CJEU Case C‑811/23 P / Opinion

European Commission v Zippo Manufacturing Co.
Deciding body type
Court of Justice of the European Union
Type
Opinion
Decision date
05/06/2025
ECLI (European case law identifier)
ECLI:EU:C:2025:416
  • CJEU Case C‑811/23 P / Opinion

    Key facts of the case: 

    Appeal – Common commercial policy – Regulation (EU) No 654/2014 – Measures adopted by the United States on imports of certain aluminium and steel products – ‘Rebalancing’ measures in the form of additional ad valorem duties on certain product categories – Right to be heard

    Outcome of the opinion: 

    On the basis of the aforementioned, I propose that the Court of Justice:

    –        set aside the judgment of 18 October 2023, Zippo Manufacturing and Zippo v Commission (T‑402/20, EU:T:2023:640);

    –        dismiss the fifth plea in law as unfounded;

    –        refer the case back to the General Court for it to adjudicate on the remaining pleas and arguments raised before it; and

    –        reserve the costs.

  • Paragraphs referring to EU Charter

    6. The European Commission has appealed that judgment arguing, inter alia, that the right to be heard, as guaranteed by Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’), does not apply in the present case. I agree.

     33.  Second, the General Court observed that the right to good administration contains the independent right of every person to be heard before any individual measure which could affect them adversely is taken. It relied in that respect on Article 41(2)(a) of the Charter. (29) According to that court, the rebalancing measures imposed pursuant to Article 4 of the Enforcement Regulation ‘are intended … to produce a negative economic impact on the activity of US undertakings which export to the European Union the products to which those measures apply’. Accordingly, such a measure, ‘even if it is not taken following an individual procedure against undertakings exporting the products concerned …, may constitute a measure likely to affect the interests of those undertakings adversely’, such that ‘it cannot be ruled out’ that those undertakings may rely on the right to be heard. 

    41.    The Court of Justice has requested that I focus my analysis on the first ground of appeal. Therein, the Commission claims that the General Court erred in finding that it had infringed Zippo’s right to be heard, as reflected in Article 41(2)(a) of the Charter. 

    42.      The Commission’s ground of appeal is divided into three branches. The first branch alleges that the General Court disregarded the fact that Article 41(2)(a) of the Charter does not apply to measures of general application. The second branch then claims that the contested regulation did not constitute an ‘individual measure’. Finally, the third branch asserts that even if Zippo had a right to be heard as regards the adoption of the contested regulation, that right would have been satisfied by the information gathering procedure conducted pursuant to Article 9 of the Enforcement Regulation.

    1.      The first branch: Article 41(2)(a) of the Charter does not apply to measures of general application

    44.      According to the Commission, while the General Court correctly identified that the scope of application of Article 41(2)(a) of the Charter is limited to individual measures,  it failed to apply that requirement to the procedure leading to the adoption of the contested regulation, given that that act of EU law does not constitute an individual measure within the meaning of that provision. 

    45.      For its part, Zippo considers that the General Court did not disregard the requirement for an individual measure, as arising from Article 41(2)(a) of the Charter, and that the judgment under appeal does not claim otherwise.

    46.      While I agree with Zippo that the judgment under appeal does not expressly say so, the Commission is right in contending that the General Court appears to interpret and apply Article 41(2)(a) of the Charter as if the ‘individual measure’ requirement laid down therein did not exist, with the effect that that court appears to conclude that an adverse effect on a person would be sufficient to trigger the right to be heard. 

    47.      That approach is clearly wrong.

    48.      It already follows from the wording of Article 41(2)(a) of the Charter and the relevant case-law that the right to be heard under that provision applies subject to two conditions: first, that the measure is an individual measure to be adopted in an administrative procedure conducted in relation to a person and, second, that the measure to be adopted might have adverse effect on that person.

    49.      It is on the basis of that logic that the Court of Justice has held that the right to be heard as reflected in Article 41(2)(a) of the Charter applies solely in a procedure in which the administration takes an individual measure in relation to a person, and not in a procedure leading to a measure of general application. 

    50.      There are important policy reasons for why that limitation is warranted: most, if not all, measures of general application are likely to have some adverse effect on at least one natural or legal person, whether identifiable in advance or not. Even though, as also contended by the Commission, the EU institutions must take into account the impact that such measures are likely to have on natural or legal persons, they are not required to take into consideration the particular circumstances of those persons.

