Saab Halabi v Council (Common foreign and security policy - Venezuela - Judgment) [2021] EUECJ T-249/18 (14 July 2021)

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(Common foreign and security policy – Restrictive measures taken in view of 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)

Tarek William Saab Halabi, residing in Caracas (Venezuela), represented by L. Giuliano and F. Di Gianni, lawyers,

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

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,

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

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

1 The applicant, Mr Tarek William Saab Halabi, has been the Attorney General of Venezuela since 5 August 2017. He also served as Ombudsman from 22 December 2014 to 5 August 2017 and as President of the Venezuelan Republican Moral Council from 1 January 2015 to 1 January 2016, a position which he has held again since 1 January 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.

‘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;

‘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;

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.

‘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.

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: ‘6 – Name: Tarek William Saab Halabi – Identifying information: Date of birth: 10.9.1963 – Reasons: Venezuelan Attorney General appointed by the [National] Constituent Assembly. In this role and previous roles as Ombudsman and President of the Republican Moral Council, he has undermined democracy and the rule of law in Venezuela by publicly supporting actions against opponents of the Government and the withdrawal of competences from the National Assembly. – 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 to 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 3503/2018 INIT, and extract 6 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.

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).

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

23 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 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.

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 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.

– 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;

– 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;

31 In his statement of modification, by which he seeks the annulment of Decision 2018/1656 and Implementing Regulation 2018/1653, the applicant 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.

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 him. 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.

37 In support of his action, the applicant relies on two pleas in law alleging, first, infringement of the obligation to state reasons, the principle of sound administration, his rights of defence and of his right to effective judicial protection and, second, a lack of evidence and a ‘manifest error 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, he 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 him to be able to assess fully which specific facts the Council was referring to. Second, he submits that, despite the steps he took on 20 February 2018, the Council did not grant him access to the documents justifying the initial acts until 3 April thereafter, namely at a time when he had only 13 calendar days or 9 working days remaining to lodge his action. The applicant therefore concludes that the Council did not satisfy, within a reasonable time, his request for access to its file and thus infringed the principle of sound administration, his rights of defence and his right to effective judicial protection.

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).

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. In view of his position as Attorney General of Venezuela and his former roles as Ombudsman and President of the Venezuelan Republican Moral Council, 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 his actions and his policies, as Attorney General of Venezuela, and in his former roles as Ombudsman and President of the Venezuelan Republican Moral Council, he publicly supported actions against opponents of the government and the withdrawal of competences from the National Assembly.

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 him, is confirmed by the wording of the second plea in the present action. The applicant was able to identify the specific facts alleged against him and to dispute their accuracy. The applicant was able to submit that the Council had not provided evidence that was sufficiently precise and specific in support of the initial acts. He was able, in particular, to refute the criticisms of his actions as Ombudsman and Attorney General and to adduce evidence to establish that he had performed his duties in an impartial and non-partisan manner. The applicant was also able to draw attention to the collegiate nature of the functioning of the Republican Moral Council and to refute the criticisms of his activities in that regard.

53 It follows that the statement of reasons for the initial acts enabled the applicant to understand and challenge the reasons for including his 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, his right to effective judicial protection and his 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.

60 Furthermore, if the applicant wished to raise arguments which he had not had the opportunity of relying on in his application because of the alleged late communication of the file by the Council, he could have put forward any additional arguments in his 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. He merely claimed that the second plea, as raised in the application, could simply be transposed to his 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 he could have put forward if he 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 his rights of defence, his 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 a ‘manifest error of assessment’

65 The applicant divides this plea into two parts, the first alleging that the Council failed to demonstrate the existence of the conditions for his inclusion on the lists at issue, and the second alleging a ‘manifest error of assessment’.

66 It should be noted that the two parts overlap, in that the applicant claims, in particular, in the second part of the plea, that the Council made a manifest error of assessment by providing only vague and unsubstantiated evidence to justify the inclusion of the applicant’s name on the lists at issue. They should therefore be examined together.

67 The applicant submits that the Council did not produce reliable evidence in support of its statement of reasons and did not comply with its duty to examine carefully and impartially the information available to it.

68 In that regard, the applicant disputes, first of all, the reliability of the press articles published on 17 and 23 August 2017 in the newspaper El Nacional. In his view, since that newspaper supports the opposition, those articles are not neutral. Next, the applicant claims that the Council has not demonstrated the truth of the facts alleged in the articles in question. Furthermore, contrary to the Council’s submission, it is not apparent from the article published in the newspaper Deia on 5 April 2017 that the applicant publicly supported the decisions of the Tribunal Supremo de Justicia (Supreme Court, Venezuela) which withdrew competences from the National Assembly. Finally, the applicant states that the report of the Organization of American States (OAS) of 19 July 2017, relied on by the Council, contains no evidence or factual description in support of the assertions in that report.

