JUDGMENT OF THE COURT (Second Chamber)
29 January 2026 (*)
( Appeal – Commercial policy – Commercial policy measures concerning certain products originating in the United States of America – Implementing Regulation (EU) 2020/502 – Measures adopted by the United States of America on imports of certain derivative aluminium and steel products – European Union decision to suspend equivalent trade concessions and other obligations – Additional customs duties on imports of products originating in the United States – Article 41(2)(a) of the Charter of Fundamental Rights of the European Union – Principle of good administration – Right to be heard – Principle of ne ultra petita )
In Case C‑811/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 26 December 2023,
European Commission, represented by G.-D. Balan and M. Mataija, acting as Agents,
appellant,
the other parties to the proceedings being:
Zippo Manufacturing Co., established in Bradford (United States),
Zippo GmbH, established in Emmerich am Rhein (Germany),
represented by R. MacLean, avocat, and D. Sevilla Pascual, abogado,
applicants at first instance,
THE COURT (Second Chamber),
composed of K. Jürimäe (Rapporteur), President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, F. Schalin, M. Gavalec and N. Fenger, Judges,
Advocate General: T. Ćapeta,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after hearing the Opinion of the Advocate General at the sitting on 5 June 2025,
gives the following
Judgment
1        By its appeal, the European Commission asks the Court of Justice to set aside the judgment of the General Court of the European Union of 18 October 2023, Zippo Manufacturing and Others v Commission
(T‑402/20, EU:T:2023:640; ‘the judgment under appeal’), by which the General Court annulled Commission Implementing Regulation (EU) 2020/502 of 6 April 2020 on certain commercial policy measures concerning certain products originating in the United States of America (OJ 2020 L 109, p. 10; ‘the regulation at issue’), in so far as it covers products falling within subheading 9613 80 00 of the Combined Nomenclature established by Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1; ‘CN code 9613 80 00’).
Legal context
International law
2        The Agreement on Safeguards is set out in Annex 1A to the Agreement Establishing the World Trade Organization (WTO), signed at Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1; ‘the WTO Agreement on Safeguards’).
3        Article 8, entitled ‘Level of Concessions and Other Obligations’, of the WTO Agreement on Safeguards, provides, in paragraph 2:
‘If no agreement is reached within 30 days in the consultations under paragraph 3 of Article 12, then the affected exporting Members shall be free, not later than 90 days after the measure is applied, to suspend, upon the expiration of 30 days from the day on which written notice of such suspension is received by the Council for Trade in Goods, the application of substantially equivalent concessions or other obligations under [the General Agreement on Tariffs and Trade (GATT) 1994], to the trade of the Member applying the safeguard measure, the suspension of which the Council for Trade in Goods does not disapprove.’
4        Article 12, entitled ‘Notification and Consultation’, of the WTO Agreement on Safeguards, provides, in paragraph 3:
‘A Member proposing to apply or extend a safeguard measure shall provide adequate opportunity for prior consultations with those Members having a substantial interest as exporters of the product concerned, with a view to, inter alia, reviewing the information provided under paragraph 2, exchanging views on the measure and reaching an understanding on ways to achieve the objective set out in paragraph 1 of Article 8.’
European Union law
5        According to Article 1, entitled ‘Subject matter’, of Regulation (EU) No 654/2014 of the European Parliament and of the Council of 15 May 2014 concerning the exercise of the Union’s rights for the application and enforcement of international trade rules and amending Council Regulation (EC) No 3286/94 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community’s rights under international trade rules, in particular those established under the auspices of the World Trade Organization (OJ 2014 L 189 p. 50):
‘This Regulation lays down rules and procedures to ensure an effective and timely exercise of the [European] Union’s rights to suspend or withdraw concessions or other obligations under international trade agreements, with the intention of:
(a)      responding to breaches by third countries of international trade rules which affect the Union’s interests, with a view to seeking a satisfactory solution that restores benefits for the Union’s economic operators;
(b)      rebalancing concessions or other obligations in the trade relations with third countries, when the treatment accorded to goods or services from the Union is altered in a way that affects the Union’s interests.’
6        Article 3, entitled ‘Scope’, of Regulation No 654/2014, states, in paragraph (c):
‘This Regulation applies:
…
(c)      for the rebalancing of concessions or other obligations, to which the application of a safeguard measure by a third country may give right pursuant to Article 8 of the WTO Agreement on Safeguards, or to the provisions on safeguards included in other international trade agreements, including regional or bilateral agreements’.
7        Article 4, entitled ‘Exercise of the Union’s rights’, of that regulation, provides, in paragraph 1:
‘Where action is necessary to safeguard the Union’s interests in the cases referred to in Article 3, the Commission shall adopt implementing acts determining the appropriate commercial policy measures. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 8(2).’
