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 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 – Inclusion of the applicant’s name on the lists – Retention of the applicant’s name on the lists – Error of assessment)

In Case T‑552/18,

Xavier Antonio Moreno Reyes, residing in Caracas (Venezuela), represented by F. Di Gianni and L. Giuliano, lawyers,

applicant,

v

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

defendant,

APPLICATION based on Article 263 TFEU and seeking annulment, first, of Council Decision (CFSP) 2018/901 of 25 June 2018 amending Decision (CFSP) 2017/2074 concerning restrictive measures in view of the situation in Venezuela (OJ 2018 L 160 I, p. 12) 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) 2018/899 of 25 June 2018 implementing Regulation (EU) 2017/2063 concerning restrictive measures in view of the situation in Venezuela (OJ 2018 L 160 I, p. 5), 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 4 September 2020,

gives the following

Judgment

 Background to the dispute

1        The applicant, Mr Xavier Antonio Moreno Reyes, is the Secretary General of the Consejo Nacional Electoral (National Electoral Council; ‘the 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) 2018/901 and Implementing Regulation (EU) 2018/899

13      On 25 June 2018, the Council adopted Decision (CFSP) 2018/901 amending Decision 2017/2074 (OJ 2018 L 160 I, p. 12). On the same date, the Council adopted Implementing Regulation (EU) 2018/899 implementing Regulation 2017/2063 (OJ 2018 L 160 I, p. 5). 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, 11 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 in Annex IV to Regulation 2017/2063. The initial acts therefore amended those annexes. The applicant’s name was thus included in them as follows: ‘18 – Name: Xavier Antonio Moreno Reyes – Identifying information: Secretary General of the National Electoral Council – Reasons: Secretary General of the National Electoral Council (CNE). Responsible for approving CNE decisions which have undermined democracy in Venezuela, including facilitating the establishment of the illegitimate Constituent Assembly and manipulation of the electoral process – Date of listing: 25.6.2018’.

14      On 26 June 2018, a notice for the attention of the persons subject to the restrictive measures provided for in Decision 2017/2074, as amended by Decision 2018/901, and in Regulation 2017/2063, as implemented by Implementing Regulation 2018/899, concerning restrictive measures in view of the situation in Venezuela was published in the Official Journal (OJ 2018 C 222, p. 6).

15      By email of 12 July 2018, the Council sent to the applicant’s representative the two documents on which the initial acts were based, namely a working document dated 25 June 2018 bearing the reference number WK 7749/2018 INIT and extract 11 from an annex to a document dated 11 July 2018 bearing the reference COREU CFSP/0250/18.

 Events subsequent to the bringing of the present action

16      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.

17      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, he 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.

18      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

19      By application lodged at the Court Registry on 19 September 2018, the applicant brought the present action.

20      By separate document lodged at the Court Registry on 17 January 2019, the applicant modified his 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 of Implementing Regulation 2018/1653, in so far as those acts concern him. The Council submitted its observations on the statement of modification to the Court Registry on 15 February 2019.

21      The written part of the procedure was closed on 1 April 2019.

22      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.

23      By letter of 28 October 2019, the parties were invited to submit observations on the potential joinder of Cases T‑550/18, Harrington Padrón v Council, T‑551/18, Oblitas Ruzza v Council, T‑552/18, Moreno Reyes v Council, T‑553/18, Rodríguez Gómez v Council, T‑554/18, Hernández Hernández v Council and T‑32/19, Harrington Padrón v Council, for the purposes of the oral part of the procedure. The Council replied that it had no objections to such a joinder. The applicant did not reply within the prescribed period.

24      By decision of 19 November 2019, 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.

25      On 28 January 2020, the Seventh Chamber decided to set the date for the hearing in the joined cases for 24 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 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      By document lodged at the Court Registry on 14 April 2020, the Council submitted a corrigendum to one of its replies to the measures of organisation of procedure (‘the corrigendum of 14 April 2020’).

