In a judgment of 29 January 2026 (Case C‑811/23 P), the Court of Justice clarified the scope of the right to be heard in EU administrative law. The Court confirmed that the right to be heard does not apply to acts of general application. The fact that such an act severely affects the interests of a particular undertaking, or that it essentially affects only one undertaking, is irrelevant in this regard and does not trigger the right to be heard. The Court thus upholds the appeal brought by the Commission and sets aside the judgment of the General Court of 18 October 2023 (Case T-402/20). This blogpost analyses the implications of this ruling.
Background
Article 41(1) of the Charter of Fundamental Rights of the European Union (hereinafter: “the Charter”) states that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. This right includes the right of every person to be heard, before any individual measure which would affect him or her adversely is taken (Article 41(2)(a) of the Charter). The wording of this right results from the case law of the EU Courts with regard to the general principle of the right to be heard (see the Explanations relating to Article 41 of the Charter).
In the case discussed here, the question arose as to whether this right also applies to measures of general application that severely – and almost exclusively – affect one undertaking.
The question arose against the backdrop of trade tensions between the United States of America (USA) and the European Union (EU). After the U.S. imposed several additional tariffs on steel and aluminium products from the EU and other countries in early 2020, the EU took rebalancing measures against certain products coming from the USA in April 2020.
Article 1(2) of Implementing Regulation (EU) 2020/502 ‘on certain commercial policy measures concerning certain products originating in the United States of America’ (hereinafter “Implementing Regulation (EU) 2020/502”) thus imposed additional customs duties on imports into the Union of certain products originating in the United States. One of these products was the product known under CN code 9613 80 00 (‘Other lighters’), which was subjected to an additional ad valorem duty of 20%.
The “Zippo lighter” – a “quintessentially American product” according to Advocate General Ćapeta – fell under this code and was therefore subject to the tariff increase. On 30 June 2020, Zippo Manufacturing Co., Zippo GmbH and Zippo SAS (hereinafter “Zippo”) filed an action for annulment against Implementing Regulation (EU) 2020/502 before the General Court.
Judgment of the General Court of 18 October 2023 (T‑402/20)
In its fifth plea in law, Zippo argued that its right to be heard, as provided for in Article 41(2)(a) of the Charter, was not respected. In essence, Zippo argued that Implementing Regulation (EU) 2020/502 severely affected its interests and that, consequently, it should have been heard prior to the imposition of the additional duties.
The General Court agreed with Zippo.
According to the General Court, the right to be heard has a very broad scope in the EU legal order and applies to any procedure that is liable to culminate in a measure adversely affecting a person. The right to be heard therefore applies whenever the administration plans to adopt an act adversely affecting a person, that is, an act which may have a negative effect on the interests of the individual concerned.
The General Court observed that Implementing Regulation (EU) 2020/502 may constitute a measure likely to affect the interests of the concerned undertakings adversely, since it explicitly intends to produce a negative economic impact on the activity of American undertakings which export to the EU the products to which the regulation applies.
Therefore, and in light of the broad interpretation of the right to be heard, the General Court considered that it “cannot be ruled out” that undertakings exporting the products concerned, may rely on the right to be heard, as guaranteed by Article 41(2)(a) of the Charter.
As for Zippo, the General Court noted that the Commission confirmed that it was aware not only that Zippo’s products were among those to which the additional customs duties were to apply, but also that those duties concerned them to a large extent.
Therefore, in the circumstances of the case, the General Court concluded that Zippo had the right to be heard during the procedure for adopting Implementing Regulation (EU) 2020/502.
Consequently, the General Court annulled Implementing Regulation (EU) 2020/502 in so far as it concerned products falling within CN code 96138000.
Opinion of Advocate General Ćapeta of 5 June 2025
The Commission appealed the judgment of the General Court. The Commission asserted, in essence, that the right to be heard does not apply to measures of general application and that Implementing Regulation (EU) 2020/502 is such a measure.
The Advocate General agreed with the Commission (Opinion of 5 June 2025).
The Advocate General noted that the General Court appeared to overlook the term “individual measure” in Article 41(2)(a) of the Charter. The General Court’s reasoning would therefore mean that the right to be heard applies as soon as a measure has an adverse effect on a person.
According to Advocate General Ćapeta, that approach is “clearly wrong”.
The Advocate General pointed to the clear wording of Article 41(2)(a) of the Charter. The right to be heard applies only when two conditions are met: 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 an adverse effect on that person. Hence, the right to be heard does not apply to measures of general application.
In the Zippo case, it was clear to the Advocate General that Implementing Regulation (EU) 2020/502 is a measure of general application. It objectively determines situations and produces legal effects with respect to categories of persons envisaged in general and in the abstract. Indeed, it applies to all imports from the United States that fall within the CN code 9613 80 00. Moreover, it is not directed against the conduct of one particular undertaking, or addressed to Zippo. Instead, it seeks generally to place pressure on the USA to change its practices.
The Advocate General concluded that Zippo cannot claim that Implementing Regulation (EU) 2020/502 is an individual measure that is addressed to it and that it should therefore have been given the right to be heard.
The Advocate General thus proposed to set aside the judgment of the General Court.
Judgment of the Court of Justice of 29 January 2026
The Court of Justice sided with the Advocate General.