8        Article 9, entitled ‘Information gathering’, of that regulation, provides, in paragraph 1:
‘The Commission shall seek information and views regarding the Union’s economic interests in specific goods or services sectors, or regarding specific trade-related aspects of intellectual property rights, in the application of this Regulation, through a notice in the Official Journal of the European Union or through other suitable public communication means, indicating the period within which input is to be submitted. The Commission shall take the input received into account.’
Background to the dispute and the regulation at issue
9        The background to the dispute is set out in paragraphs 2 to 13 of the judgment under appeal and, to the extent relevant to this appeal, may be summarised as follows.
10      Zippo Manufacturing Co. (‘ZMC’), Zippo GmbH and Zippo SAS, the last of which has ceased to exist as a legal person under French law (together, ‘the applicants at first instance’), belong to the same group of companies. They are engaged in the manufacture, distribution and sale of metal mechanical windproof lighters under the Zippo brand, and in after-sales service in relation to those products. Those products are manufactured by ZMC, which claims to be the only known manufacturer of that type of product in the United States.
11      ZMC exports some of those products to the European Union. It sells them to its subsidiaries, Zippo GmbH and Zippo SAS, and to approved independent distributors, in order to be placed on the market in the European Union. The products fall within CN code 9613 80 00, which covers ‘other lighters’, within ‘cigarette lighters and other lighters, whether or not mechanical or electrical, and parts thereof other than flints and wicks’. They are subject, under that code, to customs duties upon entry into the customs territory of the European Union.
12      On 24 January 2020, the United States of America adopted measures in the form of an increase in customs duties on imports of certain derivative aluminium products and certain derivative steel products, effective from 8 February 2020, with an unlimited duration.
13      Although they were described as security measures by the United States of America, those measures were, according to the European Commission, safeguard measures taken in order to restrict imports for the purpose of protecting domestic industry against foreign competition, for the sake of that industry’s commercial prosperity. The Commission therefore considered that it was necessary to adopt measures to implement Regulation No 654/2014.
14      On 6 March 2020, pursuant to Article 9(1) of that regulation, the Commission sought the views of the relevant stakeholders, by means of a form available on the website of its Directorate-General (DG) for Trade. The information gathering was completed on 13 March 2020. Among the measures considered at the end of that information gathering, the Commission indicated the possibility of applying additional customs duties to certain products originating in the United States and in particular, during a first phase, to products under CN code 9613 80 00. The applicants at first instance did not participate in that information gathering.
15      On 6 April 2020, the Commission adopted the regulation at issue.
16      Article 1 of that regulation provided:
‘1.      The Commission shall immediately, and in any event no later than 7 April 2020, give written notice to the WTO Council for Trade in Goods that, absent disapproval by the Council for Trade in Goods, the Union suspends, from 8 May 2020, the application to the trade of the United States of import duty concessions under the GATT 1994 in respect of the products listed in paragraph 2.
2.      As a consequence, the Union shall apply additional customs duties on imports into the Union of the products listed below and originating in the United States, as follows:
(a)      At the first stage, additional ad valorem duties of 20% and 7% shall be applied from 8 May 2020 on imports of the products specified as follows:
CN code …
Additional ad valorem duty
9613 80 00
20%
3926 30 00
7%
…’
17      Article 2 of that regulation provided:
‘The Union shall apply the additional customs duties provided for in Article 1 as long as, and to the extent that, the United States applies or re-applies its safeguard measures in a manner that would affect products from the Union. The Commission shall publish in the Official Journal of the European Union a notice indicating the date on which the United States has ceased to apply its safeguard measures.’
The procedure before the General Court and the judgment under appeal
18      By application lodged at the Registry of the General Court on 30 June 2020, the applicants at first instance brought an action for annulment of the regulation at issue, in so far as it concerns them.
19      In support of that action, those applicants at first instance raised five pleas in law. The fifth plea, which was the only plea examined by the General Court, alleged breach of the principle of good administration.
20      By separate document lodged at the Registry of the General Court on 18 September 2020, the Commission submitted a plea that the action was inadmissible. By order of 6 May 2021, the decision on that plea was reserved until the General Court ruled on the substance of the case.
21      By the judgment under appeal, the General Court first rejected the Commission’s plea of inadmissibility, finding that ZMC had standing to bring proceedings on the ground that it was individually and directly concerned by the regulation at issue, and finding that the applicants at first instance had an interest in bringing proceedings. Consequently, the General Court declared that action admissible.
