Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

14 July 2021 (*)

(Common foreign and security policy – Restrictive measures taken with regard to the situation in Venezuela – Freezing of funds – Lists of persons, entities and bodies covered by the freezing of funds and economic resources – Inclusion of the applicant’s name on the lists – Retention of the applicant’s name on the lists – Obligation to state reasons – Rights of the defence – Principle of sound administration – Right to effective judicial protection – Error of assessment)

In Case T‑247/18,

Tibisay Lucena Ramírez, residing in Caracas (Venezuela), represented by L. Giuliano and F. Di Gianni, lawyers,

applicant,

v

Council of the European Union, represented by S. Kyriakopoulou, P. Mahnič and A. Antoniadis, acting as Agents,

defendant,

APPLICATION based on Article 263 TFEU and seeking annulment, first, of Council Decision (CFSP) 2018/90 of 22 January 2018 amending Decision (CFSP) 2017/2074 concerning restrictive measures in view of the situation in Venezuela (OJ 2018 L 16 I, p. 14) and of Council Decision (CFSP) 2018/1656 of 6 November 2018 amending Decision (CFSP) 2017/2074 concerning restrictive measures in view of the situation in Venezuela (OJ 2018 L 276, p. 10) and, second, of Council Implementing Regulation (EU) 2018/88 of 22 January 2018 implementing Regulation (EU) 2017/2063 concerning restrictive measures in view of the situation in Venezuela (OJ 2018 L 16 I, p. 6), and of Council Implementing Regulation (EU) 2018/1653 of 6 November 2018 implementing Regulation (EU) 2017/2063 concerning restrictive measures in view of the situation in Venezuela (OJ 2018 L 276, p. 1), in so far as those acts concern the applicant,

THE GENERAL COURT (Seventh Chamber),

composed of R. da Silva Passos, President, I. Reine (Rapporteur) and L. Truchot, Judges,

Registrar: B. Lefebvre, Administrator,

having regard to the written part of the procedure and further to the hearing on 3 September 2020,

gives the following

Judgment

 Background to the dispute

1        The applicant, Ms Tibisay Lucena Ramírez, is the President of the Consejo Nacional Electoral (National Electoral Council) (‘CNE’) of Venezuela. Pursuant to Articles 292 and 293 of the Venezuelan Constitution, the CNE exercises ‘electoral power’ in its role as the governing body to which other bodies are subject. As such, in particular, it regulates the application of electoral law, and it organises, administers, directs and supervises all acts relating to the election of candidates responsible for popular representation, including referenda. As part of its mission, it is required, inter alia, to guarantee the equality, reliability, impartiality, transparency and effectiveness of electoral processes.

 Implementation of the system of restrictive measures: Decision (CFSP) 2017/2074 and Regulation (EU) 2017/2063

2        On 13 November 2017, the Council of the European Union adopted Decision (CFSP) 2017/2074 concerning restrictive measures in view of the situation in Venezuela (OJ 2017 L 295, p. 60). The reason for adopting that decision, according to recital 1 thereof, was the continuing deterioration of democracy, the rule of law and human rights in Venezuela.

3        Decision 2017/2074 contains, in essence, first, a prohibition on exporting to Venezuela arms, military equipment or any other equipment that might be used for internal repression, as well as monitoring equipment, technology or software and, secondly, a prohibition on providing financial, technical or other services in relation to such goods and technologies.

4        Article 6(1) of Decision 2017/2074 provides, in addition, as follows:

‘Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of:

(a)      natural persons responsible for serious human rights violations or abuses or the repression of civil society and democratic opposition in Venezuela; or

(b)      natural persons whose actions, policies or activities otherwise undermine democracy or the rule of law in Venezuela;

as listed in Annex I.’

5        Article 7 of Decision 2017/2074 provides:

‘1. All funds and economic resources belonging to or owned, held or controlled by:

(a)      natural or legal persons, entities or bodies responsible for serious human rights violations or abuses or the repression of civil society and democratic opposition in Venezuela;

(b)      natural or legal persons, entities or bodies whose actions, policies or activities otherwise undermine democracy or the rule of law in Venezuela;

as listed in Annex I, shall be frozen.

