Opinion of the Advocate General — ECLI:EU:C:2007:643
Date: 2007-10-25
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment Approximation of laws – Review procedures in respect of the award of public supply and public works contracts – Directive 89/665 – Audi alteram partem rule – Reconciliation with the protection of business secrets – Bodies responsible for review procedures (Council Directives 89/665, Art. 1(1) and 93/36, Art. 15(2)) Article 1(1) of Directive 89/665 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 92/50 relating to the coordination of procedures for the award of public service contracts, read in conjunction with Article 15(2) of Directive 93/36 coordinating procedures for the award of public supply contracts, as amended by Directive 97/52, must be interpreted as meaning that the body responsible for the reviews provided for in Article 1(1) must ensure that confidentiality and business secrecy are safeguarded in respect of information contained in files communicated to that body by the parties to an action, particularly by the contracting authority, although it may apprise itself of such information and take it into consideration. In the context of a review of 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 which has been filed with the body responsible for the review. 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. It is for the body responsible for the review to decide to what extent and by what process it is appropriate to safeguard the confidentiality and secrecy of that information, having regard to the requirements of effective legal protection and the rights of defence of the parties to the dispute and, in the case of judicial review or a review by another body which is a court or tribunal within the meaning of Article 234 EC, so as to ensure that the proceedings as a whole accord with the right to a fair trial. (see paras 51, 55, operative part)