Information;Judgment — ECLI:EU:T:2021:448
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). 81 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). 82 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). 83 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). 84 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). 85 It is in the light of those principles that it must be assessed whether the reasons for the applicant’s inclusion in and retention on the lists at issue – on the basis of the fact that, having regard to his roles as President and former Vice-President of the Tribunal Supremo de Justicia (Supreme Court), he supported and facilitated the government’s actions and policies which have undermined democracy and the rule of law in Venezuela, and is responsible for actions and statements that have usurped the authority of the National Assembly – are vitiated by errors of assessment. 86 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. 87 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. 88 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. 89 Having thus set out the general context, it must be stated that the applicant does not dispute that he is the President and former Vice-President of the Tribunal Supremo de Justicia (Supreme Court). In addition, he states that that court is the highest court of law in Venezuela. 90 The Council based its finding that the applicant had ‘supported and facilitated the Government’s actions and policies which have undermined democracy and the rule of law in Venezuela’ and was ‘responsible for actions and statements that have usurped the authority of the National Assembly’ on, inter alia, the fact that, as President of the Tribunal Supremo de Justicia (Supreme Court), he was responsible for that court’s actions and that he had, more specifically, signed and expressed support for judgments No 155 of 27 March 2017 and No 156 of 29 March 2017 that usurped the authority of the National Assembly, a democratically elected constitutional body. In that regard, in its file, the Council relied on, inter alia, a report on the Tribunal Supremo de Justicia (Supreme Court) by the International Commission of Jurists, a press release from the Inter- American Commission on Human Rights and an article published on 30 March 2017 on the website ‘efectococuyo.com’. 91 According to those sources, by its judgment No 155 of 27 March 2017, the Constitutional Chamber of the Tribunal Supremo de Justicia (Supreme Court) gave the then President of Venezuela the power to take measures in various areas and review legislation, including the Organic Law against organised crime and the financing of terrorism, the Anti-Corruption Law, the Criminal Code, the Organic Code of criminal procedure and the Code of Military Justice. According to those sources, that judgment also refused to recognise the parliamentary immunity of the members of the National Assembly. 92 Also according to the sources in question, the Constitutional Chamber of the Tribunal Supremo de Justicia (Supreme Court), by its judgment No 156 of 29 March 2017, eliminated the requirement laid down in the national legislation to obtain authorisation from the National Assembly in order to enter into public-private ventures in the field of hydrocarbons. In that judgment, the Constitutional Chamber also stated that it would itself exercise legislative powers so long as the situation of contempt and invalidity of the National Assembly’s proceedings continued. 93 The applicant does not dispute that reading of judgments No 155 and No 156. 94 It is clear that the judgments of the Tribunal Supremo de Justicia (Supreme Court) referred to above constituted support for the actions and policies of the government which undermined democracy and the rule of law in Venezuela and usurped the authority of the National Assembly. It is apparent from paragraphs 91 and 92 above that, by judgments No 155 and No 156, the Constitutional Chamber of the Tribunal Supremo de Justicia (Supreme Court) stripped the National Assembly of its prerogatives in favour of the then President of Venezuela and of that chamber and, moreover, refused to recognise the parliamentary immunity of the members of the National Assembly. 95 However, as the applicant submits, without it being disputed by the Council, the Tribunal Supremo de Justicia (Supreme Court) is made up of seven chambers and, in so far as the applicant does not carry out his judicial duties in the Constitutional Chamber that handed down judgments No 155 and No 156, he did not sign those judgments. 96 In that connection, it must be observed that the case file does not contain evidence showing that the applicant signed judgments No 155 and No 156. It is apparent from the content of those judgments, provided by the applicant, that he was not one of the members of the chamber that delivered them and he had not signed them. 97 However, it must be emphasised that it is apparent from the Council’s file that, according to the report on Venezuela in 2016 by the non-governmental organisation Human Rights Watch, the Tribunal Supremo de Justicia (Supreme Court) lacked independence from the government. The report states that the Venezuelan Government had taken control of that court in 2004 and that its members have since openly rejected the principle of separation of powers and publicly pledged their commitment to advancing that government’s political agenda. Moreover, that lack of independence of the judiciary in general and of the Tribunal Supremo de Justicia (Supreme Court) in particular is also observed in the report by the International Commission of Jurists on that court and in a press release from the Inter-American Commission on Human Rights, referred to in paragraph 90 above, on which the Council also relied. 98 In addition, in that report of the International Commission of Jurists it was stated that judgments No 157 and No 158 of the Tribunal Supremo de Justicia (Supreme Court) of 1 April 2017 were intended to ‘clarify’ judgments No 155 and No 156 which, as the applicant confirmed at the hearing, were heavily criticised by public opinion and sparked demonstrations in Venezuela. It is apparent from that report and from the applicant’s statements at the hearing that the Tribunal Supremo de Justicia (Supreme Court) adopted those ‘clarifications’ following a political request by the executive, the National Defence Council in particular, convened and headed, in accordance with Article 323 of the Constitution, by the then President of Venezuela, in order to settle the controversies generated by judgments No 155 and No 156. The applicant’s arguments put forward at the hearing, namely that the national rules – which he did not however provide – empowered the Tribunal Supremo de Justicia (Supreme Court) to clarify its judgments, do not call into question the fact that those clarifications were given in response to political demands external to that court and to the judiciary in general. 