THE COURT HELD IN PARTICULAR IN ITS JUDGMENT OF 13 FEBRUARY 1979 IN CASE 85/76 HOFFMANN-LA ROCHE V COMMISSION ( 1979 ) ECR 461 , OBSERVANCE OF THE RIGHT TO BE HEARD IS , IN ALL PROCEEDINGS INITIATED AGAINST A PERSON WHICH ARE LIABLE TO CULMINATE IN A MEASURE ADVERSELY AFFECTING THAT PERSON , A FUNDAMENTAL PRINCIPLE OF COMMUNITY LAW WHICH MUST BE GUARANTEED EVEN IN THE ABSENCE OF ANY RULES GOVERNING THE PROCEDURE IN QUESTION . THE COURT HAS CONSISTENTLY HELD THAT , IN ORDER TO RESPECT THE PRINCIPLE OF THE RIGHT TO BE HEARD , THE PERSON AGAINST WHOM AN ADMINISTRATIVE PROCEDURE HAS BEEN INITIATED MUST HAVE BEEN AFFORDED THE OPPORTUNITY , DURING THAT PROCEDURE , TO MAKE KNOWN HIS VIEWS ON THE TRUTH AND RELEVANCE OF THE FACTS AND CIRCUMSTANCES ALLEGED AND ON THE DOCUMENTS USED BY THE COMMISSION TO SUPPORT ITS CLAIM THAT THERE HAS BEEN AN INFRINGEMENT OF COMMUNITY LAW .
29 BY STATING IN ITS DECISION THAT FOUR MEMBER STATES , ONE TRADE ASSOCIATION AND TWO INDIVIDUAL FIRMS IN THE SAME INDUSTRY SHARED ITS CONCERN AND THAT THREE OF THOSE MEMBER STATES , THE TRADE ASSOCIATION AND THE TWO FIRMS EMPHASIZED THE SERIOUS DISTORTIONS OF COMPETITION CAUSED BY THE REPEATED ASSISTANCE GIVEN BY THE BELGIAN GOVERNMENT , THE COMMISSION IN FACT GAVE THE IMPRESSION THAT IT HAD USED THOSE DOCUMENTS TO SUPPORT ITS FINDING THAT THE AID IN QUESTION WAS INCOMPATIBLE WITH THE COMMON MARKET AND HENCE HAD TO BE ABOLISHED .
30 IN THAT CONNECTION THE COMMISSION CANNOT RELY ON THE EXISTENCE IN THOSE DOCUMENTS OF INFORMATION COVERED BY BUSINESS CONFIDENTIALITY . IN SO FAR AS THE MEMBER STATE CONCERNED WAS NOT AFFORDED AN OPPORTUNITY TO COMMENT ON THAT INFORMATION , THE COMMISSION MAY NOT USE IT IN ITS DECISION AGAINST THAT STATE .
31 NEVERTHELESS , IT APPEARS FROM THE ABOVE FINDINGS MADE BY THE COURT WITH REGARD TO THE BELGIAN GOVERNMENT ' S SECOND SUBMISSION THAT THE CONTESTED DECISION IS SUFFICIENTLY SUPPORTED BY THE OBJECTIVE INFORMATION REFERRED TO IN THE STATEMENT OF THE REASONS ON WHICH IT WAS BASED , OF WHICH THE BELGIAN GOVERNMENT WAS FULLY APPRISED AND IN RESPECT OF WHICH IT WAS AFFORDED EVERY OPPORTUNITY TO MAKE KNOWN ITS VIEWS . IT FOLLOWS THAT , EVEN WITHOUT THE COMMENTS WHICH THE COMMISSION RECEIVED FROM INTERESTED THIRD PARTIES IN THE COURSE OF THE PROCEDURE , THE DECISION COULD NOT HAVE BEEN SUBSTANTIVELY DIFFERENT . IN THOSE CIRCUMSTANCES THE MERE FACT THAT THE COMMISSION MENTIONED THOSE COMMENTS IN ITS DECISION WITHOUT HAVING AFFORDED THE MEMBER STATE CONCERNED AN OPPORTUNITY TO COMMENT ON THEM DOES NOT JUSTIFY A DECLARATION THAT THE DECISION IS VOID .
32 CONSEQUENTLY , THE APPLICATION MUST BE DISMISSED IN ITS ENTIRETY .
Decision on costs
COSTS
33 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE PLEADINGS . SINCE THE APPLICANT HAS FAILED IN ITS