In a relatively brief ruling, the Court reiterated that Article 41(2)(a) of the Charter does not cover the process of enacting measures of general application. The general principle of the right to be heard does not apply to acts of general application. The right to be heard, within the meaning of Article 41(2)(a) of the Charter, is therefore not intended to apply where a person claims to be adversely affected by an act of general application.
In just two paragraphs, the Court then explained why the reasoning of the General Court was flawed (paras. 69-70):
“First, the General Court applied an incorrect legal test and misinterpreted the scope of the right to be heard provided for in Article 41(2)(a) of the Charter, by holding, in particular, in paragraphs 71 to 74 of the judgment under appeal, that, where an act of general application adversely affects the interests of the persons concerned by the measures which that act lays down, those persons may rely on a right to be heard. As follows from that provision and from the case-law recalled in paragraphs 53 to 62 of the present judgment, that right is not intended to apply to acts of general application, including where they adversely affect the interests of certain persons.
Second, the General Court also erred in law by applying that incorrect legal test to the present case. In that regard, it is true that the General Court did not expressly classify the regulation at issue as an act of general application or as an individual measure. However, the fact remains that it is sufficiently clear from the assessments made by the General Court in paragraphs 68, 69 and 72 of the judgment under appeal that it regarded that regulation as an act of general application. In those circumstances, it could not, without erring in law, hold, in paragraphs 75 to 77 of that judgment, that the applicants at first instance had the right to be heard during the procedure for the adoption of the regulation at issue on the ground, in essence, that the Commission had, during that procedure, identified their products as being the subject of the rebalancing measures envisaged via that regulation.”
The Court agreed with the Advocate General that Article 1(2) of Implementing Regulation (EU) 2020/502 defines, in a general and abstract manner, the products to which the additional ad valorem duty applies, namely products falling within CN code 9613 80 00. In addition, the regulation seeks to rebalance concessions in trade relations with the USA and was not adopted following a procedure initiated against Zippo, who is not the addressee of that regulation. The mere fact that the Commission had identified certain legal persons to which the ad valorem duty would apply to a large extent, is not such as to render Implementing Regulation (EU) 2020/502 an individual measure within the meaning of Article 41(2)(a) of the Charter.
The Court therefore concluded that the Commission’s appeal was well-founded. The judgment of the General Court was set aside and the case was referred back to the General Court for it to rule on the other pleas raised in support of the action in Case T‑402/20.
Analysis
The ruling of the Court of Justice reaffirms its settled case law.
Already in a judgment of 14 October 1999, the Court ruled that the right to be heard does not apply in the context of a legislative procedure culminating in the enactment of legislation involving a choice of economic policy and applying to the generality of the traders concerned (Case C-104/97 P, Atlanta AG v. Council and Commission). The EU Courts have since confirmed on several occasions that the right to be heard cannot be transposed to a legislative procedure leading to the adoption of a measure of general application (see e.g. Case T-13/99, Pfizer Animal Health SA v. Council, Case T‑296/12, The Health Food Manufacturers’ Association and Others v. Commission, Case T‑65/18 RENV, Venezuela v. Council, Case C‑225/17 P, Islamic Republic of Iran Shipping Lines and Others v. Council). Specifically with regard to Article 41(2)(a) of the Charter, the Court noted that this is already clear from its wording, since this provision applies only to “individual measures” (Case C‑259/22 P, AJD Tuna Ltd v. Direttur tal-Agrikoltura u s-Sajd and Others). The fact that a measure of general application has a severe impact on a person, is irrelevant in this regard. The Court has indeed ruled that the right of every person to be heard is not intended to apply where a person considers himself or herself to be affected by an act of general application (Case C‑259/22 P, Arysta LifeScience Great Britain and Others v. Commission).
The General Court was clearly influenced by the fact that Implementing Regulation (EU) 2020/502 severely affected Zippo and that essentially only Zippo was affected. However, such considerations have no bearing on the legal nature of the measure. As the Court rightly noted, Implementing Regulation (EU) 2020/502 defines, in a general and abstract manner, the products to which the additional tariff applies. This means that it applies to any undertaking, current or future, importing the affected products. The fact that, in practice, only one undertaking is currently affected, does not alter the legislative nature of the act (compare Case 307/81, 6 October 1982, Alusuisse Italia Spa v. Council and Others, Case 231/82, Spijker Kwasten BV v. Commission).
The Court therefore rightly concluded that Implementing Regulation (EU) 2020/502 is a measure of general application and that consequently, the right to be heard did not apply.
Conclusion
The judgment confirms that the general principle of the right to be heard, as enshrined in Article 41 of the Charter, does not apply to acts of general application. The fact that such an act severely affects the interests of a particular person or undertaking, or that in practice it affects only one person or undertaking, is irrelevant in this regard and does not trigger the right to be heard. The judgment thus removes any potential ambiguity regarding the scope of this right.
The ruling is of particular importance to the Commission. It confirms that the Commission is, in principle, not required to hear importers before adopting rebalancing tariffs. In times of geopolitical volatility, when swift action is often required, this is undoubtedly a welcome clarification.
Posted by Junior Geysens
Junior Geysens is a lawyer at the Brussels Bar (junior.geysens[at]portico.be).