14 July 2021 (*1)

(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)

In Case T‑248/18,

Diosdado Cabello Rondón, residing in Caracas (Venezuela), represented by L. Giuliano and F. Di Gianni, lawyers,

applicant,

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

defendant,

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,

THE GENERAL COURT (Seventh Chamber),

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

Registrar: B. Lefebvre, Administrator,

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

gives the following

1This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

3Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

4Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

5Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

6Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

7Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

A description of the aspects of the environment likely to be significantly affected by the project.

A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

ECLI:EU:C:2025:140

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

9Recitals 11 and 29 of Directive 2014/52 state:

(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

10Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

11Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

For the application of those principles to this case, it is necessary to have regard to the context of the present case, which has specific characteristics distinguishing it from those that allowed the ECtHR to develop its case-law (see, to that effect, judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 93).

It must be emphasised that the principles set out in the case-law of the ECtHR were established in view of situations in which a state, which had acceded to the ECHR, imposed restrictive measures, often of a penal nature, on a person who had made statements or undertaken actions considered unacceptable to that state, and that person invoked the freedom of expression as a defence against that state (judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 94).

By contrast, in the present case, the applicant is a Venezuelan citizen, resident in Venezuela, who exercises political functions in his own country and has considerable access to the audiovisual media in that country.

That is the context in which the applicant invokes the right to freedom of expression. Thus, he does not rely on that right in order to defend himself against the Venezuelan State, but rather to protect himself against restrictive measures, of a precautionary, rather than penal, nature, which the Council adopted in reaction to the prevailing situation in Venezuela (see, to that effect and by analogy, judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 97).

It is in the light of all of those principles and all of those considerations that the present plea must be examined.

It must be emphasised that the applicant was included and retained on the lists at issue in his capacity as a leading Venezuelan political figure, for having publicly attacked and threatened the political opposition, media and civil society. That ground allowed the Council to apply the criterion laid down in Article 6(1)(b) of Decision 2017/2074, for including the names of natural persons whose actions, policies or activities otherwise undermine democracy or the rule of law in Venezuela.

It must be observed that the media interventions made by the applicant on which the Council relied in order to justify the contested acts disclose, inter alia, his political acts and statements during demonstrations, before the press and at press conferences.

It follows that the applicant was made the subject of the restrictive measures at issue in his capacity as a political figure who undermined democracy and the rule of law by making public and targeted threats against the political opposition, media and civil society.

As regards the applicant’s argument that he may rely on his status of commentator, journalist and entrepreneur in the entertainment industry, it should be observed that his weekly television programme, the sole evidence moreover of the status of journalist upon which he relies for his benefit, appears to be an extension of his political activities. In fact, as is clear from paragraphs 81 to 83 above, the applicant has used his programme to attack his political opponents and to give instructions as to actions against the opposition. Furthermore, as stated in paragraph 112 above, the applicant’s actions considered by the Council do not concern his television programme alone. In any event, it follows from the case-law of the ECtHR that the principles relating to journalists’ good faith and ethical duties that they are required to respect in order to be able to rely on greater protection from interference in their freedom of expression (see paragraph 104 above) apply equally to other persons who engage in public debate (see, to that effect, ECtHR, 15 February 2005, Steel and Morris v. United Kingdom, CE:ECHR:2005:0215JUD006841601, § 90, and 29 November 2005, Urbino Rodrigues v. Portugal, CE:ECHR:2005:1129JUD007508801, § 25). Thus, those principles are relevant as regards the applicant’s situation, who undoubtedly engaged in the public debate taking place in Venezuela.

It is clear from an examination of the case file that, without taking on the ‘duties and responsibilities’ referred to in the ECtHR case-law, the applicant freely made use of the media in order to publicly threaten and intimidate the political opposition, other media and civil society.

In particular, the applicant accused journalists of complicity in a bomb attack on the National Guard. In addition, he has not denied having engaged in intimidation on his website with regard to movements denouncing human rights violations in Venezuela, or having used, in his television programme, information derived from the unlawful recording of private conversations in order to attack political opponents. Nor did he dispute the information that he incited brutal repression through incendiary rhetoric, gave instructions to deploy combat corps against the demonstrations by the opposition, publicly threatened opposition leaders by declaring ‘we know where you live’, publicly exhibited a ‘manual for revolutionary fighters’ that contained personal information about opposition leaders, including in particular their place of residence, in order to intimidate the opposition. The applicant has furthermore not disputed information that appeared in the OAS report of 14 March 2017 according to which he was involved in acts of torture.

Therefore, it must be held that the acts of the applicant examined by the Council in its file constitute an incitement to violence, hatred and intolerance, within the meaning of the case-law referred to in paragraph 105 above, such that those acts cannot benefit from the enhanced freedom of expression which protects, in principle, statements made in the political context. Those acts are, in fact, genuine attacks that undermine democracy and the rule of law in Venezuela.