69 The applicant adds that the Council made a ‘manifest error of assessment’ as regards his role as Attorney General of Venezuela and his previous roles as Ombudsman and President of the Republican Moral Council. He submits that he carried out all the activities provided for in the Venezuelan Constitution with diligence, rigour and commitment. In that regard, the applicant produces several documents stating that his activities as Attorney General and in his former role as Ombudsman were characterised by the utmost commitment and impartiality.

70 In addition, the applicant submits that the OAS report, relied on by Council in support of the reasons it gives to justify the inclusion and retention of the applicant’s name on the lists at issue, does not provide any evidence that the applicant failed in his constitutional duties as Ombudsman. With regard to his position as Attorney General, the applicant claims that his appointment to that position has been regarded by international organisations as a much needed change of policy in the Office of Public Prosecutions.

71 As regards his duties as President of the Republican Moral Council, the applicant claims that that body is collegiate, with the result that its President does not decide alone, but does so together with his colleagues. It is therefore impossible to attribute all responsibility to the President. The applicant also submits that the main evidence relied on by the Council to substantiate the reasons justifying the inclusion of the applicant’s name on the lists at issue, in his capacity as President of the Republican Moral Council, is the report of the OAS, which vaguely states that the applicant played a key role in the refusal to remove judges from the Tribunal Supremo de Justicia (Supreme Court). In addition, the applicant disputes the statement made by the former Secretary of the Republican Moral Council published in an article from the newspaper Noticias al día y a la hora dated 17 June 2017, claiming that that statement is false, injurious and contradictory.

73 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).

74 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).

75 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).

76 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). An appraisal as to whether the inclusion on the lists was well founded must be carried out by examining the evidence not in isolation but in the context in which it fits (see, to that effect, judgments of 21 April 2015, Anbouba v Council, C‑630/13 P, EU:C:2015:247, paragraph 51, and of 21 April 2015, Anbouba v Council, C‑605/13 P, EU:C:2015:248, paragraph 50).

77 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).

78 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).

79 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, in his capacity as Attorney General of Venezuela, appointed by the Constituent Assembly, and in his former roles as Ombudsman and President of the Republican Moral Council, he undermined democracy and the rule of law in Venezuela by publicly supporting actions against opponents of the government and the withdrawal of competences from the National Assembly, are vitiated by errors of assessment

80 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.

81 In that regard, it should be borne in mind that, as regards the general context in Venezuela, it is clear from recitals 1 and 5 to 8 of Decision 2017/2074 and recitals 1 and 2 of Regulation 2017/2063 that the contested acts were adopted on account of the continuing deterioration of democracy, the rule of law and human rights in Venezuela, as a result of, inter alia, the use of excessive force, and the repression of civil society and democratic opposition. Recital 6 of Decision 2017/2074 states that on 2 August 2017, the European Union expressed its deep regret at the decision of the Venezuelan authorities to continue with the election of a Constituent Assembly, a decision that durably worsened the crisis in Venezuela and risked undermining other legitimate institutions foreseen by the Venezuelan Constitution, such as the National Assembly.

82 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.

83 As regards the grounds for including and retaining the applicant on the lists at issue, the Council considered that the applicant had undermined democracy and the rule of law in Venezuela because, in his capacity as Attorney General and in his former roles as Ombudsman and President of the Republican Moral Council, he had publicly supported actions against opponents of the government and the withdrawal of competences from the National Assembly.

84 It is apparent from the Council’s file that, when the contested acts were adopted, in order to justify the inclusion and retention of the applicant on the lists at issue, the Council relied on seven documents, namely six press articles published on various websites between April and August 2017, and an OAS report of 19 July 2017. It should be noted that each of those documents contains a link to the website in question, a brief summary of its content in English, drafted by the Council, and a screenshot of that website. The Council set out those documents in its file in the following order:

– an article of 17 August 2017, published on the website ‘www.el-nacional.com’ entitled ‘William Saab threatens prosecutors loyal to Ortega Díaz’;

– an article of 23 August 2017, published on the website ‘www.el-nacional.com’ entitled ‘Ortega Díaz: Six corruption cases involving Tarek William Saab’;

– an article of 16 August 2017, published on the website ‘www.puntodecorte.com’ entitled ‘Tarek William Saab requested the arrest of Deputy Germán Ferrer and the lifting of his parliamentary immunity’;

– an article of 17 June 2017, published on the website ‘www.noticiasaldiayalahora.co’ entitled ‘Tarek William Saab threatens former Secretary of the Moral Council’;

– an article of 5 April 2017, published on the website ‘www.deia.com’ entitled ‘The Ombudsman of Venezuela supports the Tribunal Supremo de Justicia (Supreme Court)’;

– an article of 5 August 2017, published on the website ‘http://telesurtv.net’ entitled ‘Tarek William Saab appointed as Attorney General of Venezuela’;

– an OAS report of 19 July 2017, presented as being the third report of that organisation on the ‘persistent crisis’ in Venezuela after the reports of June 2016 and March 2017.

