Case T‑248/18

Diosdado Cabello Rondón

v

Council of the European Union

Judgment of the General Court (Seventh Chamber), 14 July 2021

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

1. Acts of the institutions – Statement of reasons – Obligation – Scope – Restrictive measures taken with regard to the situation in Venezuela – Freezing of funds of persons responsible for serious violations of human rights or undermining the rule of law – Minimum requirements

   (Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); Council Decision (CFSP) 2017/2074, as amended by Decision (CFSP) 2018/90, Annex I; Council Regulations 2017/2063, Annex IV, and 2018/88)

   (see paragraphs 40-43)

2. Common foreign and security policy – Restrictive measures taken with regard to the situation in Venezuela – Freezing of funds of persons responsible for serious violations of human rights or undermining the rule of law – Obligation to identify in the statement of reasons individual and specific reasons justifying such measures – Decision adopted in a context which was known to that person and which enables him to understand the scope of the measure concerning him

   (Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); Council Decision (CFSP) 2017/2074, as amended by Decision (CFSP) 2018/90, Annex I; Council Regulations 2017/2063, Annex IV, and 2018/88)

   (see paragraphs 44, 47-53)

3. EU law – Principles – Rights of the defence – Right to effective judicial protection – Restrictive measures taken with regard to the situation in Venezuela – Freezing of funds of persons responsible for serious violations of human rights or undermining the rule of law – Duties of the Council – Communication to the person concerned of the evidence relied on as the basis of the measures and the right to be heard – Duty to act within a reasonable time

   (Charter of Fundamental Rights of the European Union, Arts 41(2)(a) and 47; Council Decision (CFSP) 2017/2074, as amended by Decision (CFSP) 2018/90, Annex I; Council Regulations 2017/2063, Annex IV, and 2018/88)

   (see paragraphs 55-58, 61)

4. European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures taken with regard to the situation in Venezuela – Scope of the review – Proof that the measure is well founded – Obligation on the competent EU authority to establish, in the event of challenge, that the grounds held against the persons or entities concerned are well founded

   (Charter of Fundamental Rights of the European Union, Art. 47; Council Decision (CFSP) 2017/2074, as amended by Decisions (CFSP) 2018/90 and (CSFP) 2018/1656, Annex I; Council Regulations 2017/2063, Annex IV, and 2018/1653)

   (see paragraphs 64-67)

5. European Union – Judicial review of the legality of the acts of the institutions – Restrictive measures taken with regard to the situation in Venezuela – Scope of the review – Inclusion of persons involved in undermining democracy and the rule of law – Inclusion of the applicant on the list annexed to the contested decision due to his involvement in undermining democracy and the rule of law – Documents available to the public – Probative value – Principle of the unfettered evaluation of evidence – Manifest error of assessment – None

   (Council Decision (CFSP) 2017/2074, as amended by Decisions (CFSP) 2018/90 and (CFSP) 2018/1656, Annex I; Council Regulations 2017/2063, Annex IV, and 2018/1653)

   (see paragraphs 69, 78, 79, 86, 91-94)

6. Fundamental rights – Freedom of expression – Enshrined in Article 11 of the Charter of Fundamental Rights of the European Union and Article 10 of the European Convention on Human Rights – Identical meaning and scope

   (Art. 6(1), third para., and (3) TEU; Charter of Fundamental Rights of the European Union, Arts 11 and 52(3) and (7))

   (see paragraphs 100, 101)

7. EU law – Principles – Fundamental rights – Compliance ensured by the EU judicature – Taking into consideration the European Convention on Human Rights – Freedom of expression – Restrictive measures taken with regard to the situation in Venezuela – Incitement to hatred, violence and intolerance via the media in a political context – Benefit of enhanced freedom of expression – None

   (Charter of Fundamental Rights of the European Union, Art. 11(1); Council Decision (CFSP) 2017/2074, as amended by Decisions (CFSP) 2018/90, and (CFSP) 2018/1656, Art. 6(1)(b), and Annex I; Council Regulations 2017/2063, Annex IV, and 2018/1653)

   (see paragraphs 102-115, 117, 118)

8. Common foreign and security policy – Restrictive measures taken with regard to the situation in Venezuela – Freezing of funds of persons responsible for serious violations of human rights or undermining the rule of law – Restriction of the right to freedom of expression – Breach of principle of proportionality – None

   (Arts 21(2)(b) and 29, TEU; Art. 215 TFEU; Charter of Fundamental Rights of the European Union, Arts 11 and 52(1); Council Decision (CFSP) 2017/2074, as amended by Decisions (CFSP) 2018/90 and (CFSP) 2018/1656, Arts 7(4) and 13 and Annex I; Council Regulations 2017/2063, Art. 9(1), and Annex IV, 2018/88 and 2018/1653)

   (see paragraphs 119-127, 130-132)