28      By document lodged at the Court Registry on 28 April 2020, the applicant requested the withdrawal of the corrigendum of 14 April 2020 on the ground that, by that corrigendum, the Council had put forward a new argument.

29      As the hearing, originally scheduled for 24 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 4 September 2020.

30      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.

31      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 2018/899 takes effect;

–        order the applicant to pay the costs.

 Law

 Admissibility of the modification of the application

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

33      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 him. As a result, the applicant does not have standing to bring proceedings.

34      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.

35      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.

36      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.

37      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

38      In support of his action, the applicant relies on two pleas in law alleging, first, ‘manifest errors of assessment’ and a lack of precise and corroborating evidence and, second, infringement of the right to property. Those pleas are directed against all of the contested acts.

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

39      The applicant divides the first plea into two parts, alleging, first, ‘manifest errors of assessment’ of his duties and role and, second, a lack of corroborating evidence and a ‘manifest error of assessment’ of the evidence.

40      It must be observed that the two parts overlap in so far as, in the context of the second part, the applicant directs his complaints alleging a lack of corroborating evidence and a ‘manifest error of assessment’ of the evidence against, in particular, the Council’s assessment of his responsibility for the CNE’s decisions which undermined democracy in Venezuela. It is therefore appropriate to examine them together.

41      The applicant claims that his inclusion on the lists at issue is based on his role as Secretary General of the CNE. He submits that, according to the case-law, the listing of a natural person on account of his or her links with a body suspected of having undermined democracy or of having violated human rights cannot be based on presumptions that are not substantiated by the conduct of the person concerned. In the applicant’s view, the Council has not established his responsibility for the CNE’s decisions which allegedly undermined democracy in Venezuela. The applicant’s role within the CNE is limited to organisational and administrative duties, in particular those related to the provision of the institution’s secretariat.

42      In that regard, the applicant states that, in accordance with Article 295 of the Venezuelan Constitution, the CNE, which is the head of the electoral power, is composed of five members. Its decisions can be adopted only by a majority, in principle, of three votes.

43      The applicant submits that he is not one of the members of the CNE and that he does not participate in that institution’s decision-making process. The applicant explains that he attends the CNE’s meetings but he is unable to take part in the discussions or cast votes, including dissenting votes. Accordingly, his physical presence in those meetings cannot be interpreted as a sign of approval of or support for the CNE’s actions. The applicant adds that he drafts and signs the minutes in order to attest that the content of the CNE’s decisions matches the discussions and conclusions reached during that institution’s sessions. Therefore, the applicant submits that he is not responsible for the CNE’s decisions and that that conclusion cannot be called into question by the fact that he signs that institution’s decisions. To attribute the CNE’s decisions to him would be comparable to holding the registrar of a court responsible for the content of that court’s judgments and orders.

44      As regards the establishment of the illegitimate Constituent Assembly and the manipulation of the electoral process, the applicant denies that he is responsible in that regard.

45      The applicant therefore concludes that the body of evidence relied upon by the Council in order to include and retain his name on the lists at issue is insufficiently precise and corroborative and that the Council’s assessment is manifestly incorrect.

46      The Council replies that, by referring to the applicant’s position as Secretary General of the CNE, the contested acts sought to highlight his power of influence and his personal responsibility. The Council adds that, in accordance with Article 293 of the Venezuelan Constitution, the applicant is responsible for ensuring compliance with CNE’s rules on ‘electoral power’.

47      According to the Council, the applicant’s argument that he performs only secretarial duties is not supported by any provision of the Ley Orgánica del Poder Electoral (Venezuelan Organic Law on electoral power; ‘the LOPE’). The Council submits that the LOPE attaches great importance to the Secretary General of the CNE because his or her role is governed in the same chapter of that law as the roles of the President and Vice-President of that institution. Secretary General is the only position for which the holder has to be a lawyer with a minimum of five years’ experience, and who, together with the President, signs the CNE’s resolutions.