22      Subsequently, ruling on the merits of the action at first instance, the General Court, at the outset, examined the fifth plea. Finding that the Commission had infringed the right of the applicants at first instance to be heard, it upheld that plea. Accordingly, it annulled the regulation at issue in so far as it covers products falling within CN code 9613 80 00, without examining the other pleas raised by the applicants at first instance.
The procedure before the Court of Justice and the forms of order sought by the parties to the appeal
23      By its appeal, the Commission claims that the Court should:
–        set aside the judgment under appeal;
–        reject the fifth plea raised in Case T‑402/20; and
–        order the applicants at first instance to pay the costs incurred in the appeal and in the proceedings at first instance.
24      ZMC and Zippo GmbH contend that the Court should:
–        dismiss the appeal;
–        in the alternative, refer the case back to the General Court for it to rule at first instance on the ‘remaining unresolved’ pleas; and
–        order the Commission to pay the costs relating to both the appeal and the proceedings at first instance.
The appeal
25      The Commission raises two grounds in support of its appeal.
The first ground of appeal
26      By the first ground of appeal, the Commission submits that the General Court erred in law in finding that the right of the applicants at first instance to be heard under Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’) had been infringed. That ground of appeal is divided into three parts.
27      The Court of Justice considers it appropriate to examine the first and second parts of that ground of appeal together.
The first and second parts
–       Arguments of the parties
28      By the first part of the first ground of appeal, which seeks to challenge paragraphs 63, 65, 69, 71 to 73, 91 and 92 of the judgment under appeal, the Commission claims that the General Court erred in law by failing to take into account the requirement under Article 41(2)(a) of the Charter, according to which the right to be heard applies only to ‘individual measures’, by applying that right to the regulation at issue. According to the Commission, that regulation is an act of general application, as, in its view, is apparent both from the General Court’s findings relating to the individual concern of the applicants at first instance and from paragraphs 69 and 72 of that judgment.
29      In the first place, the Commission submits that it follows from Article 41(2)(a) of the Charter that the right to be heard applies only to individual measures, namely those taken against the person concerned and which adversely affect that person. The individual nature of the relevant measure and its adverse effect on the interests of the person concerned are, it argues, two cumulative conditions.
30      According to the Commission, those conditions also follow from the case-law of the EU Courts. According to that case-law, the right to be heard is linked to the exercise of discretion by the EU institutions in individual cases. That right applies to any proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, and applies to any measure taken against a person. It applies, in particular, to the addressees of decisions which significantly affect their interests, such as decisions imposing penalties. Although, in some cases, the EU Courts have not carried out a detailed separate examination of the requirement of an ‘individual measure’ in addition to the existence of an adverse effect on the interests of the person concerned, that, the Commission argues, is explained by the fact that those cases concerned explicitly individual measures taken against specific persons and those measures were addressed to those persons.
31      In the second place, the Commission emphasises that that case-law excludes the existence of a right to be heard, both under Article 41(2)(a) of the Charter and under a general principle of law, prior to the adoption of acts of general application. According to that case-law, neither the process of drafting those acts nor those acts themselves require, under the right to be heard, the participation of the persons affected. The position would be different only if an express provision of the legal context governing the adoption of an act of general application conferred such a procedural right.
32      In the third place, the Commission complains that, in the present case, the General Court disregarded the requirement of an ‘individual measure’ laid down in Article 41(2)(a) of the Charter and in the case-law of the EU Courts. With varying wording in paragraphs 63, 65 and 71 to 73 of the judgment under appeal, the General Court adopted, as the sole criterion of the scope of the right to be heard, the adverse effect caused by the measure concerned. In the Commission’s view, the error of law is all the more flagrant since it is apparent from paragraphs 69 and 72 of that judgment that the regulation at issue is not an ‘individual measure’.
33      According to the Commission, the interpretation of the right to be heard thus adopted by General Court would have harmful consequences, given that a very large number of acts of general application are liable to adversely affect economic operators and consumers. Such an interpretation implies that all such acts trigger an individual right to be heard. That would give rise to practical difficulties, legal uncertainties and possible breaches of the principle of equal treatment. Indeed, it would be impossible to enact fairly measures of general application if the EU institutions had to take into account the personal circumstances of any person that could be adversely affected.
34      Consequently, in the Commission’s submission, acts of general application are normally subject to a different adoption procedure, such as that provided for in Article 9 of Regulation No 654/2014, by which all stakeholders are invited to make their views known, without some of them being identified and consulted individually.
35      By the second part of the first ground of appeal, which seeks to challenge paragraphs 73 to 77, 91 and 92 of the judgment under appeal, the Commission submits that, even if the General Court had examined whether, and found that, the regulation at issue constituted an ‘individual measure’, that would amount to a misinterpretation and misapplication of Article 41(2)(a) of the Charter.
