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

JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

14 July 2021 (*) (1)

(Common foreign and security policy – Restrictive measures taken in view of the situation in Venezuela – Freezing of funds – Lists of persons, entities and bodies subject to the freezing of funds and economic resources – Retention of the applicant’s name on the lists – Error of assessment)

In Case T‑35/19,

Antonio José Benavides Torres, residing in Caracas (Venezuela), represented by L. Giuliano and F. Di Gianni, lawyers,

applicant,

v

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

defendant,

APPLICATION based on Article 263 TFEU and seeking annulment 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 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, Mr Antonio José Benavides Torres, was the Chief of the Distrito Capital (Capital District) Government of Venezuela until 3 January 2018 and General Commander of the Guardia Nacional Bolivariana (Bolivarian National Guard) until 21 June 2017.

 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: ‘4 – Name: Antonio José Benavides Torres – Identifying information: Date of birth: 13.6.1961 – Reasons: Chief of the Capital District (Distrito Capital) Government. General Commander of the Bolivarian National Guard until 21 June 2017. Involved in repression of civil society and democratic opposition in Venezuela, and responsible for serious human rights violations committed by the Bolivarian National Guard under his command. His actions and policies as General Commander of the Bolivarian National Guard, including the Bolivarian National Guard taking the lead in the policing of civilian demonstrations and publicly advocating that military courts should have jurisdiction over civilians, have undermined the rule of law in Venezuela. – 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 3 April 2018, the Council sent the applicant’s representative the two documents on which the Decision 2018/90 and Implementing Regulation 2018/88 were based, namely a working document, dated 22 March 2018, bearing the reference WK 3501/2018 INIT, and extract 4 of an annex to a document dated 27 March 2018 bearing the reference COREU CFSP/0702/17. By the same email, the applicant’s representative was informed of the possibility of submitting observations in the context of the annual review of the restrictive measures at issue to the Council until 1 September 2018.

16      By application lodged at the Court Registry on 16 April 2018, the applicant brought an action registered under case number T‑245/18 seeking, in essence, the annulment of the initial acts in so far as they concerned him.

17      By email of 30 October 2018, the applicant’s representative informed the Council that the applicant no longer held the positions of General Commander of the Bolivarian National Guard and Chief of the Capital District Government. For those reasons, he requested the Council to withdraw the applicant’s name from the lists at issue.

 Retention of the applicant’s name on the lists: Decision (CFSP) 2018/1656 and Implementing Regulation (EU) 2018/1653

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

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.

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 17 January 2019, the applicant brought the present action.

22      The written part of the procedure was closed on 5 August 2019.

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

24      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.

25      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.

26      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.

27      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.

28      The applicant claims that the Court should:

–        annul the contested acts in so far as their provisions concern the applicant;

–        order the Council to pay the costs.

29      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 him until the partial annulment of Implementing Regulation 2018/88 takes effect;

–        order the applicant to pay the costs.

 Law

 Admissibility of the action in so far as it seeks the annulment of Implementing Regulation 2018/1653

30      In its defence, the Council submits that the action is inadmissible in so far as it seeks the annulment of Implementing Regulation 2018/1653, on the ground that the applicant lacks standing to bring proceedings. The Council contends that that implementing regulation does not name the applicant specifically and does not replace a measure of direct and individual concern to him. In addition, that implementing regulation does not concern the applicant directly or indirectly and he cannot therefore seek its annulment. As a result, the applicant does not have standing to bring proceedings.

31      The applicant submits that the fact that Implementing Regulation 2018/1653 does not name him specifically does not mean that it does not have an effect on his situation. That implementing regulation is of direct and individual concern to him. In that connection, he observes that that regulation ‘extended de facto the scope of [Regulation 2017/2063] to the applicant’, meaning that his name was retained on the lists at issue, for the same reasons as those set out in Regulation 2017/2063 as amended by Implementing Regulation 2018/88.

32      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.

33      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 admissibility 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.

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

 Substance

35      In support of his action, the applicant relies on a single plea in law alleging a ‘manifest error of assessment’ on the part of the Council. He divides the plea into two parts, alleging, first, that the periodic review of his situation was manifestly inaccurate and incomplete, and, second, that the retention of the restrictive measures against him was no longer justified on account of the fact that, after 4 January 2018, he no longer held any role within the political or military authorities of Venezuela and no longer had any relationship with them.

36      It should be noted that the two parts overlap in so far as, in the context of the first part, the applicant submits, in essence, that the Council committed a manifest error of assessment by failing to take into consideration the change in the applicant’s situation after 4 January 2018. Therefore, they should be examined together.

37      The applicant submits that his former roles as Chief of the Capital District Government and General Commander of the Bolivarian National Guard cannot justify the retention of his name on the lists at issue.

38      The applicant states, in the first place, that the Council does not provide any evidence regarding the applicant’s responsibility for serious human rights violations or the repression of civil society and democratic opposition after 4 January 2018. He submits that he is no longer associated with persons, entities or bodies whose policies or activities undermine democracy. In that regard, the applicant emphasises that, since 4 January 2018, he has ceased all political activities and no longer has any direct or indirect relationship with the Venezuelan political parties or the Venezuelan regime. He adds that he manages a small law firm which is fully independent from the Venezuelan Government and any other public authority, and that he does not benefit in any manner from the Venezuelan Government in his exercise of his profession.

