1.

In the present reference for a preliminary ruling, the Court is asked to specify the limits of the confidentiality of information included by tenderers in their tenders in procedures for the award of public contracts.

2.

In the judgment in Klaipèdos, ( 2 ) delivered after this request for a preliminary ruling was registered, the Court addressed the issues raised by the articles of Directive 2014/24/EU, ( 3 ) in particular Article 21, that deal with the confidentiality of such information.

3.

The findings in that judgment provide answers to some of the questions raised by the Krajowa Izba Odwoławcza (Public Procurement Office, Poland), which is the referring body. ( 4 )

4.

Article 21 (‘Confidentiality’) states:

‘1.   Unless otherwise provided in this Directive or in the national law to which the contracting authority is subject, in particular legislation concerning access to information, and without prejudice to the obligations relating to the advertising of awarded contracts and to the information to candidates and tenderers set out in Articles 50 and 55, the contracting authority shall not disclose information forwarded to it by economic operators which they have designated as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of tenders.

2.   Contracting authorities may impose on economic operators requirements aimed at protecting the confidential nature of information which the contracting authorities make available throughout the procurement procedure.’

5.

Article 50 (‘Contract award notices’) provides:

‘…

4.   Certain information on the contract award or the conclusion of the framework agreement may be withheld from publication where its release would impede law enforcement or otherwise be contrary to the public interest, would harm the legitimate commercial interests of a particular economic operator, public or private, or might prejudice fair competition between economic operators.’

6.

In accordance with Article 55 (‘Informing candidates and tenderers’):

‘…

3.   Contracting authorities may decide to withhold certain information referred to in paragraphs 1 and 2, regarding the contract award, the conclusion of framework agreements or admittance to a dynamic purchasing system, where the release of such information would impede law enforcement or would otherwise be contrary to the public interest, would prejudice the legitimate commercial interests of a particular economic operator, whether public or private, or might prejudice fair competition between economic operators.’

7.

According to recital 18:

‘Furthermore, the acquisition, use or disclosure of trade secrets, whenever imposed or permitted by law, should be treated as lawful for the purposes of this Directive. … In particular, this Directive should not release public authorities from the confidentiality obligations to which they are subject in respect of information passed on by trade secret holders, irrespective of whether those obligations are laid down in Union or national law. Such confidentiality obligations include, inter alia, the obligations in respect of information forwarded to contracting authorities in the context of procurement procedures, as laid down, for example, in … Directive 2014/24/EU …’

8.

Article 1 (‘Subject matter and scope’) states:

‘…

2.   This Directive shall not affect:

…

…’

9.

Article 2 (‘Definitions’) states:

‘For the purposes of this Directive, the following definitions apply:

…’

10.

Article 3 (‘Lawful acquisition, use and disclosure of trade secrets’) provides:

‘…

2.   The acquisition, use or disclosure of a trade secret shall be considered lawful to the extent that such acquisition, use or disclosure is required or allowed by Union or national law.’

11.

Article 7 provides:

‘1.   The contracting authority shall prepare and conduct the procurement procedure in a manner ensuring fair competition and equal treatment of all economic operators and in accordance with the principles of proportionality and transparency.

…’

12.

Article 8 reads:

‘1.   The procurement procedure shall be public.

2.   The contracting authority may restrict access to information related to the procurement procedure only in the cases determined by law.

2a.   The contracting authority may set out in the tender specifications requirements that must be met in order to maintain the confidentiality of information provided to the economic operator in the course of the procedure.

3.   Information constituting a business secret within the meaning of the provisions on unfair competition shall not be disclosed if the economic operator, not later than the deadline for submission of tenders or requests to participate, has stated that the information concerned may not be disclosed and has demonstrated that the reserved information constitutes a business secret. An economic operator may not designate as confidential the information referred to in Article 86(4). This provision shall apply mutatis mutandis to competitions.

…’

13.

Article 11(2) states:

‘A “business secret” shall be construed as technical, technological, scientific and organisational information of an undertaking or other information of economic value that is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons normally dealing with that type of information, provided that the entity authorised to use such information or to which such information is available has taken reasonable measures to keep it confidential.’

14.

In 2019, ( 8 ) the Państwowe Gospodarstwo Wodne Wody Polskie (National Water Management Authority, Poland) launched an open procedure to award a contract for the ‘preparation of draft second updates of river basin management plans (II aPGW) together with the methodologies’.