Consequently, the applicant’s arguments based on his role as journalist relating to the freedom of expression enjoyed by journalists must be rejected.

Moreover, it is true that, as noted in paragraph 102 above, ‘everyone’ enjoys freedom of expression. In addition, in the present case, the restrictive measures imposed on the applicant may lead to restrictions on the applicant’s freedom of expression since they were decided upon by the Council on account, inter alia, of some of his comments and may therefore deter him from expressing his views in similar terms. However, it must be observed that the freedom of expression does not constitute an unfettered prerogative and may be limited, under the conditions laid down in Article 52(1) of the Charter.

In order to comply with EU law, a limitation on the freedom of expression must satisfy three conditions. First, the limitation must be ‘provided for by law’. In other words, the EU institution adopting measures liable to restrict a person’s freedom of expression must have a legal basis for its actions. Secondly, the limitation in question must be intended to achieve an objective of general interest, recognised as such by the European Union. Thirdly, the limitation in question must not be excessive (see judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 69 and the case-law cited).

As regards the first condition, it should be noted that, in the present case, the limitation is ‘provided for by law’, in view of the fact that it is set out in acts which are, inter alia, of general application and have clear legal bases in EU law, namely Article 29 TEU and Article 215 TFEU (see, to that effect, judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 72).

As regards the second condition, it should be noted that, as is apparent from the examination of the second plea in law, the contested acts comply, as regards the applicant, with the objective referred to in Article 21(2)(b) TEU of consolidating and supporting democracy and the rule of law in so far as they form part of a policy designed to promote democracy in Venezuela.

As regards the third condition, it must be noted that it has two aspects: first, the limitations on freedom of expression liable to result from the restrictive measures at issue must be necessary and proportionate to the aim pursued and, second, the essence of that freedom must not be impaired (see, by analogy, judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 84). As regards the first aspect, it must be recalled that the principle of proportionality, as one of the general principles of EU law, requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives pursued by the legislation in question. Consequently, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 87).

In that respect, the case-law makes clear that, with regard to judicial review of compliance with the principle of proportionality, the EU legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in those fields can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 88).

In the present case, as regards whether the restrictive measures, such as those imposed on the applicant, are appropriate in the light of an objective of general interest as fundamental to the international community as the protection of democracy and the rule of law, it appears that the freezing of funds, financial assets and other economic resources of persons identified as being involved in the undermining of democracy in Venezuela cannot, as such, be regarded as inappropriate. (see, to that effect, judgment of 12 February 2020, Boshab v Council, T‑171/18, not published, EU:T:2020:55, paragraph 134 and the case-law cited). As has been pointed out in paragraph 117 above, by his incitements to violence, hatred and intolerance, the applicant is the cause of such harm.

As regards the necessity of the limitations at issue, it should be noted that alternative and less restrictive measures, such as a system of prior authorisation or an obligation to justify, a posteriori, how the funds transferred were used, are not as effective in achieving the objectives pursued, namely bringing pressure to bear on Venezuelan decision-makers responsible for the situation in Venezuela, particularly given the possibility of circumventing the restrictions imposed (see, to that effect, judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 85).

Furthermore, it should be recalled that Article 7(4) of Decision 2017/2074 and Article 9(1) of Regulation 2017/2063 provide for the possibility of authorising the release of certain frozen funds or economic resources in order for the persons concerned to meet basic needs or commitments.

Since the limitations on the applicant’s freedom of expression that the restrictive measures at issue are liable to entail are necessary and proportionate to the objective pursued, it is appropriate next to examine whether they impair the essence of that freedom.

It must be borne in mind that the restrictive measures at issue provide that, first, Member States are to take the necessary measures to prevent the entry into, or transit through, their territories and, second, all of his funds and economic resources in the European Union are to be frozen.

The applicant is a national of a third country to the European Union, Venezuela, and resides in that state, where he pursues his professional activity as a politician also active in the media of that country. Accordingly, the restrictive measures at issue do not undermine the essence of the applicant’s right to exercise his freedom of expression, in particular in the context of his professional activity in the media sector, in the country in which he resides and works (see, by analogy, judgment of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 123).

In addition, those measures are by nature temporary and reversible. It follows from Article 13 of Decision 2017/2074 that that decision is kept under constant review (see paragraph 7 above).

Therefore, the restrictive measures to which the applicant is subject do not infringe his freedom of expression.

Having regard to all of the foregoing, the third plea in law must be dismissed.

On those grounds,

hereby:

Dismisses the action;

Orders Mr Diosdado Cabello Rondón to pay the costs.

Delivered in open court in Luxembourg on 14 July 2021.

da Silva Passos

Reine

Truchot

[Signatures]

*1 Language of the case: English.

1 Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.