The decision of the European Court of Justice is based on a legal dispute over the award of a project development contract in Poland (judgment of 17.11.2022 in Case C-54/21 "Antea"). In the review proceedings brought against the award of the contract, the applicant company requested, inter alia, the disclosure of certain documents and information from the tenders of competing bidders, which they had marked as trade and business secrets. The applicant justified this demand by stating that the disclosure — in particular of references, subcontractors and execution concepts — was necessary because without appropriate knowledge the applicant's own application for review could not be formulated effectively. The applicant company also accused the contracting authority of having violated public procurement law because the alleged confidentiality and need for protection of this information — which was merely marked as a "trade and business secret" and not substantiated beyond that — had been accepted without reflection and the applicant had not been able to do so with this blanket justification, access was denied.
Against this background, the European Court of Justice has made a number of practically significant statements in its decision about the proper handling of confidential information relevant to the offer under public procurement law. One of the most important findings is that contracting authorities may not automatically follow the mere assurances of tenderers that certain information provided would constitute trade and business secrets to be treated as confidential and may refuse to disclose and pass on to other parties to the proceedings simply by referring to this allegation. Instead, bidders would have to justify the actual confidentiality of certain documents and information in detail and contracting authorities would have to demand appropriate evidence for this. For example, the economic value and competitive relevance of the information in question, its protection by an intellectual property right or aspects of public interest may be important here. If this substantiated evidence is not provided convincingly, the documents and information concerned must be made available to other interested parties requesting disclosure.
According to this, according to the latest case law of the European Court of Justice, a simple marking of sensitive bid components as "trade and business secrets" will no longer be sufficient to ensure confidentiality vis-à-vis competitors in procurement procedures. In particular, when inspecting the file in review proceedings, there is now a risk that the contents of the offer will be made available to competitors contrary to the declared will of the company concerned. This shall apply even if these documents have been marked as trade and business secrets. This is nothing more and nothing less than a departure from a permanent practice that has been widely established and generally accepted (not only) in Germany since the beginning of EU/GWB public procurement law, on which companies have been able to rely so far.
The first public procurement chambers and contracting authorities have already taken up this new development and have begun to pass on appropriately marked information in tenders and pleadings without redacting, with reference to this decision of the European Court of Justice, without first giving the tenderer concerned the opportunity to comment in detail. In order to protect confidential information in the best possible way, participants in procurement procedures must therefore now take special measures.
We invite you to discuss this impact on your participation in procurement procedures with us in a half-hour online seminar and will be happy to arrange an individual date for this.
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