15.

The tender specifications stated that tenders would be evaluated on the basis of three criteria: price (40%), concept of the study (42%) and description of the manner of performance of the contract (18%).

16.

Tenders were submitted by four operators, including a consortium of undertakings headed up by ANTEA POLSKA S.A. (‘Antea Polska’). ( 9 ) The contract was awarded to CDM Smith Sp. z o.o. (‘CDM’).

17.

Antea Polska, which had been ranked second, appealed the award before the Krajowa Izba Odwoławcza (Public Procurement Office). Among its claims, it sought access to certain documents and to the information described by CDM and other tenderers as being a trade secret.

18.

Antea Polska was of the view that classifying that information as secret infringed the principles of equal treatment and transparency requiring confidentiality to be interpreted strictly. It further claimed that the excessive admittance of information as confidential, combined with the absence of an adequate statement of reasons for the classifications granted, had deprived it of its right to an effective remedy, since it was unaware of the details of its competitors’ tenders.

19.

In rebuttal of that position, the contracting authority argued, inter alia, that:

20.

It was in those circumstances that the Krajowa Izba Odwoławcza (Public Procurement Office), which is responsible for adjudicating on the challenge to the contracting authority’s decision, referred seven questions for a preliminary ruling. As directed by the Court, I shall deal only with the first four, which are worded as follows:

21.

The request for a preliminary ruling was registered at the Court on 29 January 2021.

22.

Written observations were lodged by Antea Polska, Państwowe Gospodarstwo Wodne Wody Polskie (National Water Management Authority), the Austrian and Polish Governments and the European Commission.

23.

The hearing, held on 16 March 2022, was attended by Antea Polska, Państwowe Gospodarstwo Wodne Wody Polskie (National Water Management Authority), CDM, the Polish Government and the Commission.

24.

In the judgment in Klaipėdos (paragraphs 96 to 102), the Court held that the legislation applicable to cases relating to the protection of confidentiality in procedures for the award of public contracts is contained in Directive 2014/24, which is the lex specialis, and not in Directive 2016/943.

25.

That finding took into account, among other considerations, the fact that:

26.

On that basis, there is no reason why account should not be taken of the concepts under Directive 2016/943 ( 11 ) where, as here, the national legislation refers to them in laying down the rules governing confidentiality in public procurement procedures. I shall come back to this point later.

27.

The referring court wishes to ascertain first and foremost whether the interpretation of Article 21 of Directive 2014/24 ( 12 ) authorises the tenderer to classify as confidential, on the ground that it is a trade secret, any information which it does not wish to disclose to its competitors.

28.

It must be assumed that the concern which the referring court raises by that question has to do not so much which the tenderer’s unilateral action as with the consequences which that action has for the contracting authority.

29.

To my mind, the answer can be inferred from the judgment in Klaipėdos, where the Court held:

30.

Thus, both the contracting authority and the bodies reviewing its decisions are entrusted with the task of evaluating the confidentiality claimed by the tenderer, rather than simply being able to assume that assertion to be true. They have sufficient powers to combat what, according to the order for reference, would constitute an abusive practice (‘pathological abuse’) on the part of tenderers used to making disproportionate use of the option of classifying as confidential elements of their tenders which are in fact not.

31.

It follows from the order for reference that, notwithstanding that the Polish legislature sought to limit the extent of confidentiality, certain tenderers systematically claim that a large part of the information contained in their tenders is a trade secret and contracting authorities are inclined to give credence to such claims. ( 17 )

32.

If that is the case and there is an anomaly in the implementation of the national provision transposing Directive 2014/24, it is for the national courts to correct that anomaly in accordance with EU law.

33.

Although the referring body does not devote particular attention to the issue which I shall be looking at now, the restriction imposed by the national provision (Article 8(3) of the Law on public procurement), which prevents the disclosure only of the information constituting a trade secret within the meaning of the legislation on unfair competition, was discussed both in the parties’ observations and at the hearing. ( 18 )

34.

That issue had to do with whether the aforementioned national provision is compliant with Article 21 of Directive 2014/24, which protects a much broader sphere of confidentiality than technical and trade secrets ( 19 ) (it also covers, for example, ‘confidential aspects of tenders’).

35.