39      The applicant claims, in the second place, that the retention of his name on the lists at issue is contrary to the preventive purpose of the restrictive measures. Those measures were intended to induce the Venezuelan authorities to respect the Venezuelan Constitution and fundamental rights and freedoms. However, the applicant states that retaining his name on the lists at issue will not encourage the Venezuelan authorities to respect the Venezuelan Constitution or the rule of law, in particular because he has no relationship with those authorities and therefore cannot in any event influence their conduct.

40      In the third place, the applicant states that the decision to maintain his name on the lists at issue deprives the restrictive measures of their effectiveness. The periodic review should show the change in situation and ensure that additional evidence justifies a name being retained. However, the applicant observes that the Council relies solely on evidence justifying the initial inclusion of his name on the lists at issue.

41      The Council disputes the applicant’s arguments.

42      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).

43      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).

44      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).

45      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).

46      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)).

47      It is in the light of those principles that it is appropriate to examine whether the Council committed an error of assessment when it, by the contested acts, decided to retain the applicant’s name on the lists at issue following the periodic review.

48      At the outset, it must be noted that the fact that the grounds for including the applicant’s name on the lists at issue refer to conduct which occurred before the adoption of the contested acts and which had ended on that date does not necessarily mean that the restrictive measures retained against him by those acts are obsolete. Clearly, in so far as the Council decided to refer, in the grounds for retaining the applicant’s name on the lists at issue, to specific situations involving the Bolivarian National Guard which he commanded, there could be no question of anything other than past conduct. Such a reference cannot therefore be considered to be of no relevance solely because the conduct in question dates from the more or less remote past (see, to that effect, judgment of 12 February 2020, Amisi Kumba v Council, T‑163/18, EU:T:2020:57, paragraph 83 and the case-law cited).

49      That interpretation is borne out by the second paragraph of Article 13 of Decision 2017/2074, as amended by Decision 2018/1656, contested in the present case, pursuant to which Decision 2017/2074 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. Such a provision allows the Council to retain persons’ names on the lists at issue for the same reasons that gave rise to their initial inclusion, without the persons in question having committed any further human rights violations during the period preceding the review, if that retention is still justified in the light of all the relevant circumstances and, in particular, of the fact that the objectives pursued by the restrictive measures have not been achieved (see, by analogy, judgment of 12 February 2020, Amisi Kumba v Council, T‑163/18, EU:T:2020:57, paragraph 84 and the case-law cited).

50      In that connection, it must be borne in mind that restrictive measures are of a precautionary and, by definition, provisional nature, the validity of which always depends on whether the factual and legal circumstances which led to their adoption continue to apply and on the need to persist with them in order to achieve their objective. It is thus for the Council, in the course of its periodic review of those restrictive measures, to conduct an updated assessment of the situation and to appraise the impact of such measures, in order to determine whether they have made it possible to attain the objectives pursued by the initial inclusion of the names of the persons and entities concerned on the list at issue or whether the same conclusion in respect of those persons and entities can still be drawn (judgment of 12 February 2020, Amisi Kumba v Council, T‑163/18, EU:T:2020:57, paragraphs 58 and 59).

51      It must therefore first be examined whether, at the time when the contested acts were adopted, the Council carried out an updated assessment of the legal and factual circumstances which led to restrictive measures being imposed on the applicant, justifying the retention of those measures having regard to the attainment of the objective they were pursuing.

52      In that regard, the reason given by the Council for the adoption of the restrictive measures at issue was the continuing deterioration of democracy, the rule of law and human rights in Venezuela; it expressed, inter alia, its concern at the numerous reports of human rights violations and excessive use of force, and called on the Venezuelan authorities to respect the Venezuelan Constitution and the rule of law and to ensure that fundamental rights and freedoms, including the right to peaceful demonstration, are guaranteed (see, in that regard, recitals 1 to 6 of Decision 2017/2074). To that end, the restrictive measures were intended to put pressure on persons held to be 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 on persons, entities and bodies associated with them (see, in that regard, recital 7 of Decision 2017/2074).

53      It is in that context that the applicant’s name was included in the lists at issue, by Decision 2018/90 and Implementing Regulation 2018/88, on the grounds that he held the position of Chief of the Capital District Government and had held the position of General Commander of the Bolivarian National Guard until 21 June 2017 and he was involved in the repression of Venezuelan civil society and democratic opposition, that he was responsible for serious human rights violations committed under his command by the Bolivarian National Guard, and that his actions and policies as General of the Bolivarian National Guard, in particular where it played a leading role in the maintenance of the order during civil demonstrations and when he publicly advocated the jurisdiction of military courts over civilians, undermined the rule of law in Venezuela.