Résumé

The Council of the European Union adopted, on 13 November 2017, Decision (CFSP) 2017/2074 and Regulation (EU) 2017/2063 ( 1 ) concerning restrictive measures in view of the situation in Venezuela characterised by the continuing deterioration of democracy, the rule of law and human rights. Those acts provide, inter alia, for the freezing of funds and economic resources belonging to persons whose actions, policies or activities otherwise undermine democracy or the rule of law in Venezuela. By Decision (CFSP) 2018/90 and Implementing Regulation 2018/88 of 22 January 2018, ( 2 ) the Council included the applicant, Mr Cabello Rondòn, on the lists of persons and entities covered by those acts due to his involvement, as a member of the Constituent Assembly and as the First Vice-President of the United Socialist Party, in undermining democracy and the rule of law in Venezuela, including by using the media to publicly attack and threaten other media and civil society. The applicant lodged, on 16 April 2018, an action for the annulment of those acts and then modified his application so that it also covered Decision 2018/1656 and Implementing Regulation 2018/1653 ( 3 ) by which the Council had extended the restrictive measures adopted against him by updating, in the grounds justifying those measures, the reference to the role of the applicant, who had become the President of the Constituent Assembly.

The General Court dismisses the applicant’s action, holding, inter alia, that the restrictive measures to which he was subject do not infringe his freedom of expression.

Findings of the Court

At the outset, the Court recalls that, in accordance with Articles 21 and 23 TEU, respect for fundamental rights, including the freedom of expression and to information guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and, by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), is required of all actions of the European Union. In that regard, the Court states that, while the ECHR is not a legal instrument which has been formally incorporated into the EU legal order, the fundamental rights that it recognises form part of EU law, by virtue of Article 6(3) TEU, as general principles. In addition, it follows from Article 52(3) of the Charter that the rights it contains, which correspond to rights guaranteed by the ECHR, have the same meaning and scope as those laid down by the ECHR.

Against that background, the Court recalls that the European Court of Human Rights (‘the ECtHR’) has already held that the freedom of expression is one of the essential foundations of a democratic society. Attaching particular weight to the role played by journalists as ‘watchdogs’ of democracy, the ECtHR recommends ‘the greatest care’ when it is necessary to assess the validity of restrictions on their freedom of expression. It nevertheless finds, a fortiori in the case of audiovisual media, that their right to impart information on issues of general interest is protected on condition that they act in good faith and on an accurate factual basis and provide ‘reliable and precise’ information in accordance with the ethics of journalism. Furthermore, according to the ECtHR, the ECHR allows little scope for restrictions on the freedom of expression in political debate or on issues of general interest. The principles that it upholds call for strong protection, except in situations where political debate degenerates into a call for violence, hated or intolerance.

However, the Court observes that, by contrast with those cases in which the ECtHR developed its case-law, the applicant does not rely on the freedom of expression as a defence against the Venezuelan State, but in order to protect himself against the restrictive measures, which are of a precautionary, rather than penal, nature, which the Council adopted against him.

In the first place, as regards the applicant’s status as a journalist, the Court stresses that his weekly television programme, which is the sole evidence of his status as a journalist, appears to be an extension of his political activities. It observes that his media interventions, on which the Council relied in order to justify the contested acts, disclose, inter alia, his political acts. The Court recalls in that regard that it follows from the case-law of the ECtHR that the principles relating to journalists’ good faith and ethical duties apply equally to other persons who engage in public debate. However, the applicant used the media freely in order to publicly threaten and intimidate the political opposition, other media and civil society. Therefore, the Court finds that the acts of the applicant examined by the Council in its file constitute an incitement to violence, hatred and intolerance such that those acts cannot benefit from the enhanced freedom of expression which protects, in principle, statements made in a political context. Therefore, the Court rejects the applicant’s arguments based on his role as a journalist and relying on the freedom of expression that journalists enjoy.

In the second place, after recalling that ‘everyone’ enjoys freedom of expression, the Court observes that the restrictive measures at issue may lead to restrictions on the applicant’s freedom of expression. The Court notes however that the freedom of expression does not constitute an unfettered prerogative and that its exercise may, under certain conditions, be limited. A restriction on the freedom of expression is permitted only if it is provided for by law, intended to achieve an objective of general interest and is not excessive. The Court finds that those conditions are fulfilled in the present case and therefore holds that the restrictive measures at issue do not infringe the applicant’s freedom of expression.

( 1 ) Council Decision (CFSP) 2017/2074 of 13 November 2017 concerning restrictive measures in view of the situation in Venezuela (OJ 2017 L 295, p.60) and Council Regulation (EU) 2017/2063 of 13 November 2017 concerning restrictive measures in view of the situation in Venezuela (OJ 2017 L 295, p. 21).

( 2 ) 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 against 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).

( 3 ) 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 against 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).