Judgment of the Court (Fourth Chamber) of 17 November 2022 (request for a preliminary ruling from the Krajowa Izba Odwoławcza — Poland) — Antea Polska S.A., Pectore-Eco sp. z o.o., Instytut Ochrony Środowiska — Państwowy Instytut Badawczy v Państwowe Gospodarstwo Wodne Wody Polskie

(Case C-54/21) (1)

(Reference for a preliminary ruling - Public procurement - Directive 2014/24/EU - Principles of awarding contracts - Article 18 - Transparency - Article 21 - Confidentiality - Insertion of those principles in the national legislation - Right of access to the essential content of the information provided by tenderers concerning their experience and references, concerning the persons proposed to carry out the contract and concerning the design of the proposed projects and the manner of performance - Article 67 - Contract award criteria - Criteria relating to the quality of the proposed work or services - Requirement of precision - Directive 89/665/EEC - Article 1(1) and (3) - Right to an effective remedy - Remedy in the event of infringement of that right on account of the refusal to grant access to non-confidential information)

(2023/C 15/10)

Language of the case: Polish

Referring court

Krajowa Izba Odwoławcza

Parties to the main proceedings

Applicants: Antea Polska S.A., Pectore-Eco sp. z o.o., Instytut Ochrony Środowiska — Państwowy Instytut Badawczy

Defendant: Państwowe Gospodarstwo Wodne Wody Polskie

Intervening parties: Arup Polska sp. z o.o., CDM Smith sp. z o.o., Multiconsult Polska sp. z o.o., Arcadis sp. z o.o., Hydroconsult sp. z o.o. Biuro Studiów i Badań Hydrogeologicznych i Geofizycznych

Operative part of the judgment

Article 18(1) and Article 21(1), read in conjunction with Article 50(4) and Article 55(3) of 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC,

must be interpreted as precluding national legislation on public procurement which requires that, with the sole exception of trade secrets, information sent by the tenderers to the contracting authorities must be published in its entirety or communicated to the other tenderers, and as precluding a practice of contracting authorities whereby requests for confidential treatment in respect of trade secrets are accepted as a matter of course.

Article 18(1), Article 21(1), and Article 55(3) of Directive 2014/24,

must be interpreted as meaning that the contracting authority

—

must, in order to determine whether it will refuse a tenderer whose admissible tender has been rejected access to the information which other tenderers submitted concerning (i) their relevant experience and the references relating thereto, (ii) the identity and professional qualifications of the persons that they propose will perform the contract or the sub-contractors and (iii) the design of the projects to be performed under the contract and the manner of performance of that contract, assess whether that information has a commercial value outside the scope of the public contract in question, where its disclosure might undermine legitimate commercial or fair competition;

—	may, moreover, refuse to grant access to that information where, even though it does not have such commercial value, its disclosure would impede law enforcement or would be contrary to the public interest; and

—	must, where full access to information is refused, grant that tenderer access to the essential content of that information, so that observance of the right to an effective remedy is ensured.

Article 18(1) of Directive 2014/24, read in the light of Article 67(4) of that directive,

must be interpreted as not precluding the ‘project development design’, planned to be carried out under the public contract in question and the ‘description of the manner of performance of the contract’ for that contract from being included among the criteria for the award of the contract, provided that those criteria are accompanied by indications enabling the contracting authority to make a specific and objective assessment of the tenders submitted.

Article 1(1) and (3) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014,

must be interpreted as meaning that, in the event of a finding, when dealing with an action brought against a decision awarding a public contract, of an obligation on the part of the contracting authority to disclose to the applicant information which was wrongly treated as confidential and of a breach of the right to an effective remedy on account of the failure to disclose that information, that finding does not necessarily have to lead to the adoption, by that contracting authority, of a new contract award decision, provided that the national procedural law permits the court hearing the case to adopt, during the proceedings, measures which restore observance of the right to an effective remedy or allow it to find that the applicant may bring a new action against the award decision that has already been made. The time limit for bringing such an action must not start to run until the applicant has access to all the information which had been wrongly classified as confidential.

(1) OJ C 228, 14.6.2021.