    51.      Accordingly, the general affectation of a person by such a measure cannot suffice to trigger the right to be heard, as reflected in Article 41(2)(a) of the Charter.

    55.      It follows that for both legal and practical reasons, the ‘individual’ right to be heard, as reflected in Article 41(2)(a) of the Charter, can arise only in relation to individual measures.

    2.      The second branch: the contested regulation does not constitute an ‘individual measure’

    57.      The Commission further contends that the General Court erred in law when it found that the contested regulation constitutes, in respect of Zippo, an individual measure within the meaning of Article 41(2)(a) of the Charter.

    58.      I agree with the Commission.

    59.      First, the contested measure is a regulation, an act which, by virtue of the second paragraph of Article 288 TFEU, is of general application to each and every subject of EU law.

    60.      Nevertheless, Zippo is right to assert, in essence, that that form alone is not dispositive of the possibility that the contested regulation may contain individual decisions vis-à-vis specific persons, such that the right to be heard, as reflected in Article 41(2)(a) of the Charter, could apply to it. 

    72.      Those facts alone do not render the contested regulation an individual measure in the sense required for the application of Article 41(2)(a) of the Charter.

    73.      Indeed, it would be worrying if the Commission were not aware of the situation and the main US market participants in the field in which that institution decided to impose rebalancing measures, for the simple reason that such measures are, as per the Enforcement Regulation, inter alia to be selected and designed to induce compliance of third countries with the applicable rules of international trade. 

    74.      It follows that the Commission is right to claim that the General Court erred when it considered that the contested regulation constitutes, for Zippo, an ‘individual measure’, within the meaning of Article 41(2)(a) of the Charter.

    77.      As the Commission rightly contended, in order to be afforded the right to be heard under Article 41(2)(a) of the Charter, it is insufficient that a person is individually concerned by a measure. The procedure at issue must also lead to an ‘individual measure’.

    78.      That may be explained by the different purposes of the conditions for standing under the fourth paragraph of Article 263 TFEU and the conditions for being granted the (individual) right to be heard under Article 41(2)(a) of the Charter. On the one hand, the recognition that a natural or legal person holds standing before the EU Courts serves the purpose of enabling the person adversely affected by a measure to challenge its legal validity. On the other hand, the right to be heard serves the purpose of enabling a person to prevent the adoption of a decision in relation to it, where that decision would have an adverse effect on that person’s personal situation.

    81.      The Commission was, therefore, right to claim that finding that a natural or legal person is individually concerned by a measure of general application does not necessarily mean that the measure at issue constitutes an ‘individual measure’ within the meaning of Article 41(2)(a) of the Charter.

    83.      By the third branch, the Commission argues, in essence, that even if the right to be heard under Article 41(2)(a) of the Charter were to apply to the present situation, that right should have been satisfied through the information gathering procedure carried out under Article 9 of the Enforcement Regulation.

    91.      In the present case, by means of the third branch of the first ground of appeal, the Commission not only explains that it takes issue, in essence, with the General Court’s conclusion that Article 9 of the Enforcement Regulation would not implement the right to be heard, as reflected in Article 41(2)(a) of the Charter, but it also highlights which precise points of the judgment under appeal it seeks to have set aside. 

    93.      In paragraph 67 of the judgment under appeal, the General Court concluded that ‘where an undertaking, whose interests might be adversely affected by the measures provided for in an implementing act adopted by the Commission under Article 4(1) of [the Enforcement Regulation], has not participated in such information gathering, it cannot be considered that its right to be heard, as guaranteed by Article 41(2)(a) of the Charter, was not violated on the sole ground that the Commission has fulfilled its obligation to organise that information gathering in accordance with Article 9(1) of that regulation’.

    95.      As I have already explained in point 49 of this Opinion, the right to be heard in a procedure leading to the adoption of measures of general application, such as in the case of the contested regulation, cannot be based on Article 41(2)(a) of the Charter.

    99.      It may thus be concluded that, in the present case, the right to be heard in procedures leading to the adoption of measures of general application, to the extent that such a right may be deemed to exist under EU law independently from Article 41(2)(a) of the Charter, was satisfied.

    102. Therefore, even if it were true that Zippo enjoyed a sort of ‘general’ right to be heard before the adoption of an act of general application by the Commission – outside the scope of Article 41(2)(a) of the Charter – that right would not have been infringed by the Commission in the circumstances of the present case.

  • Paragraphs referring to EU Charter (original language)