CJEU Case C-811/23 P / Opinion

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. ( 35 )

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.

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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, ( 36 ) 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. ( 37 )

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. ( 38 )

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48. It already follows from the wording of Article 41(2)(a) of the Charter and the relevant case-law ( 39 ) 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. ( 40 )

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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.

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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. ( 41 )

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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.

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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. ( 42 )

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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.

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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.

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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. ( 55 )

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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.

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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.

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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. ( 59 )

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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’. ( 60 )

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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.

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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.

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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.