36      In the first place, the findings set out in paragraphs 74 to 77, 91 and 92 of the judgment under appeal do not, in the Commission’s view, establish that the procedure for the adoption of the regulation at issue was initiated against the applicants at first instance, or that they were the addressees of that regulation. The General Court expressly acknowledged, in paragraphs 69 and 72 of that judgment, that that regulation was an act of general application.
37      Moreover, according to the Commission, it is clear from the objectives of Regulation No 654/2014 that all measures which may be taken under that regulation, such as the regulation at issue, are measures of general application governing trade in certain products. In the light of Article 1 of Regulation No 654/2014, those objectives concern the safeguarding, in general, of the European Union’s interests vis-à-vis third countries. Neither those objectives nor any other provision of that regulation require account to be taken of the personal situation or conduct of foreign economic operators.
38      Furthermore, a measure cannot be classified as ‘individual’ simply because its author is able to identify, or is aware of, a person whose interests are likely to be adversely affected by the adoption of that measure. In practice, when preparing for the adoption of a measure such as the regulation at issue, the Commission is necessarily aware of the market context, the products in question and, at the very least, some of the main exporters and producers concerned. However, there is no predictable way of distinguishing between the operators concerned who deserve an individual right to be heard and those who do not. Thus, the General Court’s approach would make it practically impossible for the Commission to comply, at the same time, with the requirements of the right to be heard and with the principle of equal treatment.
39      In the second place, the Commission submits that, if the judgment under appeal were to be interpreted as meaning that the General Court created an exception to the principle that the right to be heard does not apply to measures of general application, that judgment would also be vitiated by an error of law. The case-law of the EU Courts does not allow any exception to that principle. In that regard, the fact that, where an operator is individually and directly concerned, such an operator has standing to bring proceedings against an act of general application is not capable of conferring on that operator, in addition, a right to be heard before the adoption of that act. Those are, in fact, distinct legal issues.
40      ZMC and Zippo GmbH argue, in response, that the first and second parts of the first ground of appeal are ‘inoperative, ineffective and/or unfounded’.
41      As regards the first part of the first ground of appeal, in the first place, ZMC and Zippo GmbH submit, in essence, that the Commission cannot claim, on the one hand, that the analysis of individual concern at the admissibility stage confirms the general scope of the regulation at issue while maintaining, on the other hand, that the finding of such concern and the finding that the relevant measure is individual under Article 41(2)(a) of the Charter are two separate legal issues.
42      In the second place, ZMC and Zippo GmbH dispute the Commission’s claim that the regulation at issue constitutes a measure of general application. That claim is, they argue, based on a purely formal and incorrect criterion. The existence of an individual measure must be assessed on a case-by-case basis in the light of the factual and legal elements at issue. Whereas a measure of general application is based on objective reasons without exporters being envisaged, in the present case the Commission identified and targeted Zippo branded products.
43      In the third place, ZMC and Zippo argue that, although the General Court did not systematically use the adjective ‘individual’ or the words ‘individual measure’, it did recall, in paragraph 61 of the judgment under appeal, that Article 41(2)(a) of the Charter applied to ‘individual measures’. Similarly, for example in paragraph 74 of that judgment, it recognised and applied the two separate conditions of that provision, relating to the existence of an individual measure and its adverse effect on the interests of the person concerned. In the present case, since the regulation at issue targeted ZMC’s products, it constitutes an individual measure.
44      In the fourth place, ZMC and Zippo GmbH submit that the case-law cited by the Commission does not allow conclusions to be drawn from it in the present case. None of the case-law cited, relating to acts adopted at the end of a procedure that was not initiated against a person, or relating to legislative acts, concerns a situation in which an EU institution identified a single economic operator and its products as being the subject of a specific action and a specific individual measure.
45      Lastly, ZMC and Zippo GmbH contend that the Commission cannot rely on the practical difficulties and prejudicial consequences of the interpretation adopted by the General Court in order to deny the infringement of fundamental rights. Moreover, the Commission could easily avoid those consequences if it did not ‘deliberately target’ during the procedure for the adoption of a regulation.
46      As regards the second part of the first ground of appeal, ZMC and Zippo GmbH submit, in the first place, that the General Court found that there was an individual measure in so far as the Commission was not only aware of the applicants at first instance but, on its own initiative, chose and targeted Zippo branded products as being the subject of the rebalancing measures.
47      In the second place, the argument that the regulation at issue was not adopted following an individual procedure against the applicants at first instance is, according to ZMC and Zippo GmbH, based on a misreading of the judgment under appeal. In their view, it is apparent from the words ‘even if’, used in paragraph 72 of that judgment, that the General Court took the view that that procedural circumstance was not significant.