85 In the first place, it must be noted that, according to the OAS report of 19 July 2017, the elections of the Constituent Assembly were not democratic, since the rules applied infringed the principle of universal suffrage enshrined in the Venezuelan Constitution. In addition, that assembly assumed the power to remove Mrs Luisa Ortega Díaz, who had criticised those elections, from her position as Attorney General, and to replace her with the applicant, even though, according to the Constitution, that power of appointment belongs to the National Assembly (see in particular pages 10 to 13 of that report).

86 It must therefore be held that, as the Council has submitted, by agreeing to be appointed as Attorney General by the Constituent Assembly following the dismissal of Mrs Ortega Díaz for political reasons, the applicant undermined democracy and the rule of law in Venezuela. That unconstitutional appointment could not have been effective if the applicant had not agreed to carry out those duties, while knowing that his appointment followed that dismissal, as is apparent from the press article of 5 August 2017 published on the website ‘http://telesurtv.net’ and included in the Council’s file.

87 In the second place, it must be held that two pieces of evidence set out by the Council in its file when the contested acts were adopted referred to the applicant’s actions against opponents of the government. First, the article of 17 August 2017, published on the website ‘www.el-nacional.com’, refers to ‘threats’ made by the applicant against any person who, within the Office of Public Prosecutions, supported the former Attorney General, Mrs Ortega Díaz. According to that article, during the applicant’s welcome speech before the Constituent Assembly, which appointed him as Attorney General, he declared that ‘anyone who supports the previous management is complicit and must be identified’.

88 The applicant disputes the reliability of El Nacional’s article on the ground that the newspaper which that article comes from is close to the opposition and uses wording which is not neutral by describing the Constituent Assembly as ‘fraudulent’ and the applicant’s appointment as Attorney General as ‘unconstitutional’. However, first, the mere fact that a newspaper is close to the opposition and denounces certain actions taken by a government cannot suffice for the view to be taken that the information which that newspaper reports is not credible. Secondly, as regards the description of the Constituent Assembly as ‘fraudulent’ and the Constituent Assembly’s appointment of the applicant as Attorney General as ‘unconstitutional’, it should be noted that, as stated in paragraph 85 above, the OAS called into question in detail whether the process seeking to establish a Constituent Assembly complied with the Venezuelan Constitution. Consequently, the wording used in the abovementioned article of the newspaper El Nacional does not, in itself, mean that the information reported in that article is unreliable.

89 Secondly, the article of 16 August 2017, published on the website ‘www.puntodecorte.com’, refers to the applicant’s press conference given a few days after he took up office, during which he announced that he had submitted a request to the Constituent Assembly for parliamentary immunity to be removed in respect of the former Attorney General’s spouse, a Deputy of the National Assembly, and for an order to be given for his immediate arrest.

90 In the light of the general context of the situation in Venezuela described in paragraph 82 above, the former Attorney General and her husband could reasonably be regarded by the Council as opponents of the government. The applicant himself admits that the former Attorney General, Mrs Ortega Díaz, publicly and on several occasions denounced the alleged breakdown of democracy in Venezuela and that she strongly criticised the government of the then President of Venezuela. That is all the more so since, first, according to the OAS report of 19 July 2017, the former Attorney General, Mrs Ortega Díaz, after denouncing the process aimed at establishing a Constituent Assembly, was prohibited from leaving the territory and her bank accounts and property were frozen pending a decision by the Tribunal Supremo de Justicia (Supreme Court) on whether she should be put before a court. Secondly, it is apparent from that report that the Tribunal Supremo de Justicia (Supreme Court) conferred on the Ombudsman, namely the applicant, powers of investigation and prosecution normally reserved exclusively for the Attorney General (see pages 9 and 12). Thirdly, that report also sets out a statement by which the United Nations High Commissioner for Human Rights had supported the former Attorney General, Mrs Ortega Díaz, on 30 June 2017.