2. All funds and economic resources belonging to or owned, held or controlled by natural or legal persons, entities and bodies associated with the persons, entities or bodies referred to in paragraph 1, as listed in Annex II, shall be frozen.

3. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in Annex I or II.

…’

6        Article 8 of Decision 2017/2074 reads as follows:

‘1. The Council, acting by unanimity upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, shall establish and amend the lists in Annexes I and II.

2. The Council shall communicate the decision referred to in paragraph 1, including the grounds for the listing, to the natural or legal person, entity or body concerned, either directly, if the address is known, or through the publication of a notice, providing such person, entity or body with an opportunity to present observations.

3. Where observations are submitted, or where substantial new evidence is presented, the Council shall review the decision referred to in paragraph 1 and inform the natural or legal person, entity or body concerned accordingly.’

7        The second paragraph of Article 13 of Decision 2017/2074 provides that the decision is to be kept under constant review and is to be renewed, or amended as appropriate, if the Council deems that its objectives have not been met.

8        On the date when Decision 2017/2074 was adopted, Annexes I and II thereto did not yet contain the name of any person or entity.

9        On the basis of Article 215 TFEU and Decision 2017/2074, on 13 November 2017, the Council adopted Regulation (EU) 2017/2063 concerning restrictive measures in view of the situation in Venezuela (OJ 2017 L 295, p. 21). Regarding the freezing of funds of the persons concerned, that regulation reproduces, in essence, the provisions of Decision 2017/2074. In particular, Annexes IV and V to the regulation correspond, respectively, to Annexes I and II to Decision 2017/2074. Pursuant to Article 17(4) of that regulation, those two annexes are to be reviewed at regular intervals and at least every 12 months.

10      On the date when Regulation 2017/2063 was adopted, Annexes IV and V thereto did not yet contain the name of any person or entity.

11      The first paragraph of Article 13 of Decision 2017/2074 provided, in its initial version, that that decision was to apply until 14 November 2018.

12      By contrast, no expiry date was specified in Regulation 2017/2063.

 Inclusion of the applicant’s name on the lists: Decision (CFSP) 2018/90 and Implementing Regulation (EU) 2018/88

13      On 22 January 2018, the Council adopted Decision (CFSP) 2018/90 amending Decision 2017/2074 (OJ 2018 L 16 I, p. 14). On the same day, the Council adopted Implementing Regulation (EU) 2018/88 implementing Regulation 2017/2063 (OJ 2018 L 16 I, p. 6). That decision and that implementing regulation (together, ‘the initial acts’) were published that day in the Official Journal of the European Union. Recital 4 of the initial acts states that ‘in view of the continuing deterioration of the situation in Venezuela, seven persons [had to] be included in the list of natural and legal persons, entities and bodies subject to restrictive measures’ in Annex I to Decision 2017/2074 and Annex IV to Regulation 2017/2063. The initial acts therefore amended those annexes. The applicant’s name was thus included in them as follows: ‘3. – Name: Tibisay Lucena Ramírez – Identifying information: Date of birth: 26.4.1959 – Reasons: President of the [CNE]. Her actions and policies have undermined democracy and the rule of law in Venezuela, including by facilitating the establishment of the Constituent [National] Assembly by failing to ensure that the CNE remains an impartial and independent institution in accordance with the Venezuelan Constitution. – Date of listing: 22.1.2018’.

14      On 23 January 2018, a notice for the attention of the persons subject to the restrictive measures provided for in Decision 2017/2074, as amended by Decision 2018/90, and in Regulation 2017/2063, as implemented by Implementing Regulation 2018/88, concerning restrictive measures in view of the situation in Venezuela was published in the Official Journal (OJ 2018 C 23, p. 4).

15      By email of 20 February 2018, the applicant’s representative asked the Council to provide access to the file containing the evidence, documents and information justifying the initial acts. The Council acknowledged receipt of that request the following day.