48      In the third place, ZMC and Zippo GmbH submit that, although the general objectives of Regulation No 654/2014 did not require individual circumstances to be taken into account, the fact remains that the General Court found that the Commission had taken account of the individual situation of the applicants at first instance.
49      In the fourth place, as regards the Commission’s line of argument based on the general nature of Regulation No 654/2014, ZMC and Zippo GmbH observe that that regulation concerns exclusively the application of compensatory measures against imported products. However, the Commission acknowledged that, unlike the initial measures adopted in 2018, the regulation at issue was adopted to mirror a relatively minor expansion of the product scope of the United States duties. That, they argue, reduces the Commission’s margin of discretion. That margin does not allow it to choose, for subjective reasons, a product unrelated to EU products adversely affected by the measures adopted by the United States of America.
50      In the fifth place, ZMC and Zippo GmbH add that the Commission’s assertion that there is no predictable way of distinguishing between affected operators deserving an individual right to be heard and those who are not thus deserving, is merely a ‘theoretical argument’ given that, in the present case, an identification did take place.
–       Findings of the Court
51      By the first and second parts of the first ground of appeal, the Commission complains, in essence, that the General Court erred in law in the interpretation and application of Article 41(2)(a) of the Charter. First, that institution claims that the General Court was wrong to hold that the right to be heard provided for in that provision applied to measures of general application, such as the regulation at issue, where they adversely affect the interests of the person concerned. Second, that institution submits that, even if the General Court had classified that regulation as an individual measure, that conclusion is incorrect.
52      In order to rule on those parts, it is necessary, in the first place, to determine the scope of the right to be heard.
53      Under Article 41(2)(a) of the Charter, the right to good administration includes, inter alia, the right of every person to be heard, before any individual measure which would affect him or her adversely is taken.
54      In the light of the wording of that provision, the right of every person to be heard, enshrined in that provision, applies in any procedure for the adoption of an individual measure against a person which adversely affects that person.
55      However, that provision does not cover the process of enacting measures of general application. It is therefore not intended to apply where a person considers himself or herself to be affected by an act of general application (see, to that effect, judgments of 17 March 2011, AJD Tuna, C‑221/09, EU:C:2011:153, paragraph 49, and of 22 June 2023, Arysta LifeScience Great Britain v Commission, C‑259/22 P, EU:C:2023:513, paragraph 50), bearing in mind that a measure is of general application if it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in general and in the abstract (judgments of 6 October 1982, Alusuisse Italia v Council and Commission, 307/81, EU:C:1982:337, paragraph 9, and of 17 March 2011, AJD Tuna, C‑221/09, EU:C:2011:153, paragraph 51).
56      That reading of Article 41(2)(a) of the Charter is borne out by the explanations relating to Article 41 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purpose of interpreting it (see, to that effect, judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 20 and the case-law cited). As regards the right to be heard, those explanations clarify that the wording of that right follows from the case-law of the EU Courts.
57      According to settled case-law, the principle of respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a general principle of EU law which is applicable even in the absence of any specific rules in that regard. That principle requires that the addressees of decisions which significantly affect the interests of those addressees should be placed in a position in which they may effectively make known their views with regard to the evidence on which those decisions are based (see, to that effect, judgments of 12 February 1992, Netherlands and Others v Commission, C‑48/90 and C‑66/90, EU:C:1992:63, paragraph 44; of 24 October 1996, Commission v Lisrestal and Others, C‑32/95 P, EU:C:1996:402, paragraph 21; of 14 June 2016, Marchiani v Parliament, C‑566/14 P, EU:C:2016:437, paragraph 51; and of 22 June 2023, Arysta LifeScience Great Britain v Commission, C‑259/22 P, EU:C:2023:513, paragraph 47).
58      Furthermore, the right to be heard pursues a dual objective. First, to enable the case to be examined and the facts to be established in as precise and correct a manner as possible, and, second, to ensure that the person concerned is in fact protected. The right to be heard is intended, inter alia, to guarantee that any decision adversely affecting a person is adopted in full knowledge of the facts, and its purpose is to enable the competent authority to correct an error or to enable the person concerned to submit such information relating to his or her personal circumstances as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content (judgment of 4 June 2020, EEAS v De Loecker, C‑187/19 P, EU:C:2020:444, paragraph 69 and the case-law cited).
59      Thus, the general principle of the right to be heard does not apply to acts of general application (see, to that effect, judgment of 14 October 1999, Atlanta v European Community, C‑104/97 P, EU:C:1999:498, paragraphs 35 to 37).
