ECJ on Confidentiality Protection in Public Procurement

Jan 4, 2023 Benn-Ibler Rechtsanwälte

In its most recent ruling on public procurement, the European Court of Justice (ECJ) ruled as follows:

Protection of confidentiality must be weighed against the requirement of transparency and effective judicial protection. National legislation requiring the publication of all information submitted by tenderers (with the exception of business secrets) is therefore contrary to EU law.

In the original case, the Polish State Water Management Company had launched an open tender procedure to award a public contract for the development of environmental management projects. At the end of the tender procedure, an unconsidered bidder appealed to a Polish court seeking the annulment of the decision to award the contract to a different bidder, also a re-examination of the bids and the disclosure of certain pieces of information. The referring court has now asked the ECJ about the limitations on the confidentiality of information submitted by tenderers together with their bids within the framework of public procurement procedures.

Consequently, the ECJ addressed the scope and enforceability of the prohibition for contracting authorities to disclose information provided to them by candidates in the course of public procurement procedures.

With regard to Directive 2014/24 on public procurement, the Court clarified that the protection of confidentiality goes beyond the protection of trade secrets and pointed out that, under that directive, the prohibition of disclosure of information transmitted and classified as confidential applies unless otherwise provided for by that national legislation to which the contracting authority is subject. Consequently, Member States are not prevented from balancing the confidentiality provided for in this Directive against the provisions of national law that pursue other legitimate interests such as access to information in order to ensure the greatest possible transparency of public procurement procedures. However, national legislation requiring the publication of all information, with the exception of business secrets, is no longer covered.

Judgment ECJ, C-54/21 (17 November 2022)