As I have explained previously, ( 20 ) in accordance with Article 21 of Directive 2014/24, protection is not confined to technical and trade secrets but also extends to, inter alia, the confidential aspects of tenders. That provision may therefore cover information that cannot strictly be classified as a technical or trade secret. In my view, that same idea is latent in various passages of the judgment in Klaipèdos. ( 21 )

36.

In so far as the reform of Article 11 of the Law on unfair competition, ( 22 ) which transposes Directive 2016/943, includes the definition of ‘trade secret’ contained in that directive, the Polish legislation on public procurement arrives, via that chain of references, at a concept of ‘trade secret’ as that term is used in Directive 2016/943. ( 23 )

37.

This indirectly raises the question as to whether Article 21 of Directive 2014/24 is compatible with domestic legislation which confers on confidentiality a more restricted scope than that specified in that provision.

38.

At first sight, there would appear to be no reason why the national law should not contain such a restriction, since Directive 2014/24 applies ‘unless otherwise provided in this Directive or in the national law to which the contracting authority is subject’.

39.

That caveat confers on Member States a discretion similar to that conferred by other provisions of Directive 2014/24 that refer to national legislation. An example is Article 57(7) of Directive 2014/24, which requires Member States to specify the implementing conditions for that article, ‘having regard to Union law’.

40.

The Court, however, has adopted the interpretation that ‘the Member States’ discretion is not absolute and …, once a Member State decides to incorporate one of the optional grounds for exclusion provided for in Directive 2014/24, it must respect the essential characteristics thereof, as expressed in that directive. By stipulating that the Member States are to specify “the implementing conditions for this Article”“having regard to Union law”, Article 57(7) of Directive 2014/24 prevents Member States from distorting the grounds for exclusion laid down in that provision or ignoring the objectives or principles underlying each of those grounds’. ( 24 )

41.

In my opinion, that case-law is transposable, by analogy, to this case. Since Member States may modulate the scope of confidentiality, provided that they have due regard for EU law, there is in principle no reason why the types of information benefiting from protection should not be confined to ‘trade secrets’ and, as such, be more restricted than under the general provision contained in Article 21 of Directive 2014/24.

42.

When it comes to interpreting the concept of trade secret, it may be useful to refer to Directive 2016/943, which clarifies the definition of that concept as employed in Article 21 of Directive 2014/24. This will be the case in particular where national legislation, by the operation of references which I have described above, links the assessment of confidentiality in the context of public procurement to trade secrets as defined in the law transposing Directive 2016/943.

43.

Directive 2016/943, in so far as it is intended to lay down general rules on trade secrets, will enable the contracting authority – and the bodies reviewing its decisions – to strike a balance between the principles that specifically apply to confidentiality and those on which the system of public procurement under Directive 2014/24 is based, as well as to access an effective scheme of remedies.

44.

However, it is important to take into account provisions of Directive 2014/24 other than Article 21, in the light of the general objectives pursued by that directive. Pursuant to these, certain confidential information, even if it does not strictly fall within the concept of trade secret, must be protected in order to preserve undistorted competition between economic operators or the legitimate commercial interests of an economic operator.

45.

Article 21 of Directive 2014/24 requires the contracting authority to provide candidates and tenderers with the information laid down in Articles 50 and 55. That information does not in principle constitute confidential information but it may become confidential should the circumstances referred to in Article 50(4) and Article 55(3) of Directive 2014/24 materialise.

46.

Thus, the duty of confidentiality is to apply to data (not necessarily constituting trade secrets) the disclosure of which ‘would prejudice the legitimate commercial interests of a particular economic operator … or might prejudice fair competition between economic operators’.

47.

Although Article 55(3) of Directive 2014/24 specifically refers to the information mentioned in paragraphs 1 and 2 of that article, what matters for the purposes of this case is the exhortation not to prejudice the legitimate commercial interests of a (rival) economic operator and to preserve competition.

48.

In its case-law on public procurement, the Court has adopted a broader interpretation of that twofold exhortation. It follows from this that:

49.

Article 50(4) and Article 55(3) of Directive 2014/24 leave in the hands of the contracting authorities the decision not to communicate the sensitive information to which those two provisions refer. Since neither of those provisions includes the reservation that characterises Article 21(1) of that directive (‘unless otherwise provided … in national law’), their application is not conditional upon provisions of national law.

50.

In any event, the ability of contracting authorities to disclose information contained in tenders, even if it is not a trade secret stricto sensu, may be limited by other sectoral provisions imposing such restrictions. ( 27 )

51.