60      It should, however, be added that the position would be different if an express provision of the legal framework governing the adoption of the act in question confers such a procedural right on an affected person. Even though neither Article 41(2)(a) of the Charter nor the general principle of respect for the right to be heard require it to do so, it remains open to the EU legislature to provide for a right, for persons deemed to be affected by an act of general application, to be heard, consulted or informed and to regulate the exercise of that right (see, to that effect, judgment of 22 June 2023, Arysta LifeScience Great Britain v Commission, C‑259/22 P, EU:C:2023:513, paragraph 51).
61      It follows from those reminders that, as the Commission rightly submits, the right to be heard, within the meaning of Article 41(2)(a) of the Charter, is not, in principle, intended to apply where a person claims to be adversely affected by an act of general application.
62      It is in the light of the foregoing considerations that it is necessary, in the second place, to examine the merits of the assessments made by the General Court in paragraphs 63, 65, 69, 71 to 77, 91 and 92 of the judgment under appeal.
63      In that judgment, the General Court, first, found, in essence, in paragraphs 66 and 67 of that judgment, which are not disputed at the appeal stage, that Regulation No 654/2014, pursuant to which the regulation at issue was adopted, does not confer a right to be heard on undertakings whose products are subject to rebalancing measures.
64      Second, in paragraphs 68 and 69 of the judgment under appeal, the General Court noted that the undertakings exporting the products concerned by the rebalancing measures laid down in a regulation adopted on the basis of Article 4(1) of Regulation No 654/2014 are not the addressees of those measures, the purpose of which is to rebalance concessions in trade relations with the United States of America. However, it held, in paragraphs 70 and 71 of that judgment, that, in the present case, the rebalancing measures established by the regulation at issue were intended to produce a negative economic impact on the activities of those undertakings.
65      The General Court inferred from this, in paragraphs 72 and 73 of the judgment under appeal, that, even if a rebalancing measure laid down in an implementing act adopted on the basis of Article 4(1) of Regulation No 654/2014 is not taken following an individual procedure against those undertakings, it may constitute a measure likely to adversely affect their interests, with the result that it cannot be ruled out that those undertakings may rely on the right to be heard under Article 41(2)(a) of the Charter.
66      In that context, the General Court held, in paragraph 74 of the judgment under appeal, that, where the conduct of the procedure for the adoption of an implementing act on the basis of Article 4(1) of Regulation No 654/2014 leads the Commission to identify a natural or legal person whose interests are likely to be adversely affected by the measures provided for by that act, that person must be able to submit information relating to his or her personal circumstances as will argue in favour of the adoption or non-adoption of that act, or in favour of its having a specific content.
67      Third, in the present case, the General Court found, in paragraphs 75 and 76 of the judgment under appeal, that the Commission had identified the products of the applicants at first instance as being the subject of the measures envisaged via the contested regulation and knew that those measures were going to concern them to a large extent. It concluded, in paragraph 77 of that judgment, that, in those circumstances, those applicants at first instance had the right to be heard during the procedure for the adoption of that regulation.
68      That reasoning of the General Court is vitiated by two errors of law.
69      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.
70      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.
71      That conclusion is not called into question by the arguments put forward by ZMC and Zippo GmbH.
72      First, ZMC and Zippo GmbH submit that the regulation at issue cannot be classified as an act of general application since the Commission had identified and targeted their products during the process leading to the adoption of that regulation and such a classification would contradict the General Court’s assessments as to whether they are individually and directly concerned.
73      In that regard, first, it must be noted that Article 1(2) of the regulation at issue defines, in a general and abstract manner, within the meaning of the case-law cited in paragraph 55 of the present judgment, the products to which the additional ad valorem duty of 20% established by that regulation applies, namely products falling within CN code 9613 80 00. In addition, it must be noted that the regulation at issue seeks, in accordance with Article 3(c) and Article 4(1) of Regulation No 654/2014, pursuant to which the regulation at issue was adopted, to rebalance concessions in trade relations with the United States of America, and that the regulation at issue was not adopted following a procedure initiated against the applicants at first instance, who are not the addresses of that regulation. In those circumstances, it must be held, as the Advocate General stated in points 71 and 72 of her Opinion, that the mere fact that the Commission had identified certain legal persons to which that ad valorem duty would apply to a large extent is not such as to render the regulation at issue an individual measure within the meaning of Article 41(2)(a) of the Charter.
74      Second, as regards the line of argument that the applicants at first instance are individually and directly concerned by the regulation at issue, it must be borne in mind that the fact that a person is individually and directly concerned by an act of general application cannot confer on that person a right to be heard prior to the adoption of such an act (see, to that effect, judgment of 14 October 1999, Atlanta v European Community, C‑104/97 P, EU:C:1999:498, paragraphs 34 and 35). Standing to bring proceedings under the fourth paragraph of Article 263 TFEU and the right to be heard under Article 41(2)(a) of the Charter are two separate legal issues which pursue, as follows from point 78 of the Advocate General’s Opinion, different objectives.
75      Second, the argument of ZMC and Zippo GmbH that the General Court found that there was an individual measure adopted against them is based on a misreading of the judgment under appeal, as follows from paragraph 70 of the present judgment.
76      Third, the line of argument based on the Commission’s discretion in choosing the products subject to the measures laid down in the regulation at issue relates to the assessment of the merits of those measures. That line of argument is, however, irrelevant to the existence of a right of ZMC and Zippo GmbH to be heard.
77      In the light of all the foregoing considerations, the first and second parts of the first ground of appeal must be upheld.
The third part
–       Arguments of the parties
78      By the third part of the first ground of appeal, the Commission submits that, even if the applicants at first instance had had the right to be heard during the process for the adoption of the regulation at issue, the General Court erred in law in finding that that right was not afforded to them by way of the public consultation carried out under Article 9(1) of Regulation No 654/2014.
79      ZMC and Zippo GmbH argue in response that that part of the ground of appeal is inadmissible and, in any event, unfounded.
–       Findings of the Court
80      The third part of the first ground of appeal is put forward in the alternative, in the event that the Court of Justice finds that the General Court was fully entitled to hold that the applicants at first instance had a right to be heard during the process for the adoption of the regulation at issue. However, it follows from the analysis of the first and second parts of that ground of appeal that this is not the case.
81      Accordingly, the third part of the first ground of appeal must be rejected as irrelevant, without there being any need to assess its admissibility.
82      In the light of all the foregoing considerations, it must be concluded that the first ground of appeal must be upheld as regards the first two parts and rejected as to the remainder. In that respect, the errors of law found in the context of the examination of those parts are sufficient to set aside the judgment under appeal.
83      Nevertheless, the Court considers it appropriate to examine also the second ground of appeal, for reasons of proper administration of justice.
The second ground of appeal
Arguments of the parties
84      By the second ground of appeal, the Commission submits that the General Court infringed the principle of ne ultra petita. The Commission notes that, as follows from paragraph 92 of the judgment under appeal, the General Court annulled the regulation at issue ‘in so far as it covers products falling within CN code 9613 80 00’, whereas the action sought annulment of that regulation only to the extent that it applied to the applicants at first instance. In the Commission’s view, the General Court therefore ruled ultra petita.
85      ZMC and Zippo GmbH contend that the second ground of appeal must be rejected as ‘inoperative and/or ineffective’.
86      ZMC and Zippo GmbH submit that the annulment of the regulation at issue in so far as it concerns the products originating in the United States falling within CN code 9613 80 00 amounts to an annulment of that regulation in so far as it concerns their products, in the light of the findings made by the General Court in paragraphs 27 and 29 of the judgment under appeal. They argue, in particular, that it is apparent from paragraph 29 that ZMC is the sole exporting producer of products falling within that code from the territory of the United States to the European Union. Accordingly, they submit, it is highly unlikely, or can even be ruled out, that lighters originating in the United States manufactured by other United States undertakings were concerned by that regulation. In any event, that would have been damage that was merely incidental to the targeting of the products of the applicants in the main proceedings.
Findings of the Court
87      As the Court has held on many occasions, since the court reviewing the legality of an act cannot rule ultra petita, it cannot grant an annulment which goes beyond that sought by the applicant (judgments of 14 September 1999, Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 52, and of 14 November 2017, British Airways v Commission, C‑122/16 P, EU:C:2017:861, paragraph 81).
88      In the present case, it is clear from the application at first instance that, as the General Court itself found in paragraph 14 of the judgment under appeal, the applicants at first instance sought the annulment of the regulation at issue and, in particular, of Article 1(2)(a) and Article 2 thereof, in so far as those provisions apply to them.
89      By the judgment under appeal, the General Court annulled the regulation at issue ‘in so far as it covers products falling within CN code 9613 80 00’.
90      In so far as that regulation identifies the products falling within that code, it defines, in abstract and objective terms, a category of products subject to the additional ad valorem duty which it imposes, as noted in paragraph 73 of the present judgment. In that regard, that regulation can apply to those products, irrespective of the identity of the producers, exporters and importers concerned.