48      The Council submits that, as Secretary General of the CNE, the applicant is responsible for the activities of that institution which undermined democracy in Venezuela and that he facilitated the establishment of the illegitimate Constituent Assembly and manipulation of the electoral process.

49      The Council, after recalling the historical context in Venezuela, puts forward a number of pieces of evidence in order to demonstrate, first, that the Constituent Assembly is unlawful and unconstitutional and that the elections of the latter had been manipulated in favour of the government and, second, that while the applicant was Secretary General of the CNE, that institution was responsible for activities which undermined democracy in Venezuela.

50      Consequently, the Council concludes that it had corroborative, reliable evidence enabling it to draw, in respect of the applicant, the conclusions which are contained in the contested acts.

51      It should be borne in mind that the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union 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).

52      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).

53      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).

54      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).

55      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).

56      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, in view of his duties as Secretary General of the CNE, by approving the CNE’s decisions, he was responsible for its decisions which undermined democracy in Venezuela and, in particular, he facilitated the establishment of the illegitimate Constituent Assembly and the manipulation of the electoral process – are vitiated by errors of assessment.

57      It should be noted that the applicant does not dispute his status as Secretary General of the CNE, but, in essence, the nature of the duties of the holder of that post and his influence within that institution.

58      In that regard, it should be noted that, in the contested acts, the Council criticised the applicant for having, as Secretary General of the CNE, approved the CNE’s decisions which undermined democracy in Venezuela.

59      Therefore, it is necessary to ascertain, in the light of the applicant’s objections, whether the Council has proved, in accordance with the case-law cited in paragraph 53 above, that the applicant approved the CNE’s decisions in such a way that he may be regarded as one of the persons responsible for those decisions.

60      In support of that ground, in the first place, the Council submits that the applicant signs the CNE’s decisions, which the applicant does not, moreover, dispute. In its replies to the questions put by the Court in the context of measures of organisation of procedure, as amended by the corrigendum of 14 April 2020, the Council stated that, by signing, together with the President of the CNE, the latter’s decisions, the applicant authenticated the content of those decisions and conferred on them their legal effect.

61      By contrast, the applicant submits that his signature did not imply his support for the CNE’s decisions and that his signature attested only that the content of the decisions matched the conclusions reached by the five members of the institution, of which the applicant was not a member, during the discussions and votes on the adoption of the decisions. Thus, the applicant merely certified that those decisions accurately reflected the conclusions reached by the members of the CNE. The applicant adds, first, that none of the evidence in the Council’s file shows that he approved the CNE’s decisions and, second, that the Council did not even examine the CNE’s rules of procedure governing the duties of the Secretary General.

62      In that regard, it must be noted that, in accordance with Article 38(6) of the LOPE, the President of the CNE signs, together with the Secretary General, the CNE’s decisions, in accordance with the CNE’s rules of procedure. Furthermore, Article 13(1) of those rules of procedure, which the applicant annexed to his application, provides that the Secretary General implements the CNE’s decisions.

63      However, neither those provisions nor the evidence in the Council’s file make it possible to define the effect of the Secretary General’s signature on the CNE’s decisions.

64      When questioned in that regard at the hearing, the applicant stated that the Secretary General of the CNE was required to sign that institution’s decisions provided that the formal legal requirements for their adoption were complied with. Moreover, once a decision has been adopted, the Secretary General of the CNE is responsible for implementing that decision by ensuring that certain formalities are carried out, in particular the publication of the decision in the national official journal. Lastly, the applicant added that those responsibilities of the Secretary General of the CNE excluded any discretion with regard to that institution’s decisions.

65      In response to those arguments, the Council did not provide any specific evidence on the powers of the Secretary General of the CNE, but merely stated that he had a very important role which was not limited to purely secretarial duties, and stated that the Secretary General did not have any discretion in carrying out his obligations.

66      It must therefore be held that those arguments of the Council cannot demonstrate that, by signing the CNE’s decisions, the applicant, who, as the Council stated, has no discretion, may be regarded as approving those decisions.