91 The fact that, in the performance of his duties as Attorney General, the applicant supported actions against opponents of the government is further corroborated by various statements made when he was sworn in before the Constituent Assembly which appointed him. As is apparent from the article published on the website ‘telesurenglish.net’, first, the President of the Constituent Assembly stated, during that swearing-in ceremony, that the role of the Attorney General was to ‘ensure respect for the law, supervise criminal proceedings, protect the rights of victims and combat elements undermining peace and stability in the country’. Secondly, the applicant stated that he was ‘swearing on behalf of [their] comrades, for those who have remained loyal to the flag of their homeland when faced with the worst obstacles, who have not capitulated, who have not fallen, but who have kept that flag high and worthy so that it is not damaged, tarnished, humiliated, or offended’ and that he would honour ‘this historic appointment in the midst of the historic circumstances of the siege that our homeland is under, in the midst of the threats that we have faced with dignity, from the [then] Head of State to the most lowly peasant, fisher, father and mother’. In the light of the general context of the situation in Venezuela, described in paragraph 82 above, the circumstances associated with the applicant’s appointment as Attorney General, as described in paragraphs 85 and 86 above, and the threats made by the applicant against persons supporting the former Attorney General, as described in paragraph 87 above, both the statement of the President of the Constituent Assembly and that of the applicant, set out in the present paragraph, could be regarded as being directed against opponents of the government.

92 In the third place, as regards the applicant’s support for the withdrawal of competences from the National Assembly, it should be noted that the article of 5 April 2017 published on the website ‘www.deia.com’, refers to his statement, according to which the judgments of the Tribunal Supremo de Justicia (Supreme Court) by which the National Assembly and the Deputies had their powers removed could not be regarded as having caused a breakdown in the constitutional order. In the light of the general context of the situation in Venezuela, referred to in paragraph 82 above, such a statement by the applicant, who at the time held the position of Ombudsman of Venezuela, could be regarded by the Council as publicly supporting the decisions of the Tribunal Supremo de Justicia (Supreme Court) which withdrew competences from the National Assembly and opened the way for the establishment of the Constituent Assembly.

93 The applicant does not dispute either the reliability or the content of the article of 5 April 2017 published on the website ‘www.deia.com’. More specifically, the applicant does not deny that he made a statement according to which the judgments of the Tribunal Supremo de Justicia (Supreme Court) could not be regarded as having caused a breakdown in the constitutional order.

94 In that regard, the applicant’s argument that the article of 5 April 2017 referred to a meeting between the President of Venezuela and the then Attorney General, from which, in the applicant's view, it is apparent that the constitutional order was still working and that it was capable of dealing with the critical events that had occurred during the preceding weeks, is irrelevant. Even if it were true that the article in question had mentioned such a meeting and its context, the fact remains that the article also concerned the judgments of the Tribunal Supremo de Justicia (Supreme Court) withdrawing competences from the National Assembly and from which it was apparent that the applicant publicly stated that those judgments could not be regarded as having caused a breakdown in the constitutional order.

95 Furthermore, according to the OAS report of 19 July 2017, the applicant, in his capacity as President of the Venezuelan Republican Moral Council, played an essential role in the rejection of the National Assembly’s requests that members of the Tribunal Supremo de Justicia (Supreme Court) be relieved of their duties on account of their manifest infringements of the Venezuelan Constitution. That statement must be viewed in the light of the information reported in the abovementioned article of ‘deia.com’ of 5 April 2017, according to which the opposition had requested the applicant, in his capacity as President of Citizen Power, to support the removal of seven judges from the Tribunal Supremo de Justicia (Supreme Court), that article stating that ‘according to the Venezuelan Constitution, judges of the Tribunal Supremo de Justicia (Supreme Court) may be relieved of their duties by the National Assembly … in the event of serious misconduct already classified as such by Citizen Power’.

96 Thus, the applicant’s blocking of any proceedings against judges of the Tribunal Supremo de Justicia (Supreme Court) involved in decisions withdrawing competences from the National Assembly, for the benefit of the Constituent Assembly, could be regarded by the Council as being support for the decisions in question.

97 In the light of the considerations set out in the examination of the present plea in law, it must be held that it was on the basis of sufficiently reliable corroborating evidence that the Council concluded, without making an error of assessment, that the applicant had undermined democracy and the rule of law in Venezuela by publicly supporting actions against opponents of the government and the withdrawal of competences from the National Assembly, without it being necessary to examine, in accordance with the case-law cited in paragraph 78 above, the relevance and probative value of the other evidence relied on by the Council.

99 Therefore, since the first plea in law has also been rejected, the action must be dismissed in its entirety.

100 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 pay the costs in accordance with the form of order sought by the Council.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Saab Halabi v Council (Common foreign and security policy - Venezuela - Judgment) [2021] EUECJ T-249/18 (14 July 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T24918.html Cite as: [2021] EUECJ T-249/18, ECLI:EU:T:2021:451, EU:T:2021:451

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