16      By email of 3 April 2018, the Council sent the applicant’s representative the two documents on which the initial acts were based, namely a working document, dated 22 March 2018, bearing the reference WK 3499/2018 INIT, and extract 3 of an annex to a document dated 27 March 2018 bearing the reference COREU CFSP/0702/17.

17      In response to a request for clarification from the applicant’s representative, on 6 April 2018 the Council explained that the document COREU CFSP/0702/17 in fact dated from 6 December 2017 but that, since it had had to be declassified due to the request for access, it bore the date 27 March 2018.

 Events subsequent to the bringing of the present action

18      On 6 November 2018, Council Decision (CFSP) 2018/1656 amending Decision 2017/2074 (OJ 2018 L 276, p. 10) extended the application of the restrictive measures until 14 November 2019, including in respect of the applicant. Decision 2018/1656 also replaced item 7 in Annex I to Decision 2017/2074, thereby amending the reason for listing another person subject to the restrictive measures at issue. On 6 November 2018, Council Implementing Regulation (EU) 2018/1653 implementing Regulation 2017/2063 (OJ 2018 L 276, p. 1) also amended to the same effect item 7 of Annex IV to the latter regulation.

19      By letter of 7 November 2018, the Council informed the applicant’s representative that the decision had been taken to extend the application of the restrictive measures at issue in respect of the applicant. In addition, the representative was informed of the possibility of submitting an application for revision of that decision to the Council by 23 August 2019. That letter went unanswered.

20      On 7 November 2018, a notice for the attention of the persons subject to the restrictive measures provided for in Decision 2017/2074, as amended by Decision 2018/1656, and in Regulation 2017/2063, as implemented by Implementing Regulation 2018/1653, concerning restrictive measures in view of the situation in Venezuela was published in the Official Journal(OJ 2018 C 401, p. 2).

 Procedure and forms of order sought

21      By application lodged at the Court Registry on 16 April 2018, the applicant brought the present action.

22      The written part of the procedure was closed on 18 December 2018.

23      By separate document lodged at the Court Registry on 17 January 2019, the applicant modified her application, on the basis of Article 86 of the Rules of Procedure of the General Court, in order to seek in addition the annulment of Decision 2018/1656 and Implementing Regulation 2018/1653, in so far as those acts concern her. The Council submitted its observations on the statement of modification to the Court Registry on 15 February 2019.

24      Following a change in the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was transferred to the Seventh Chamber, to which this case was consequently assigned.

25      By letter of 20 December 2019, the parties were invited to submit their observations on the potential joinder of Cases T‑245/18, Benavides Torres v Council, T‑246/18, Moreno Pérez v Council, T‑247/18, Lucena Ramírez v Council, T‑248/18, Cabello Rondón v Council, T‑249/18, Saab Halabi v Council and T‑35/19, Benavides Torres v Council, for the purposes of the oral part of the procedure. The parties replied that they did not have any objections to such a joinder.

26      By decision of 28 January 2020, the President of the Seventh Chamber of the General Court decided to join those cases (‘the joined cases’) for the purposes of the oral part of the procedure. On the same day, the oral part of the procedure was opened and the date for the hearing was fixed for 23 April 2020.

27      On 7 February 2020, in the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, the Court asked the parties in the joined cases to answer certain questions in writing before the hearing and orally at the hearing. The parties in the joined cases replied to the questions for written answer within the prescribed period. On 13 March 2020, the Court invited them to submit observations on the other party’s replies. The parties in the joined cases submitted their observations within the prescribed period.

28      As the hearing, originally scheduled for 23 April 2020, was postponed on account of the health crisis, the parties in the joined cases presented oral argument and replied to the Court’s oral questions at the hearing on 3 September 2020.

29      The applicant claims that the Court should:

–        annul the initial acts, and Decision 2018/1656 and Implementing Regulation 2018/1653 (together, ‘the contested acts’) in so far as their provisions concern the applicant;

–        order the Council to pay the costs.

