GC stresses need for balanced protection of confidential information in public procurement (T-536/11)

In its Judgment in European Dynamics Luxembourg and Others v Commission, T-536/11, EU:T:2015:476, the GC has dismissed a challenge against a European Commission's decision to limit the disclosure of (confidential) information made available to a disappointed tenderer. 

In the case at hand, the Commission had redacted some of the comments made by the evaluation team in order to protect business secrets of tenderers ranked higher than Evropaïki Dynamiki. The latter argued that, by doing so, the Commission failed to discharge its duty to give reasons for its decision not to rank Evropaïki Dynamiki first in the cascade mechanism that would determine call-offs within a framework agreement for software services. The GC dismissed Evropaïki Dynamiki's challenge on the basis that the Commission had struck an appropriate balance between Evropaïki Dynamiki's right to access the information needed to defend its legal rights and third party business interests.

Some of the issues discussed (again) by the GC are worth mentioning, particularly as the duty to disclose the relative merits of the bids submitted by the successful tenderers is concerned (for a recent discussion, in relation to the UK's transposition of disclosure and debriefing rules in Directive 2014/24, see here).  The GC, with a good sense of the need to balance the right to be informed of the reasons for an award decision with the rights of competitors to have their business secrets protected, dismissed Evropaïki Dynamiki's challenge on the following grounds:
48 ... although the applicants submit that the Commission must disclose the information concerning the other successful tenderers’ bids that could be considered to be confidential and state how those tenderers could be harmed by that disclosure, they merely make a general request, without indicating, in the part of the pleadings relating to that plea in law, the comments or the parts of the bids to which they refer, whose disclosure is allegedly necessary for effective legal and judicial protection.
49 It should be recalled that ... the contracting authority is entitled not to disclose certain details where disclosure would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings.
50 In addition, it is apparent from the case-law that, in the context of an action brought against 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. 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. 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 and, in the case of judicial review, in such a way as to ensure that the proceedings as a whole accord with the right to a fair trial (see, to that effect, judgment of 23 November 2011 in bpost v Commission, T‑514/09, EU:T:2011:689, paragraph 25 and the case-law cited). It is apparent from the applicants’ detailed observations set out in their letter of 5 August 2011 that they had sufficient knowledge of the relative advantages of the other successful tenderers’ bids (T-536/11, paras 48 to 50, emphasis added).
The GC could not have expressed it in any clearer terms, and this line of reasoning clearly aims at reaching an appropriate balance between, on the one hand, facilitating access to procurement remedies by disclosing necessary information and, on the other hand, ensuring the protection of information which disclosure could have a negative effect on competition and/or harm legitimate business interests. 

This is a much needed restriction of the excessive level of transparency that oftentimes affects public procurement settings and, consequently, must be warmly welcomed [for discussion, see A Sanchez-Graells, The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives (University of Leicester School of Law Research Paper No. 13-11, 2013)].