91      It follows that, by annulling the regulation at issue in so far as it covers the products falling within that code, the General Court went beyond the scope of the form of order sought by the applicants at first instance. In that regard, even if it were established that ZMC is the sole exporting producer of products falling within that code, that would, in any event, be irrelevant.
92      In those circumstances, the second ground of appeal must be upheld.
93      In view of the conclusions reached in paragraphs 82 and 92 of the present judgment, the appeal must be upheld and, accordingly, the judgment under appeal must be set aside, to the extent that it annuls the regulation at issue in so far as the latter covers products falling within CN code 9613 80 00, and to the extent that the judgment under appeal rules on costs.
The action before the General Court
94      In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits.
95      In the present case, it should be noted at the outset that, as follows from paragraph 93 of the present judgment, the judgment under appeal is set aside, in essence, only in so far as it upheld the action at first instance. However, the decision by which the General Court disposed of a procedural issue by rejecting the plea of inadmissibility raised by the Commission in a separate document has not been the subject of an appeal. That decision, which is contained in that judgment (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 50 and the case-law cited), therefore has the status of res judicata, despite the fact that that judgment has been set aside in part (see, by analogy, judgments of 4 March 2021, Commission v Fútbol Club Barcelona, C‑362/19 P, EU:C:2021:169, paragraphs 109 and 110, and of 5 September 2024, Commission v Czech Republic (Pocket lighters), C‑494/22 P, EU:C:2024:684, paragraphs 155 and 156).
96      As to the substance, it should be noted that, in support of their action for annulment, ZMC and Zippo GmbH raise five pleas in law. Those pleas allege (i) breach of the principle of proportionality; (ii) breach of the principles of non-discrimination and equal treatment; (iii) infringement of the obligation to state reasons; (iv) infringement of the European Union’s obligations under WTO law; and (v) breach of the principle of good administration.
97      In the light in particular of the fact that the fifth plea was the subject of an exchange of arguments before the General Court and the examination of that plea does not require any further measure of organisation of procedure or inquiry to be taken in the case, the Court of Justice considers that the state of the proceedings in Case T‑402/20 is such that it may give final judgment on that fifth plea and that it should do so (see, to that effect, judgment of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 130).
98      In the context of that fifth plea, ZMC and Zippo GmbH, first, dispute the information gathering process conducted by the Commission under Article 9 of Regulation No 654/2014 and, second, claim, in essence, that their right to be heard was infringed.
99      As regards the arguments disputing the information gathering process, the Court of Justice, in the absence of a specific challenge by the parties in that respect, intends to adopt the findings made by the General Court in that regard in paragraphs 53 to 58 of the judgment under appeal.
100    As regards the arguments alleging, in essence, infringement of the right of ZMC and Zippo GmbH to be heard, it follows from paragraphs 53 to 61, 69, 70 and 73 of the present judgment that, since the regulation at issue is an act of general application, ZMC and Zippo GmbH cannot rely on a right to be heard in the absence of an express provision in Regulation No 654/2014 conferring such a procedural right on them.
101    For those reasons, the fifth plea in the action at first instance must be rejected, in its entirety, as unfounded.
102    By contrast, the state of the proceedings does not permit final judgment to be given on the first to fourth pleas of the action at first instance.
103    As is apparent from paragraph 92 of the judgment under appeal, the General Court found that, since the fifth plea in that action was upheld, there was no need to examine the other pleas in that action or to rule on the admissibility of certain evidence produced by the applicants at first instance. Those other pleas are such that factual assessments need to be carried out, which may be complex, in respect of which the Court of Justice considers that it does not have available to it all the necessary facts.
104    Consequently, the case must be referred back to the General Court for it to rule on the first to fourth pleas raised in support of the action in Case T‑402/20.
Costs
105    Since the case is being referred back to the General Court, it is appropriate to reserve the costs.
On those grounds, the Court (Second Chamber) hereby:
1.      Sets aside the judgment of the General Court of the European Union of 18 October 2023, Zippo Manufacturing and Others v Commission
(T‑402/20, EU:T:2023:640), to the extent that it annuls Commission Implementing Regulation (EU) 2020/502 of 6 April 2020 on certain commercial policy measures concerning certain products originating in the United States of America, in so far as that implementing regulation covers products falling within subheading 9613 80 00 of the Combined Nomenclature established by Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, and to the extent that that judgment rules on costs;
2.      Refers the case back to the General Court of the European Union for it to rule on the first to fourth pleas raised in support of the action in Case T‑402/20;
3.      Reserves the costs.
Jürimäe
Lenaerts
Schalin
Gavalec
Fenger
Delivered in open court in Luxembourg on 29 January 2026.
A. Calot Escobar
K. Jürimäe
Registrar
President of the Chamber
*      Language of the case: English.