The European Court of Justice (ECJ) has handed down its judgment (Varec C-450/06) in relation to a preliminary reference from a Belgian Court on questions concerning the treatment of confidential information furnished by a supplier during the award of a tender. During the tender procedure for the provision of tank track links to the Belgian Defence Ministry, the winning bidder Diehl provided various plans and samples that were returned to it after the evaluation of its bid. The rejected bidder, Varec, took an appeal against the award before the national courts where it requested disclosure to it of all the information supplied by Diehl during the tender process. Diehl refused on the basis of commercial confidentiality and the Belgian court took a preliminary reference to the ECJ. The ECJ ruled that the procurement rules are intended to ensure fair competition and therefore contracting authorities are obliged to respect the confidentiality of information. The lodging of an appeal should not give rights to access to information that could be used to distort competition or prejudice the legitimate interests of an economic operator. The national court hearing the appeal should have access to all relevant information and it is up to that court to consider arguments on whether disclosure would damage the legitimate commercial interests of a competitor in conformity with the rights of fair hearing guaranteed by Article 6 of the European Convention on Human Rights.
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Confidentiality of tender information subject to an appeal
- Nabarro LLP
- Cyrus Mehta, Rachel Bickler
- Belgium, European Union
- March 12 2008
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