In short, in answer to the first question referred for a preliminary ruling, I take the view that Article 21 of Directive 2014/24:

52.

By these questions, which can be answered together, the referring body expresses its doubts as to whether the tenderer may seek the benefit of confidentiality in particular for:

53.

Once again, the judgment in Klaipèdos provides the referring body with the key to drawing its own inference, in the dispute under its examination, as to whether or not that information (or any other information included in a tenderer’s tender) is confidential.

54.

In the judgment in Klaipèdos, the Court takes the view, as I see it, that confidentiality should be as specific as possible: ( 28 )

55.

The interpretation of Article 21 of Directive 2014/24 that flows from that line of case-law is consistent with other provisions of that directive that refer to the specificity of confidentiality. ( 32 )

56.

At the hearing, the attendees discussed the ‘principle of minimisation’, to use the referring body’s term, as a criterion for limiting confidentiality to the minimum necessary. Thus, only information, data, aspects or sections of the documents included in tenders (or of the tenders themselves) which are deemed essential to safeguarding the legitimate interests of the tenderer and to ensuring that none of its rivals distorts competition between them may be treated as confidential.

57.

There is no reason why that principle, which applies only to specific parts of the information supplied, and not to the documents in their entirety, should not be implemented if the contracting authority considers it appropriate to do so. In any event, it is not possible to establish a priori when any given documents are likely to be classified as confidential, since their classification as such depends on the characteristics of each document in a particular dispute.

58.

The order for reference seems to support the inference that the contracting authority acted in a general manner in relation to specific categories of information, thus departing from the case-by-case classification required.

59.

This, however, is an assessment that falls exclusively to the referring body, which must carry out a detailed and reasoned evaluation of:

60.

Without wishing to take the referring body’s place in carrying out this task (which, in fact, has more to do with implementing the provision than with interpreting it), I shall refer briefly to the tender information with which the questions referred for a preliminary ruling are concerned, and which the referring body summarises as falling into two categories.

61.

The first category includes documents which describe the ‘subjective situation of the economic operator selected, from the point of view of its experience and the entities and personnel proposed for the purposes of performing the contract’.

62.

According to the referring body, the only documents required by the tender specifications were those referred to in Articles 59 and 60 of, and Annex XII to, Directive 2014/24 (in addition to those required by national law).

63.

If that is the case, it is difficult to regard documents the disclosure of which is prescribed by Directive 2014/24 as being capable of having the status of a trade secret or some other type of confidential information.

64.

The referring body goes on to say, with regard to data relating to the tenderer’s subjective situation (financial capacity), that the tender specifications simply stated that this must be in excess of a certain level, but did not require the tenderer to provide details of its financial capacity or to specify the funds which it holds in its bank.

65.

Much the same can be said of the situation of third parties or entities on whose resources the tenderer wishes to rely, or of the subcontractors it proposes in its tender. Without prejudice to the general obligations in relation to the protection of personal data, no such designations can be kept secret where the tender specifications require them to be disclosed, any claim of a hypothetical risk that the tenderers’ human resources may be ‘poached’ being insufficient in this regard.

66.

The second category of documents includes ‘studies required by the contracting authority … to aid the evaluation of tenders according to quality criteria’, more specifically ‘the concept of the study’ and the ‘description of the manner of performance of the contract’.

67.

In principle, the possibility cannot be ruled out that one or more of the documents included by an economic operator in its tender will contain sensitive information benefiting from protection as constituting intellectual property to which third parties may not have access without proper authorisation. ( 33 )

68.

At the hearing, some of the attendees expressed disagreement with the foregoing proposition, although they ultimately confirmed that it will be for the referring body to assess, in the light of the circumstances of the dispute, whether such rights have been infringed. ( 34 )

69.

The foregoing reflections bear out how difficult it is to adopt a priori an abstract classification as confidential information, whether or not constituting a trade secret, of data included in tenderers’ tenders. Inevitably, Article 21 of Directive 2014/24 has to use generic formulae that contracting authorities and review bodies can apply in a reasoned manner in each particular case.

70.

In the light of the foregoing, I propose that the answers to the four questions referred for a preliminary ruling by the Krajowa Izba Odwoławcza (Public Procurement Office, Poland) should be as follows:

Article 21 of Directive 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 meaning that: