République bolivarienne du Venezuela v Council of the European Union.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2023:529
• Date: 13 September 2023
• Docket Number: T-65/18
• Celex Number: 62018TJ0065(01)
• Court: General Court (European Union)

JUDGMENT OF THE GENERAL COURT (Grand Chamber)

13 September 2023 ( *1 )

(Common foreign and security policy – Restrictive measures taken in view of the situation in Venezuela – Prohibition on the sale, supply, transfer or export of certain goods and services – Right to be heard – Obligation to state reasons – Material inaccuracy of the facts – Manifest error of assessment – Public international law)

In Case T‑65/18 RENV,

Bolivarian Republic of Venezuela, represented by F. Di Gianni, P. Palchetti, C. Favilli and A. Scalini, lawyers,

applicant,

v

Council of the European Union, represented by M. Bishop and A. Antoniadis, acting as Agents,

defendant,

THE GENERAL COURT (Grand Chamber),

composed of M. van der Woude, President, S. Papasavvas, D. Spielmann, A. Marcoulli, R. da Silva Passos, M. Jaeger, S. Frimodt Nielsen, H. Kanninen, S. Gervasoni, N. Półtorak, I. Reine (Rapporteur), T. Pynnä, E. Tichy-Fisslberger, W. Valasidis and S. Verschuur, Judges,

Registrar: I. Kurme, Administrator,

having regard to the written part of the procedure,

having regard to the judgment of 22 June 2021, Venezuela v Council (Whether a third State is affected) (C‑872/19 P, EU:C:2021:507),

further to the hearing on 3 March 2023,

gives the following

Judgment

1 By its action pursuant to Article 263 TFEU, the Bolivarian Republic of Venezuela seeks the annulment of (i) Articles 2, 3, 6 and 7 of 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) (‘the contested regulation’), (ii) Council Implementing Regulation (EU) 2018/1653 of 6 November 2018 implementing the contested regulation (OJ 2018 L 276, p. 1), in so far as that implementing regulation concerns it, and (iii) 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), in so far as that decision concerns it.

Background to the dispute

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). First, that decision contains, in essence, a prohibition on exporting to Venezuela weapons, military equipment, or any other equipment which might be used for internal repression, as well as monitoring equipment, technology or software. Secondly, it contains a prohibition on providing Venezuela with financial services, technical services, or services of another nature related to that equipment and technology. Thirdly, it provides for the possibility of putting measures in place for the freezing of the funds and economic resources of persons, entities and bodies. On the date of its adoption, Decision 2017/2074 did not yet contain the name of any person or entity.

3 According to recital 1 thereof, Decision 2017/2074 was adopted because of the Union’s deep concern regarding the continuing deterioration of democracy, the rule of law and human rights in Venezuela.

4 On 13 November 2017, the Council also adopted the contested regulation on the basis of Article 215 TFEU and Decision 2017/2074.

5 Article 2 of the contested regulation states: ‘1. It shall be prohibited: (a) to provide, directly or indirectly, technical assistance, brokering services and other services related to the goods and technology listed in the EU Common List of Military Equipment (“the Common Military List”) and to the provision, manufacture, maintenance and use of goods and technology listed in the Common Military List to any natural or legal person, entity or body in, or for use in, Venezuela; (b) to provide, directly or indirectly, financing or financial assistance related to the goods and technology listed in the Common Military List, including in particular grants, loans and export credit insurance, as well as insurance and reinsurance, for any sale, supply, transfer or export of such items, or for the provision of related technical assistance, brokering services and other services, directly or indirectly to any person, entity or body in, or for use in, Venezuela. …’

6 Article 3 of the contested regulation provides: ‘It shall be prohibited: (a) to sell, supply, transfer or export, directly or indirectly, equipment which might be used for internal repression as listed in Annex I, whether or not originating in the Union, to any natural or legal person, entity or body in, or for use in, Venezuela; (b) to provide technical assistance and brokering and other services related to the equipment referred to in point (a), directly or indirectly to any natural or legal person, entity or body in, or for use in, Venezuela; (c) to provide financing or financial assistance, including in particular grants, loans and export credit insurance, as well as insurance and reinsurance, related to the equipment referred to in point (a), directly or indirectly to any natural or legal person, entity or body in, or for use in, Venezuela.’

7 Article 4 of the contested regulation provides that, by way of derogation from Articles 2 and 3 of that regulation, the competent authorities of the Member States may authorise certain transactions under such conditions as they deem appropriate.

8 Under Article 6 of the contested regulation: ‘1. It shall be prohibited to sell, supply, transfer or export, directly or indirectly, equipment, technology or software identified in Annex II, whether or not originating in the Union, to any person, entity or body in Venezuela or for use in Venezuela, unless the competent authority of the relevant Member State, as identified on the websites listed in Annex III, has given prior authorisation. 2. The competent authorities of the Member States, as identified on the websites listed in Annex III, shall not grant any authorisation under paragraph 1 if they have reasonable grounds to determine that the equipment, technology or software in question would be used for internal repression by Venezuela’s government, public bodies, corporations or agencies, or any person or entity acting on their behalf or at their direction. 3. Annex II shall include equipment, technology or software intended primarily for use in the monitoring or interception of internet or telephone communications. …’

9 Article 7(1) of the contested regulation states: ‘Unless the competent authority of the relevant Member State, as identified on the websites listed in Annex III, has given prior authorisation in accordance with Article 6(2), it shall be prohibited: (a) to provide, directly or indirectly, technical assistance or brokering services related to the equipment, technology and software identified in Annex II, or related to the installation, provision, manufacture, maintenance and use of the equipment and technology identified in Annex II or to the provision, installation, operation or updating of any software identified in Annex II, to any person, entity or body in Venezuela or for use in Venezuela; (b) to provide, directly or indirectly, financing or financial assistance related to the equipment, technology and software identified in Annex II to any person, entity or body in Venezuela or for use in Venezuela; (c) to provide any telecommunication or internet monitoring or interception services of any kind to, or for the direct or indirect benefit of, Venezuela’s government, public bodies, corporations and agencies or any person or entity acting on their behalf or at their direction.’

10 Article 8 of the contested regulation provides, in addition, for the freezing of financial assets belonging to certain natural or legal persons, entities or bodies ‘listed in Annexes IV and V [to that regulation]’. On the date of adoption of the contested regulation, those annexes did not mention the name of any person or entity.

11 Under Article 20 of the contested regulation, the restrictive measures apply: ‘(a) within the territory of the Union, including its airspace; (b) on board any aircraft or any vessel under the jurisdiction of a Member State; (c) to any person inside or outside the territory of the Union who is a national of a Member State; (d) to any legal person, entity or body, inside or outside the territory of the Union, which is incorporated or constituted under the law of a Member State; (e) to any legal person, entity or body in respect of any business done in whole or in part within the Union.’

12 By application lodged at the Registry of the General Court on 6 February 2018, as amended by a document lodged on 17 January 2019, the Bolivarian Republic of Venezuela brought an action seeking the annulment, by the General Court, of (i) the contested regulation, (ii) Implementing Regulation 2018/1653, and (iii) Decision 2018/1656, in so far as the provisions of those acts concerned it.

13 By separate document lodged at the Court Registry on 3 May 2018, the Council raised an objection of inadmissibility pursuant to Article 130 of the Rules of Procedure of the General Court.

14 By judgment of 20 September 2019, Venezuela v Council (T‑65/18, EU:T:2019:649) (‘the initial judgment’), the General Court held, regarding the contested regulation, that, by its action, the Bolivarian Republic of Venezuela was targeting Articles 2, 3, 6 and 7 of that regulation. The General Court then dismissed the action in...