30      The Council contends that the Court should:

–        dismiss the action;

–        in the alternative, if the restrictive measures were to be annulled in respect of the applicant, order that the effects of Decision 2018/1656 be maintained in relation to her until the partial annulment of Implementing Regulation 2018/88 takes effect;

–        order the applicant to pay the costs.

 Law

 Admissibility of the modification of the application

31      In her statement of modification, by which the applicant seeks the annulment of Decision 2018/1656 and Implementing Regulation 2018/1653, she submits that, by those two acts, the Council maintained her name on the list in Annex I to Decision 2017/2074 and on the list in Annex IV to Regulation 2017/2063 after her situation was reviewed and for the same reason as that stated for her initial listing. That decision and that implementing regulation had the effect of extending the period during which the restrictive measures at issue apply to her until 14 November 2019.

32      In the context of its observations on the statement of modification, the Council raises a plea of inadmissibility in so far as that statement seeks the annulment of Implementing Regulation 2018/1653, on the ground that the applicant lacks standing to bring proceedings. The Council argues that that implementing regulation does not specifically name the applicant and does not replace a measure of direct and individual concern to her. As a result, the applicant does not have standing to bring proceedings.

33      In its reply to a question asked in the context of measures of organisation of procedure, the Council adds that the periodic review provided for in Article 17(4) of Regulation 2017/2063 does not necessarily lead to the adoption of a new legal act. According to the Council, in the present case, if it had not been necessary to amend the information regarding a person other than the applicant, Implementing Regulation 2018/1653 would not have been adopted. Neither the purpose nor the effect of that act was to maintain the applicant’s name on the list in the annex to Regulation 2017/2063. As a result, the Council submits that the applicant does not have an interest in bringing proceedings against that act.

34      In that regard, it must be observed that the second paragraph of Article 13 of Decision 2017/2074 provides that that decision is to be kept under constant review. Recital 2 of Decision 2018/1656 expressly refers to a review of Decision 2017/2074.

35      By contrast, Implementing Regulation 2018/1653 does not contain such a reference. It cannot, however, be inferred therefrom that the Council did not review the situation and that that absence of review precludes the modification of the application. Article 17(4) of Regulation 2017/2063 provides, in fact, that the list set out in Annex IV thereto is to be reviewed at regular intervals and at least every 12 months. However, the admissibility of an action cannot depend on the Council’s discretion as to whether or not it considers that it has in fact reviewed the retention on the lists at issue of the name of the person concerned, which would be contrary to the principle of legal certainty (judgment of 9 July 2014, Al-Tabbaa v Council, T‑329/12 and T‑74/13, not published, EU:T:2014:622, paragraph 47). The Council cannot therefore claim, in the present case, that it has not reviewed the applicant’s situation, contrary to its obligations, in order to gain an advantage concerning the admissibility of the action brought against Implementing Regulation 2018/1653. Moreover, on account of the fact that the two texts are closely interrelated, it must be held that the review of the situation which the Council acknowledges it carried out in order to adopt Decision 2018/1656 was a necessary preliminary step to the adoption of Implementing Regulation 2018/1653 also.

36      In the light of the foregoing, the pleas of inadmissibility raised by the Council must be rejected and it must be held that the form of order sought in the statement of modification is admissible, including in so far as it covers Implementing Regulation 2018/1653.

 Substance

37      In support of her action, the applicant relies on two pleas in law alleging, first, infringement of the obligation to state reasons, of the principle of sound administration, and of her rights of defence and her right to effective judicial protection and, second, a lack of evidence and ‘manifest errors of assessment’.

 The first plea in law, alleging an infringement of the obligation to state reasons, of the principle of sound administration and of the rights of the defence and of the right to effective judicial protection

38      It should be noted at the outset that the first plea in law is directed only against the initial acts, no such plea having been raised in the statement of modification.