99 It follows that the Tribunal Supremo de Justicia (Supreme Court) cannot be regarded as independent of the influence of the Venezuelan Government. 100 In such specific circumstances, where the judiciary has lost its independence, it must be taken into account that presidents of courts – more specifically, those of the highest courts – are the main means by which the executive can exert influence on the treatment of cases before the courts. 101 As a result, the fact that the applicant holds the highest position at the highest court in Venezuela can be regarded as an indication of the support he provides to government policies, in so far as he is the central figure of that court. 102 Thus, in the context of institutional imbalance, as described in paragraphs 97 and 98 above, the applicant cannot claim, relying solely on formal texts, that he was not in a position to influence, as a matter of fact, the judgments of the Constitutional Chamber of the Tribunal Supremo de Justicia (Supreme Court), particularly as regards highly political decisions which subsequently led to the intervention of the then President of Venezuela (see paragraph 98 above). Moreover, as the applicant himself emphasises, the judgments of the Constitutional Chamber and, therefore, judgments No 155 and No 156 bind the entirety of the Tribunal Supremo de Justicia (Supreme Court). 103 In addition, the Council also took into account the official Twitter account of the Tribunal Supremo de Justicia (Supreme Court), which tweeted a quote by the applicant publicly supporting the decisions of that court. More specifically, the Council attached a link to a tweet of 4 April 2017 in which the applicant had stated, as he also confirmed, that the Tribunal Supremo de Justicia (Supreme Court) had held that ‘at present the [National Assembly] [was] in contempt and [lacked] legality and legitimacy to remove judges’. 104 The applicant, considering that the Council referred, inter alia, to judgment No 2 of 11 January 2017 of the Tribunal Supremo de Justicia (Supreme Court), in which the Constitutional Chamber of that court had indeed declared that the National Assembly was in contempt, emphasises again that he did not participate in the adoption of that judgment, nor did he sign it. He also submits that the interpretation of the Constitution by the Constitutional Chamber is binding on everyone and, by the tweet in question, he did not express approval of or support for the judgment in question, but merely set out its content. 105 Nonetheless, having regard to the applicant’s role as President of the Tribunal Supremo de Justicia (Supreme Court), it must be stated that, by setting out the content of such decisions of that court in a tweet, he gave it his backing, despite the fact that they affected the status of the National Assembly and, therefore, the balance of powers in Venezuela. In other words, that tweet appears to support the pro-government precedent of the Constitutional Chamber of the Tribunal Supremo de Justicia (Supreme Court) that usurped the authority of the National Assembly. 106 It must also be added that, given the controversial nature of judgments No 155 of 27 March 2017 and No 156 of 29 March 2017, acknowledged by the applicant at the hearing, the tweet in question was made subsequent, first, to the executive’s request for ‘clarification’ of those judgments and, secondly, to the delivery of judgments No 157 and No 158 of 1 April 2017 adopted for that purpose. Therefore, the applicant cannot deny that, in such circumstances, that tweet, published only three days later, namely on 4 April 2017, could be perceived as an expression of his support for the pro-government precedent of the Constitutional Chamber. 107 Lastly, it is apparent from the report on the Tribunal Supremo de Justicia (Supreme Court) by the International Commission of Jurists, cited in paragraph 90 above, that two former judges of that court have declared that they were pressured to resign in order to make it possible to elect in their place judges who were favourable to the regime. 108 In that context, the Council contends that it is apparent from an article published on 3 March 2016 on the website ‘noticierodigital.com’, cited in paragraph 78 above, that the applicant, then Vice-President of the Tribunal Supremo de Justicia (Supreme Court), had pressured one of the judges referred to in paragraph 107 above in order to obtain her resignation and make it possible to elect judges favourable to the regime. 109 In that regard, the applicant merely maintains that, aside from its heading and subheading, nothing in that article incriminates him and the threats in question are in fact attributed to the former President of the Tribunal Supremo de Justicia (Supreme Court). 110 Irrespective of its heading and subheading, that article contains a link to the video hosting website ‘YouTube’ where the express statements to that effect of the former judge of the Tribunal Supremo de Justicia (Supreme Court) are available. Those statements incriminate the applicant and suggest that he acted on the orders of the government. The applicant did not dispute those declarations or the reliability of that link. 111 The applicant submits that, in accordance with Article 254 of the Constitution and Article 37(5) of the Organic Law on the Tribunal Supremo de Justicia (Supreme Court), the latter is an independent body whose members must renounce any political militancy. 112 Admittedly, those laws are intended to organise the independence of the Tribunal Supremo de Justicia (Supreme Court). However, although those laws cannot be disregarded, the question raised by the grounds of the contested acts is different. The matter in question, in particular, is whether, on the facts, it is established that the Tribunal Supremo de Justicia (Supreme Court) was an independent court and whether, in carrying out his duties as president and former vice-president of that court, the applicant is responsible for the acts attributed to him by the Council. 113 In the light of the considerations set out in paragraphs 80 to 112 above in the context of the present plea, it must be held that the Council did not commit an error of assessment when it found that the applicant, having regard to his roles as President and former Vice-President of the Tribunal Supremo de Justicia (Supreme Court) and in carrying out his duties, supported and facilitated the government’s actions and policies which undermined democracy and the rule of law in Venezuela, and was responsible for actions and statements that have usurped the authority of the National Assembly. 114 The second plea in law must therefore be rejected. 115 Accordingly, as the first plea in law has also been rejected, the action must be dismissed in its entirety. Costs 116 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 Maikel José Moreno Pérez 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.