54      In today’s judgment, Benavides Torres v Council (T‑245/18, not published), the Court observed that the Council was fully entitled to consider that, under the applicant’s command, the Bolivarian National Guard made use, in practice, of excessive force in the maintenance of the order during civil demonstrations and, having regard to the general context of the situation in Venezuela, the applicant had been involved in the repression of Venezuelan civil society and democratic opposition and that he was responsible for serious human rights violations committed under his command by the Bolivarian National Guard.

55      The applicant does not dispute that the positions of Chief of the Capital District Government and General Commander of the Bolivarian National Guard are very high-ranking positions in Venezuela and, by holding those positions, the applicant could be regarded as holding positions of responsibility within the institutional system of Venezuela and was therefore, in carrying out those duties, fully connected, inter alia, with the Venezuelan regime.

56      In addition, it is common ground that, at the time when the contested acts were adopted, there had been no change in the regime in power in Venezuela.

57      However, it is clear that, at the time when the contested acts were adopted on 6 November 2018, the applicant had no longer held the position of General Commander of the Bolivarian National Guard for approximately one and a half years, that is to say, since 21 June 2017. In addition, as stated by the applicant, without being challenged by the Council, he had also ceased to serve as Chief of the Capital District Government since 4 January 2018, that is to say, approximately 10 months before the adoption of the contested acts in the present case.

58      In those circumstances, given that no change in the regime in power in Venezuela had taken place at the time when the contested acts were adopted, it was relevant for the Council to examine, at that date, the connections between the applicant and the government in power, in order to assess whether the legal and factual circumstances which led to restrictive measures being imposed on the applicant, justifying the retention of those measures having regard to the attainment of the objective they pursue, recalled in paragraph 52 above, continued to apply.

59      However, it is apparent that the retention of the applicant’s name on the lists at issue was justified by the same evidence relied on in support of the initial inclusion of his name (see paragraph 13 above). At the hearing, the Council confirmed that, during the review which led to the adoption of the contested acts, it had not taken into consideration any evidence subsequent to the acts initially including the applicant’s name on the lists at issue.

60      Admittedly, it must be stated that a considerable period of time, exceeding 10 months, passed between the applicant’s ceasing to hold his position of Chief of the Capital District Government and the adoption of the contested acts. In that regard, it should be noted that, in the context of the updated assessment it was required to carry out when reviewing the restrictive measures at issue, the Council did not establish or even claim that it was impossible for it to obtain the information relating to the applicant’s ceasing to hold his position of Chief of the Capital District Government.

61      Nevertheless, it should be borne in mind that the mechanism for reviewing the restrictive measures laid down in Decision 2017/2074 provides that the persons subject to those restrictive measures are invited to act by requesting the review of that decision within a certain period. In that regard, it is apparent from Article 8 of that decision that the Council gives the person concerned by the restrictive measures the opportunity of submitting observations and will review its decision if observations are submitted or substantial new evidence is presented. Thus, the person on whom the restrictive measures are imposed is in the best position to inform the Council of any change in his or her specific situation.

62      Regarding the applicant, the Council had specifically invited his representative, by email of 3 April 2018, to submit observations in the context of the annual review of the restrictive measures at issue by 1 September 2018 (see paragraph 15 above). However, it is apparent that the applicant informed the Council of the change in his situation only on 30 October 2018, that is, a few days before the contested acts were adopted, as stated in paragraph 17 above, whereas he must be deemed to have known that the Council had to take a decision on whether the restrictive measures at issue were to be maintained by 14 November 2018 at the latest (see paragraph 11 above).

63      In addition, it must be stated that there was no change in the regime in power in Venezuela between the time when the applicant was General Commander of the Bolivarian National Guard and Chief of the Capital District Government and the time when he no longer held those positions. However, it is not apparent from the case file, nor does the applicant – who was questioned specifically on this point at the hearing – claim that he took the decision to cease holding his various public roles in response to the undermining of the rule of law and democracy in Venezuela, in order to distance himself 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)).

64      In those circumstances, in the absence of evidence to the contrary, the Council was entitled to consider that, on the date when the contested acts were adopted, the applicant remained connected to the regime in power in Venezuela, which had not changed in relation to the time when, in the context of his position as General Commander of the Bolivarian National Guard, he had undermined democracy and the rule of law in Venezuela.

65      The foregoing considerations cannot be regarded as meaning that a presumption or reversal of the burden of proof to the applicant’s detriment has been established, contrary to the applicant’s claims. Their significance is simply that the reference, in the grounds of the contested acts, to posts formerly occupied by the applicant, discloses that the Council considered that, for that reason, he remained connected to the regime in power in Venezuela and that the Council was not aware of anything to call into question that proposition (see, by analogy, judgment of 22 April 2015, Tomana and Others v Council and Commission, T‑190/12, EU:T:2015:222, paragraph 167).

66      As a result, the single plea must be rejected and the action must be dismissed in its entirety.

 Costs

67      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to bear his own costs and to pay those incurred by the Council, in accordance with the form of order sought by the Council.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Mr Antonio José Benavides Torres to pay the costs.

Delivered in open court in Luxembourg on 14 July 2021.

*      Language of the case: English.

1      This judgment is published in extract form.

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