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.