39      First, the applicant alleges, in essence, that the initial acts do not contain an adequate statement of reasons. In that regard, she submits that the grounds set out in Annex I to Decision 2017/2074 and Annex IV to Regulation 2017/2063, as amended by the initial acts, were too vague for her to be able to fully assess which specific facts the Council was referring to. Second, she submits that, despite the steps she took on 20 February 2018, the Council did not grant her access to the documents justifying the initial acts until 3 April thereafter, namely at a time when she had only 13 calendar days or 9 working days remaining to lodge her action. The applicant therefore concludes that the Council did not satisfy, within a reasonable time, her request for access to its file and thus infringed the principle of sound administration, her rights of defence and her right to effective judicial protection.

40      The Council contests the applicant’s arguments.

–       Alleged infringement of the obligation to state reasons

41      In accordance with the case-law, the obligation to state the reasons on which an act adversely affecting an individual is based, as provided for in the second paragraph of Article 296 TFEU and enshrined in Article 41(2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’), is a corollary of the principle of respect for the rights of the defence. It should be noted in that regard, that the specific purpose for the statement of reasons is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, second, to enable those Courts to review the legality of that act (see judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 29 and the case-law cited, and of 26 October 2016, Kaddour v Council, T‑155/15, not published, EU:T:2016:628, paragraphs 56 and 57 and the case-law cited).

42      The statement of reasons for an act adversely affecting an individual must set out the facts and the legal considerations that have decisive importance in the context of that act (see judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 30 and the case-law cited).

43      As regards restrictive measures adopted under the common foreign and security policy (CFSP), where the person concerned is not afforded the opportunity to be heard before the adoption of an initial decision to freeze funds, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling the person concerned, at least after that decision has been adopted, to make effective use of the legal remedies available to him or her in order to challenge the lawfulness of that decision (judgments of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 51, and of 26 October 2016, Kaddour v Council, T‑155/15, not published, EU:T:2016:628, paragraph 58).

44      Consequently, unless overriding considerations involving the security of the European Union and its Member States or the conduct of their international relations militate against the provision of certain information, the Council is required to advise the person or entity concerned by the restrictive measures of the actual specific reasons why it considers that those measures had to be adopted. It must thus mention the matters of fact and law on which the legal justification for the relevant measures depends and the considerations which led it to adopt those measures (judgment of 9 July 2009, Melli Bank v Council, T‑246/08 and T‑332/08, EU:T:2009:266, paragraph 144).

45      The statement of reasons must, however, be appropriate to the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him or her to understand the scope of the measure taken that concerns him or her (judgments of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraphs 53 and 54, and of 25 April 2013, Gossio v Council, T‑130/11, not published, EU:T:2013:217, paragraphs 45 and 46).

46      It must also be borne in mind that the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (see judgment of 30 January 2019, Stavytskyi v Council, T‑290/17, EU:T:2019:37, paragraph 57 and the case-law cited).

47      The present complaint must be examined in the light of those principles.

48      In the present case, as regards the reasons why the Council considered that the applicant should specifically be the subject of restrictive measures, the statement of reasons, reproduced in paragraph 13 above, which is set out in points 3 of Annex I to Decision 2017/2074 and of Annex IV to Regulation 2017/2063, as amended by the initial acts, identifies, contrary to what is claimed in essence by the applicant, the actual specific information which shows, according to the Council, that the applicant was involved in undermining democracy and the rule of law in Venezuela.

49      It should be noted that the preambles to the initial acts refer to Decision 2017/2074 and Regulation 2017/2063 respectively. In recitals 1 and 5 to 8 of Decision 2017/2074, and in recitals 1 and 2 of Regulation 2017/2063, the Council set out the general context which led it to lay down restrictive measures against Venezuela and certain Venezuelan persons or entities. It follows that that general context was characterised by the continuing deterioration of democracy, the rule of law and human rights in Venezuela as a result, inter alia, of the decision of the authorities to elect a National Constituent Assembly (‘the Constituent Assembly’), which exacerbated the crisis in Venezuela and undermined other institutions provided for in the Venezuelan Constitution, such as the National Assembly. Furthermore, in view of her role as President of the CNE, the applicant could not have been unaware of that context.

