The Member States’ Right to Be Heard by the Union Administration

The right to be heard, a general principle and fundamental right in Union law, requires the administration to hear the persons negatively affected by a decision before taking it. The right must be observed even in the absence of ordinary legislation that provides for hearings in a given administrative procedure. One hitherto unexplored aspect of the right is that its holders are not only individuals, but also Member States, when subject to Union administrative power. This article maps some of the instances where the Court of Justice of the European Union (CJEU) has recognized the right of Member States to be heard. The article further highlights that the ambiguous role of the Member States in European administrative law raises doubts as to when, and to what extent, they should be treated, not as subordinate co-enforcers of Union law under the coordination of the Union administration, but as subjects of the Union administration, with interests of their own that warrant procedural protection before an adverse decision is taken. Ultimately, CJEU case law fails to provide a clear test to establish when the right to be heard of Member States applies. This, the paper argues, risks undermining constitutional requirements of national self-determination, autonomy of Union law, and the balance of power between the Union and the Member States.