Varec SA v Belgian State.
Date: 2008-02-14
23. In that regard, it must be observed that, in proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. Similarly, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see, in particular, Case C‑326/00 IKA [2003] ECR I‑1703, paragraph 27; Case C‑145/03 Keller [2005] ECR I‑2529, paragraph 33; and Case C‑419/04 Conseil général de la Vienne  [2006] ECR I‑5645, paragraph 19).
24. Nevertheless, the Court has also held that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see, to that effect, Case 244/80 Foglia [1981] ECR 3045, paragraph 21). The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, in particular, Case C‑379/98 PreussenElektra  [2001] ECR I‑2099, paragraph 39; Case C‑390/99 Canal Satélite Digital  [2002] ECR I‑607, paragraph 19; and Conseil général de la Vienne , paragraph 20).
27. It must be borne in mind that, according to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying, in principle, to situations existing before their entry into force (see Case C-201/04 Molenbergnatie  [2006] ECR I‑2049, paragraph 31 and the case-law cited).
34. The principal objective of the Community rules in that field is the opening-up of public procurement to undistorted competition in all the Member States (see, to that effect, Case C‑26/03 Stadt Halle and RPL Lochau  [2005] ECR I‑1, paragraph 44).
45. As the order for reference shows, Varec claimed before the Conseil d’État that the right to a fair hearing means that both parties must be heard in any judicial procedure, that the adversarial principle is a general principle of law, that it has a foundation in Article 6 of the ECHR, and that that principle means that the parties are entitled to a process of inspecting and commenting on all documents or observations submitted to the court with a view to influencing its decision.
47. The adversarial principle means, as a rule, that the parties have a right to a process of inspecting and commenting on the evidence and observations submitted to the court. However, in some cases it may be necessary for certain information to be withheld from the parties in order to preserve the fundamental rights of a third party or to safeguard an important public interest (see Rowe and Davis  v The United Kingdom  [GC] no 28901/95, §61, ECHR 2000‑II, and V  v Finland  no 40412/98, §75, ECHR 2007‑…).
48. One of the fundamental rights capable of being protected in this way is the right to respect for private life, enshrined in Article 8 of the ECHR, which flows from the common constitutional traditions of the Member States and which is restated in Article 7 of the Charter of fundamental rights of the European Union, proclaimed in Nice on 7 December 2000 (OJ 2000 C 364, p. 1) (see, in particular, Case C‑62/90 Commission  v Germany  [1992] ECR I‑2575, paragraph 23, and Case C‑404/92 P X  v Commission  [1994] ECR I‑4737, paragraph 17). It follows from the case-law of the European Court of Human Rights that the notion of ‘private life’ cannot be taken to mean that the professional or commercial activities of either natural or legal persons are excluded (see Niemietz  v Germany , judgment of 16 December 1992, Series A no 251‑B, §29; Société Colas Est and Others  v France , no 37971/97, §41, ECHR 2002‑III; and also Peck v The United Kingdom no 44647/98, §57, ECHR 2003‑I). Those activities can include participation in a contract award procedure.
49. The Court of Justice has, moreover, acknowledged that the protection of business secrets is a general principle (see Case 53/85 AKZO Chemie and AKZO Chemie UK  v Commission  [1986] ECR 1965, paragraph 28, and Case C‑36/92 P SEP  v Commission  [1994] ECR I‑1911, paragraph 37).
51. It follows that, in the context of a review of a decision taken by a contracting authority in relation to a contract award procedure, the adversarial principle does not mean that the parties are entitled to unlimited and absolute access to all of the information relating to the award procedure concerned which has been filed with the body responsible for the review. On the contrary, that right of access must be balanced against the right of other economic operators to the protection of their confidential information and their business secrets.
52. The principle of the protection of confidential information and of business secrets must be observed in such a way as to reconcile it with the requirements of effective legal protection and the rights of defence of the parties to the dispute (see, by analogy, Case C-438/04 Mobistar  [2006] ECR I‑6675, paragraph 40) and, in the case of judicial review or a review by another body which is a court or tribunal within the meaning of Article 234 EC, in such a way as to ensure that the proceedings as a whole accord with the right to a fair trial.
53. To that end, the body responsible for the review must necessarily be able to have at its disposal the information required in order to decide in full knowledge of the facts, including confidential information and business secrets (see, by analogy, Mobistar , paragraph 40).
54. Having regard to the extremely serious damage which could result from improper communication of certain information to a competitor, that body must, before communicating that information to a party to the dispute, give the economic operator concerned an opportunity to plead that the information is confidential or a business secret (see, by analogy, AKZO Chemie and AKZO Chemie UK v Commission , paragraph 29).