ADMINISTRATIVE | The European Court of Justice examines access to documents in public procurement procedures

On 10 June 2025, the EU Court of Justice (ECJ) issued its judgment in case C-686/24 (Nidec Asi SpA and Ceisis SpA Sistemi Impiantistici Integrati v Ministero per gli Affari europei, Politiche di coesione e Piano nazionale di ripresa e resilienza and Others). The ruling concerns the interpretation of Article 39 of Directive (EU) No. 2014/25 of 26 February 2014 on procurement procedures by companies operating in the water, energy, transport and postal services sectors. More specifically, the matter in dispute concerned whether the technical offer submitted by one of the participants in the public procurement procedure could be disclosed in its entirety. To clarify, the defendant in the main proceedings opposed access on the grounds that it was exploratory and, if granted, would harm trade secrets. The relevant national provision, Article 53 of Legislative Decree No. 50 of 18 April 2016, now replaced by Legislative Decree No. 36 of 31 March 2023, established that “defensive” access took precedence over trade secrets. The Court declared this principle contrary to EU law, requiring contracting authorities to always strike a balance between the needs of defence and secrecy. Although it concerns an article that has now been abolished, the interpretation provided by the Court could have an impact on Italian case law, as the New Public Contracts Code, in Article 35, reproduces the principle already expressed in Legislative Decree No. 50/2016, fund contrary to EU law.

Newsletter n. 109 – July 2025