67      In the second place, the Council submits that, by referring to the role of Secretary General of the CNE, the Council sought to highlight the Secretary General’s power of influence and his personal responsibility.

68      It is not apparent from the file or, in particular, from the relevant provisions of Venezuelan law, that the position of Secretary General of the CNE has such a power of influence.

69      Furthermore, the Council does not explain why, in its view, the Secretary General of the CNE has any power to influence the members of the CNE which would be capable of demonstrating that he approves of the CNE’s decisions.

70      In the third place, the Council submits that the LOPE attaches great importance to the position of Secretary General, given that that latter’s role is governed in the LOPE, together with those of the President and Vice-President of the CNE, in Chapter V of that law. Therefore, according to the Council, the Secretary General is responsible for the CNE’s activities.

71      In that regard, it is sufficient to note that the Council does not explain why the position of the provisions relating to the Secretary General of the CNE within the LOPE would lead to the conclusion, drawn in the grounds for the contested acts, that the applicant approved the CNE’s decisions which undermined democracy in Venezuela.

72      In the fourth place, according to the Council, as Secretary General of the CNE, the applicant was responsible, in accordance with Article 293 of the Venezuelan Constitution, for ensuring compliance with the CNE’s rules on ‘electoral power’, including by signing, together with the President of that institution, the CNE’s decisions.

73      In that regard, it should be noted that Article 293 of the Venezuelan Constitution concerns electoral power in general and not the duties of the Secretary General of the CNE. Accordingly, the Council cannot rely on that provision in order to define the applicant’s role.

74      In the light of all the foregoing, it must be held that, in response to the applicant’s objections, the Council has not established that the ground relied on against the applicant is well founded, since it has not been able to show that the applicant approved the CNE’s decisions. The Council has not been in a position to convincingly dispute the applicant’s arguments, first, that the signature of the Secretary General affixed, without any discretion, to the CNE’s decisions, seeks only to check that they accurately reflect the conclusions reached by the members of that institution and to ensure compliance with the formal legal requirements for the adoption of those decisions and, second, that the Secretary General does not play a part in drawing up the CNE’s positions and has no influence over the content of the CNE’s decisions.

75      Accordingly, the Council made an error of assessment in concluding in the contested acts that the applicant, as Secretary General of the CNE, approved the decisions of that institution.

76      It follows that the applicant cannot be held responsible for the CNE’s decisions which, according to the Council, undermined democracy in Venezuela.

77      Accordingly, the first plea in law must be upheld, without there being any need to rule on the request for the withdrawal of the corrigendum of 14 April 2020.

78      In the light of the foregoing, the contested acts must be annulled, in so far as they concern the applicant, without it being necessary to examine the second plea in law raised by the applicant.

79      With regard to the Council’s alternative claim in its observations on the statement of modification (see the second indent of paragraph 31 above), seeking, in essence, that the effects of Decision 2018/1656 be maintained in relation to the applicant until the partial annulment of Implementing Regulation 2018/899 takes effect, it is sufficient to note that, as indicated in paragraph 16 above, Decision 2018/1656 was effective only until 14 November 2019. Consequently, the annulment of that decision by the present judgment has no effect on the period after that date, so that it is not necessary to rule on the question of maintaining the effects of that decision (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 105 and the case-law cited).

 Costs

80      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 Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

1.      Annuls Council Decision (CFSP) 2018/901 of 25 June 2018 amending Decision (CFSP) 2017/2074 concerning restrictive measures in view of the situation in Venezuela, Council Decision (CFSP) 2018/1656 of 6 November 2018 amending Decision (CFSP) 2017/2074 concerning restrictive measures in view of the situation in Venezuela, Council Implementing Regulation (EU) 2018/899 of 25 June 2018 implementing Regulation (EU) 2017/2063 concerning restrictive measures in view of the situation in Venezuela and 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, in so far as those acts concern Mr Xavier Antonio Moreno Reyes;

2.      Orders the Council of the European Union to pay the costs.

Delivered in open court in Luxembourg on 14 July 2021.

*      Language of the case: English.

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