Information;Judgment — ECLI:EU:T:2021:449
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). 73 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). 74 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). 75 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). 76 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). 77 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). 78 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, which alleged that, taking into account her role as President of the CNE, she was responsible for undermining democracy and the rule of law in Venezuela, in particular by facilitating the establishment of the Constituent Assembly and by failing to ensure that the CNE remained an impartial and independent institution, as provided for by the Venezuelan Constitution, are vitiated by errors of assessment. 79 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. 80 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. 81 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. 82 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 two press releases of the OAS, as well as a press article 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. 83 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”’. 84 Secondly, an article, which appeared on the same day on the internet site ‘elimpulso.com’, communicates information contained in a public statement of 23 May 2017 from the body ‘Citizens Electoral Network’, according to which the creation of the Constituent Assembly was intended, inter alia, to override a lawfully constituted power such as the National Assembly. 85 Thirdly, 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. 86 Fourthly, 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. 87 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 80 above. 88 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 83 to 87 above. Moreover, the applicant cannot rely on the fact that the CNE, under her presidency and with her vote, considered that the proposal of the then President of Venezuela for the establishment of that assembly complied with the Venezuelan Constitution. She does not dispute having supported the decision of the CNE, over which she presided, and, in any event, she has not substantiated that claim by a reliable external source. In that regard, in order to demonstrate the constitutionality and legitimacy of the establishment of the Constituent Assembly, the applicant puts forward a study by the International Commission of Jurists of July 2017. However, she does not identify the specific elements contained in that study which support of her argument. 89 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 Human Rights Watch report for 2015 on Venezuela, 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’. 90 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. 91 It follows from the considerations set out in paragraph 88 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, and, moreover, the applicant herself, refrained from publishing detailed information of the results of the election of the Constituent Assembly, even though the CNE was required to carry out that publication under Article 123 of the Organic Law on electoral processes. 92 Accordingly, the Council has established to the requisite legal standard that the CNE had contributed to the establishment of the Constituent Assembly. 93 In the third place, as regards the applicant’s responsibility, it should be noted that she does not contest her position as President of the CNE, but, in essence, her role as President of the CNE and her influence within that institution. 94 In that regard, it is apparent from the case-law that persons responsible for violations of electoral standards, such as the Vice-President of a Central Electoral Committee of the country concerned, may be regarded as being involved in undermining democracy in that country (see, to that effect, judgment of 23 September 2014, Ipatau v Council, T‑646/11, not published, EU:T:2014:800, paragraphs 140 to 144). That case-law applies a fortiori in the present case, since, in accordance with Article 292 of the Venezuelan Constitution, the CNE is the highest body in the administration responsible for elections, which is not disputed, and the applicant is the president of that body. 95 Furthermore, the applicant does not dispute that, in her capacity as President of the CNE, she personally participated in that body’s activities. It should also be noted that, in accordance with Article 38(3) of the Ley Orgánica del Poder Electoral (Organic Law on electoral power) and as the Council pointed out at the hearing, the President of the CNE presides over the sessions of the CNE and directs its debates. Moreover, 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 (see, by analogy, judgment of 23 September 2014, Ipatau v Council, T‑646/11, not published, EU:T:2014:800, paragraph 144). 96 On the contrary, the press release of 3 June 2017 and a statement by the OAS Secretary General of 19 July 2017 shows that the applicant actively supported the actions of the CNE and played a very active role therein. 97 In particular, it should be noted that, despite the applicant’s argument that the role of the president is independent of the role of member of the CNE, in accordance with Article 296 of the Constitution and Articles 36 and 37 of the Organic Law on electoral power, the President of the CNE is elected by and from among the members of that institution. Therefore, in addition to her role as President of the CNE, the applicant is necessarily, in that capacity, a member with a right to vote within that institution. As the applicant states, decisions within the CNE are adopted by a simple majority of the votes of the entirety of its five members. In addition, the applicant herself states that the proposal of the then President of Venezuela on the establishment of the Constituent Assembly, submitted to the CNE, was approved by four votes, including that of the applicant. The applicant also confirms that the role of CNE member confers on its holder the power to exercise decisive influence over decisions adopted by the CNE by means of his or her vote. 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. 98 Finally, as has been stated in paragraph 91 above, the applicant has not rebutted the Council’s assertion that she refrained from publishing detailed information on the results of the election of the Constituent Assembly. 99 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. 100 That conclusion cannot be contradicted by the applicant’s argument that the Council made a ‘manifest error of assessment’ in that it failed to take account of the fact that the provisions applicable to the CNE guarantee its independence. 101 The question which arises in the present case is not whether the texts in force organise the independence of the CNE. Although those texts 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 the rule of law and democracy in Venezuela. 102 In the light of the considerations set out in paragraphs 72 to 101 above in the context of the present plea, without it being necessary to examine, in the light of the case-law cited in paragraph 77 above, the other grounds set out in the contested acts with regard to the applicant, it must be held that the Council’s file makes it possible to establish that the applicant, in the exercise of her role as President of the CNE, facilitated the establishment of the Constituent Assembly and that the Council did not make any error of assessment in concluding that, taking into account the applicant’s role as President of the CNE, and in the exercise of her functions, she was responsible for having undermined democracy and the rule of law in Venezuela, inter alia by facilitating the establishment of the Constituent Assembly. 103 The second plea in law must therefore be rejected. 104 Therefore, since the first plea in law has also been rejected, the action must be dismissed in its entirety. Costs 105 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 Tibisay Lucena Ramírez 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.