Public Law

The case of Healthcare At Home Ltd v The Common Services Agency is a recent addition to the short list of cases on “disclosure” or “recovery” in public procurement. The decision highlights the deference exercised by the courts to the general principles of transparency and the right to a fair hearing.

Where EU law (including public procurement law) is in play, it is surprising that so many lawyers still advise their clients that the right to see a winning bidders tender, where relevant to the issues in the case, can be denied on the ground of commercial confidentiality without carrying out a balancing exercise of the conflicting rights in the light of the facts of the case. The preliminary ruling in the Varec v Belgium case demonstrates that there has to be a solution worked out by the national court that does not infringe the right to a fair hearing under Article 6 of the ECHR and rights under the Charter of Fundamental rights, as well as other rights where applicable.

National law, and EU legislation, must be read in such a way as to comply with the general principles of EU law, whether or not through the direct application of the ECHR. This must mean that EU directives and national legislation, including freedom of information legislation has to be read down to comply with the ECHR, and the over arching rights such as those to enjoyment of property and to a fair hearing. This was recognised by the English Court of Appeal last October in the Veolia case dealing with the right to inspect the accounts of local authorities. For more information on the Veolia case you can read our e-updates at your leisure here and here.

Niall McLean