- Public Procurement—protection of confidential information (Klaipėdos regiono atliekų tvarkymo centras v Ecoservice)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
EU Law analysis: The recent ruling of the Court of Justice in Klaipedos provides guidance on the approach that contracting authorities and national courts should take to the protection of confidential information in the context of a review of a public procurement procedure in accordance with Directive 89/665/EEC (Remedies Directive). The court confirmed, following previous cases including Varec, that, where in the context of a challenge to a procurement decision, an unsuccessful tenderer seeks access to the confidential information of the successful tenderer, contracting authorities and national courts are required to balance the protection of the confidential information and trade secrets of the successful tenderer with the rights of defence and effective judicial protection afforded to unsuccessful tenderers. Contracting authorities and courts should not accept at face value a mere claim of confidentiality by the successful tenderer. The tenderer must demonstrate the genuinely confidential nature of the information which it claims should not be disclosed. Where the contracting authority withholds information on the grounds of confidentiality it is obliged to state reasons which may be then be subject to review by the national court. Written by Nick Pimlott, partner at Fieldfisher.
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