Information;Judgment — ECLI:EU:T:2021:458
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). 44 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). 45 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). 46 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). 47 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). 48 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). 49 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 she is the Vice-President of Venezuela, former President of the illegitimate Constituent Assembly and former member of the Presidential Commission for the illegitimate Constituent Assembly, and stating that her actions on the Presidential Commission and then as President of the illegitimate Constituent Assembly have undermined democracy and the rule of law in Venezuela, including by usurping the powers of the National Assembly and using them to target the opposition and prevent them from taking part in the political process – are vitiated by errors of assessment. 50 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. 51 In that regard, 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. 52 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. 53 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, inter alia, a letter and report of the Organization of American States (OAS) and a letter of the international non-governmental organisation Human Rights Watch, containing information on the illegal and unconstitutional nature of the Constituent Assembly, the encroachment of that assembly’s powers on those of the National Assembly in particular. 54 In particular first, in its letter of 9 September 2017 and report of 31 December 2017, drafted therefore shortly after the elections to the Constituent Assembly on 30 July 2017, the OAS stated that there were serious concerns regarding the unconstitutional nature of the creation of the Constituent Assembly. More specifically, it raised concerns regarding how the government had decided to apportion places within that body by prioritising certain groups over others, thereby breaching the principle of universal suffrage. 55 Second, Human Rights Watch, in its letter of 9 September 2017, stated that the presidential decree establishing the Constituent Assembly was illegal and breached the provisions of the Venezuelan Constitution, which requires prior consultation of the population, and, following its creation, the Constituent Assembly had appropriated the legislative powers of the democratically elected National Assembly. 56 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 51 above. In addition, that information and its reliability have not been called into question by the applicant. 57 In those circumstances, the Council was fully entitled to consider that the Constituent Assembly was illegitimate. The Council was therefore also fully entitled to consider that, by accepting the role of president of such a body and the role of member of the Presidential Commission for that body, the applicant had, in carrying out her duties, necessarily undermined democracy and the rule of law in Venezuela. Consequently, the evidence in the Council’s file is sufficient to show that the applicant was responsible for the approval of the decisions of the Constituent Assembly and was an active participant in the Presidential Commission. 58 In the light of the considerations set out in the context of the examination of the present plea, it must be held that the Council did not commit an error of assessment when it found that the applicant had undermined democracy and the rule of law in Venezuela, without there being any need to examine, in accordance with the case-law cited in paragraph 48 above, the relevance of the other reasons given by the Council. Furthermore, even if the applicant no longer carried out duties as President of the Constituent Assembly and member of the Presidential Commission, she remained linked to the regime which was in power in Venezuela when she, while carrying out those duties, undermined democracy and the rule of law in Venezuela. It is common ground between the parties that, at the time when the contested acts were adopted, the applicant held the position of Vice-President of the Bolivarian Republic of Venezuela. Moreover, it is not apparent from the file, nor does the applicant claim, that it was the applicant herself who took the decision to cease carrying out her duties as part of the Constituent Assembly and the Presidential Commission 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)). 59 Consequently, the first plea in law must be rejected. The second plea in law, alleging infringement of the right to property 60 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. 61 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. 62 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 former President of the Constituent Assembly and former member of the Presidential Commission. In addition, she submits that the Council has not adduced precise and corroborating evidence to that effect. She concludes that the Council therefore committed a ‘manifest error of assessment’ with the result that it is not permissible to restrict the applicant’s right to property. 63 Second, 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. However, first, the applicant argues that she does not come within the scope of the contested acts. Second, the restrictive measures imposed against her constitute a disproportionate restriction of the exercise of her fundamental rights. In that connection, the applicant sets out some alternative, less restrictive, sanctions which could have been adopted. Third, the ‘essential content’ of the right to property was infringed regardless of the fact that the measures are temporary and reversible. 64 The Council contests the applicant’s arguments. 65 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. 66 Pursuant 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. 67 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. 68 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). 69 Consequently, in order to comply with EU law, a limitation on the exercise of the right to property must satisfy three conditions. 70 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). 71 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). 72 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. 73 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. 74 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). 75 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). 76 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). 77 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). 78 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). 79 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 Government of Venezuela, 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 Government of Venezuela. 80 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. 81 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. 82 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 76 above. 83 It follows that the contested acts do not infringe the applicant’s right to property and the second plea in law must be rejected. 84 Consequently, as the first plea in law has also been rejected, the action must be dismissed in its entirety. Costs 85 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 Delcy Eloina Rodríguez Gómez 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.