50      Furthermore, as indicated in paragraphs 4 and 5 above, in accordance with Article 6(1) and Article 7(1) of Decision 2017/2074, the general listing criterion established by the Council covers, inter alia, natural persons ‘whose actions, policies or activities otherwise undermine democracy or the rule of law in Venezuela’. That criterion is also reproduced in Article 8(3) of Regulation 2017/2063.

51      Therefore, a reading of the reasons given for the applicant’s listing makes it possible to understand that the specific and concrete reasons which led the Council to adopt restrictive measures against the applicant are based on the applicant’s alleged responsibility for undermining democracy and the rule of law in Venezuela, since, by her actions and her policies, as President of the CNE, she facilitated the establishment of the Constituent Assembly, which, according to the Council, undermined the interests of institutions provided for under the Venezuelan Constitution, and did not guarantee, in breach of that Constitution, impartiality and independence of the institution over which she presided.

52      Moreover, it should be noted that the fact that the applicant was able to understand the reasons which, according to the Council, justified the adoption of restrictive measures against her, is confirmed by the wording of the second plea in the present action. The applicant was able to identify the specific facts alleged against her and to dispute their accuracy. The applicant was also able to set out the legal framework defining the role of the CNE and governing its action and thus claim that the initial acts were the result of a misinterpretation of that framework. Moreover, the applicant was able to submit, having regard to the role of the President of the CNE, that she was unable, in that capacity, to influence the latter’s decisions. The applicant was also able to explain that the organisation of elections to the Constituent Assembly complied with the Venezuelan Constitution, contrary to the Council’s contention, and that the CNE had acted impartially and independently on that occasion and that its action consisted of protecting the voting rights of voters from external factors and attacks. Furthermore, the applicant has been able to refute the allegations of electoral fraud made against her by the Council.

53      It follows that the statement of reasons for the initial acts enabled the applicant to understand and challenge the reasons for including her name on the lists at issue.

54      In view of the foregoing, the complaint alleging that the Council infringed its obligation to state reasons must be rejected.

–       Alleged infringement of the principle of sound administration, the rights of the defence and the right to effective judicial protection

55      As a preliminary point, it must be noted that the applicant’s complaint that the Council infringed the principle of sound administration, her right to effective judicial protection and her rights of defence is not supported by arguments specific to each of those infringements, but merely refers to a common line of argument. In those circumstances, those alleged infringements must be examined together.

56      It must be recalled that respect for the rights of the defence, which is affirmed in Article 41(2)(a) of the Charter, to which the EU Treaty attaches the same legal value as the Treaties, includes, inter alia, the right to have access to the file, whereas the right to effective judicial protection, which is affirmed in Article 47 of the Charter, requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him or her is based (see, to that effect, judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 55).

57      More specifically, the rights of the defence and the right to effective judicial protection require that the EU authority which adopts restrictive measures communicate to the person concerned the evidence on which those measures are based or grant him or her the right to be informed of that evidence within a reasonable period after those measures were enacted (see, to that effect, judgments of 21 March 2014, Yusef v Commission, T‑306/10, EU:T:2014:141, paragraph 90, and of 13 December 2016, Al-Ghabra v Commission, T‑248/13, EU:T:2016:721, paragraph 49).

58      In that regard, it must be noted that, in the case of an initial decision to freeze funds, the Council is not obliged to inform the person or entity concerned beforehand of the grounds on which that institution intends to rely in order to include that person or entity’s name in the relevant list, in order to ensure the surprise effect necessary for the effectiveness of such a measure. In such a case, it is, as a rule, enough if the institution notifies the person or entity concerned of the grounds and affords it the right to be heard at the same time as, or immediately after, the decision is adopted (see, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 61).

