 2017, included in the Council’s file, and that, as is apparent from the lists at issue, the president of that institution himself is subject to restrictive measures for having ‘supported and facilitated the Government’s actions and policies which have undermined democracy and the rule of law in Venezuela’. 65 In the second place, it must be borne in mind that the CNE is the body which, under Article 292 of the Venezuelan Constitution, is the head of one of the five branches of public power, namely electoral power. 66 It follows from the considerations set out in paragraph 63 above that the CNE played an important role in establishing the Constituent Assembly by supporting that process. Moreover, the applicant has not rebutted the Council’s assertion, contained in the OAS report of 25 September 2017, to which reference is made in the Council’s file, that the CNE refrained from publishing detailed information on the results of the election of the Constituent Assembly. 67 Accordingly, the Council has established to the requisite legal standard that the CNE had contributed to the establishment of the Constituent Assembly. 68 In the third place, as regards the applicant’s responsibility, it should be noted that she does not contest her position as a member of the CNE, but, in essence, her role as a member of the CNE and her influence within that institution. 69 First of all, the applicant does not dispute that, in her capacity as a member of the CNE, she personally participated in that body’s activities and it is not apparent from the file that she dissociated herself at any given time from that body’s work or that she expressed the slightest reservation regarding the work it carried out, in particular as regards the establishment of the Constituent Assembly and the election of its members in July 2017 (see, by analogy, judgment of 23 September 2014, Ipatau v Council, T‑646/11, not published, EU:T:2014:800, paragraph 144). 70 On the contrary, as stated in paragraph 40 above, the applicant submits that the CNE is a collegiate body composed of five members whose decisions can be adopted only by at least a three-vote majority and that there is no right of veto. Consequently, the voice of each member carries equal weight in the decisions of that institution. It must therefore be held that the applicant, as a member of the CNE, participated personally and on an equal basis with the other members, in the activities of that institution. 71 In particular, it must be noted that the applicant claims, first, that the CNE considered that the proposal of the then President of Venezuela on the establishment of the Constituent Assembly complied with the Constitution and, second, that the CNE considered that the proposal concerning the composition of the electoral body for the elections to the Constituent Assembly was appropriate. 72 In that context, it is apparent from the minutes of the CNE meetings during which those subjects were discussed, which are annexed to the application, that the applicant actively supported those proposals of the then President of Venezuela. In the contested acts, it is specifically alleged against her that she facilitated the establishment of that assembly. It follows that the applicant actively participated in the adoption of the decisions by the CNE in that regard. 73 It must therefore be held that the applicant cannot successfully criticise the ground according to which she facilitated the establishment of the Constituent Assembly, the constitutionality and legitimacy of which are called into question, and there is no need to take into consideration her role as member of the JNE, since it is a subordinate body of the CNE without the power to make decisions of its own. 74 That conclusion cannot be contradicted by the applicant’s argument that, in accordance with the Venezuelan Constitution, CNE members have no ties to political organisations. 75 The question which arises in the present case is not whether the texts in force organise the independence of the CNE or its members. Although the Constitution cannot be ignored, the question raised by the grounds for the contested acts is rather whether, as a matter of fact, it is established that, in the exercise of her roles within the CNE, the applicant undermined democracy in Venezuela. 76 In the light of the considerations set out in paragraphs 47 to 75 above in the context of the present plea, without it being necessary to examine, in the light of the case-law cited in paragraph 52 above, the other grounds set out in the contested acts with regard to the applicant, it must be held that the Council did not make any error of assessment in concluding that, taking into account the applicant’s role as member of the CNE, and in the exercise of her duties, she was responsible for having undermined democracy in Venezuela, inter alia by facilitating the establishment of the Constituent Assembly. 77 The first plea in law must therefore be rejected. The second plea in law, alleging infringement of the right to property 78 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. 79 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. 80 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 member of the CNE and the JNE. In addition, she submits that the Council has not adduced precise and corroborating evidence to that effect. She concludes that the Council therefore made ‘a manifest error of assessment’, with the result that it is not permissible to restrict the applicant’s right to property. 81 Secondly, 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. She argues that, in the present case, the restriction of her right to property is not laid down in law since, in her view, she is not responsible for undermining democracy or the rule of law in Venezuela. 82 According to the applicant, even if it were established that she was responsible, the measures taken against her go beyond what is necessary. In that regard, the applicant sets out some alternative, less restrictive sanctions which could have been adopted In addition, the ‘essential content’ of the right to property was infringed regardless of the fact that the measures are temporary and reversible. 83 The Council disputes the applicant’s arguments. 84 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. 85 According 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. 86 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. 87 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). 88 Consequently, in order to comply with EU law, a limitation on the exercise of the right to property must satisfy three conditions. 89 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). 90 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). 91 In that regard, the applicant’s submissions that 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. 92 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 democracy and the rule of law in so far as they form part of a policy intended to promote democracy in Venezuela. 93 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). 94 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). 95 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). 96 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). 97 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). 98 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 Venezuelan Government, 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 Venezuelan Government. 99 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 at issue ‘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. 100 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. 101 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 95 above. 102 It follows that the contested acts do not infringe the applicant’s right to property and that the second plea in law must be rejected. 103 Consequently, since the first plea in law has also been rejected, the action must be dismissed in its entirety. Costs 104 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 Socorro Elizabeth Hernández Hernández 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.