Brussels, 25/02/2014 (Agence Europe) - The right to a hearing is an integral part of the legal order of the Union. It can be invoked directly from the national jurisdictions and is deemed to have been infringed if the person in question has not had the opportunity to put forward his or her arguments prior to any administrative decision, but only at a later date, as part of an appeals procedure, whilst the initial decision remained in force. However, this infringement does not cause a final decision taken following an appeal to be overturned, unless it can be demonstrated that had it not occurred, the appeal could have led to a different outcome.
This is the substance of the responses proposed on Tuesday 25 February, by Advocate General Melchior Wathelet to the Court of Justice of the EU, which was asked about these issues by the Supreme Court of the Netherlands, to which two cases were brought (cases C-129/13 and C-130/13) in which the Dutch customs authorities charged two companies, which had declared goods at the wrong tariff position, additional duty without first allowing them the opportunity to put forward their side of the argument. This opportunity was not granted to them until the stage of the administrative complaint they brought against the payment order. The parties, arguing that they had been deprived of their right to a hearing, brought the matter before the Dutch legal system.
The Advocate General points out that the right to a hearing is one of the rights of defence enshrined in the Charter of Fundamental Rights and is therefore part of the legal order of the Union. It is therefore directly applicable and must be guaranteed by the courts of the member states. Wathelet referred to the case-law of the Court whereby the act of not granting the recipient of a negative decision the right to defend his or her position until after the decision has been adopted does not respect the right to defence. Only an objective of general interest could justify any restriction on the ex ante exercise of these rights. Thirdly, he noted that, in this case, the Dutch legislation runs counter to the case-law of the Court, as the complaints procedure had no automatic suspensive effect on the initial decision. Lastly, the Advocate General confirms that, under the case-law of the Court, violating the right to a hearing ahead of the initial decision causes the final administrative decision to be cancelled only if the complaint could have had a different outcome without that irregularity. In this particular case, the initial administrative decision (payment order) was upheld after the appeal procedure during which the two Dutch companies were able to put across their point of view. (FG/transl.fl)