59      In the present case, in the particular context of the initial inclusion on the lists at issue requiring a surprise effect, irrespective of whether the Council communicated its file to the applicant within a reasonable period of time, it must be determined whether the applicant was not in a position to challenge the evidence in that file before the Court (see, by analogy, judgments of 18 September 2014, Georgias and Others v Council and Commission, T‑168/12, EU:T:2014:781, paragraph 106, and of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 153). It must be held that the applicant was put in a position to be able to challenge the evidence in that file before the Court, as is apparent from the arguments relied on in the application described in paragraph 52 above, in the context of which the applicant calls into question the relevance and probative value of the evidence used by the Council in its file.

60      Furthermore, if the applicant wished to raise arguments which she had not had the opportunity of relying on in her application because of the allegedly late communication of the file by the Council, she could have put forward any additional arguments in her statement of modification of the application. In that statement, the applicant claimed that the errors made in the adoption of the initial acts had been repeated by the Council when it adopted Decision 2018/1656 and Implementing Regulation 2018/1653. She merely claimed that the second plea, as raised in the application, could simply be transposed to her application for annulment of the latter decision and of the latter implementing regulation.

61      Moreover, the applicant has failed to explain, including at the hearing, what arguments and evidence she could have put forward if she had received the Council’s file earlier.

62      Consequently, the applicant has not shown that the allegedly late communication of the Council’s file infringed her rights of defence, her right to effective judicial protection and the principle of sound administration.

63      In the light of the foregoing considerations, the present complaint and, therefore, the first plea in law in its entirety must be rejected.

 The second plea in law, alleging a lack of evidence and ‘manifest errors of assessment’

64      The second plea in law is directed against all of the contested acts.

65      The applicant divides this plea in law into two parts, the first alleges that the Council did not prove her involvement in the actions to which the Council refers, and the second alleges ‘manifest errors of assessment’.

66      It should be noted that the two parts overlap, in that the applicant deals therein with her role as President of the CNE and the undermining of democracy in Venezuela which is alleged against her. They should therefore be examined together.

67      The applicant submits that the Council based the contested acts on the fact that, as President of the CNE, she was responsible for the CNE’s actions. However, in the absence of evidence proving her direct involvement in the facts alleged, her role as President of the CNE alone is not sufficient to prove that she undermined democracy and the rule of law in Venezuela. Inclusion on a list of persons subject to restrictive measures cannot be based on presumptions that are unsubstantiated by the conduct of the persons concerned.

68      The applicant submits that the provisions applicable to the CNE do not confer on its president responsibility for the actions, decisions or omissions of that institution and that the president is entrusted only with organisational and administrative tasks. In addition, although, as a member of the CNE, a role which is entirely independent of that of President of the CNE, she could exert, through her vote, an influence on the decisions of the CNE, those decisions would nevertheless be adopted by a simple majority of votes, without the president having a casting vote.

69      The applicant adds that the Council made a manifest error of assessment in failing to take account of the fact that the provisions applicable to the CNE guarantee its independence.

70      The applicant also contests the reason for listing according to which she facilitated the establishment of the Constituent Assembly, which the Council considers to be unconstitutional. She submits, in that regard, that, on 1 May 2017, the then President of Venezuela adopted Decree No 2.830 calling for that assembly to be established. She also states that the CNE considered that that decree complied with the Venezuelan Constitution on the ground, first, that, under Article 348 of the Constitution, the President of the Republic, sitting with the Cabinet of Ministers, has the right to call a Constituent Assembly and, second, that the Constitution does not lay down any specific procedure in that regard. The applicant adds that the Tribunal Supremo de Justicia (Supreme Court, Venezuela) confirmed the CNE’s decision by its judgment No 378 of 31 May 2017. Moreover, although the Secretary General of the Organization of American States (OAS) did indeed consider the Constituent Assembly to be unconstitutional, he had specifically failed to take account of Article 348 of the Constitution.

71      The Council contests the applicant’s arguments.

72      It should be borne in mind that the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires, inter alia, that the Courts of the European Union are to ensure that the decision, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the 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.

Delivered in open court in Luxembourg on 14 July 2021.

*      Language of the case: English.

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