Information;Order — ECLI:EU:C:2025:448
Date: 2025-06-10
Language of the case: Italian
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling
Origin: Italy

Translation  C-686/24 – 1 
Case C-686/24 
Reference for a preliminary ruling 
Date lodged: 
17 October 2024 
Referring court: 
Consiglio di Stato (Italy) 
Date of the decision to refer: 
15 October 2024 
Applicants: 
Nidec Asi SpA 
Ceisis SpA Sistemi Impiantistici Integrati 
Defendants: 
Ministero per gli Affari europei, politiche di coesione e piano 
nazionale di ripresa e resilienza 
Autorità di Sistema portuale del Mare di Sardegna 
Ministero delle Infrastrutture e dei Trasporti 
Other party to the proceedings: 
Ingegneria Costruzioni Colombrita SRL 
  
… 
ITALIAN REPUBLIC 
The Consiglio di Stato (Council of State) sitting as a Court (Fifth Chamber) 
 
gives the following 
ORDER 
EN 
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in relation to the action … brought by 
Nidec Asi s.p.a. and Ceisis s.p.a. …; 
v 
Ministero per gli Affari europei, politiche di coesione e piano nazionale di ripresa 
e resilienza (Ministry of European Affairs, Cohesion Policies and the National 
Recovery and Resilience Plan), which did not enter an appearance; 
Autorità di Sistema portuale del Mare di Sardegna (Port System Authority of the 
Sea of Sardinia) and Ministero delle infrastrutture e dei trasporti (Ministry of 
Infrastructure and Transport) …; 
intervening parties 
Ingegneria Costruzioni Colombrita s.r.l. …, 
…; 
for the variation 
of the collegiate order of the Tribunale amministrativo regionale per la Sardegna 
(Sezione Prima) (Regional Administrative Court, Sardinia (First Chamber)) 
No 193/2024 …; 
…; 
…; 
…; 
… [national procedure]; 
1 The dispute concerns the tender procedure in the special sectors launched by the 
Port System Authority of the Sea of Sardinia (‘the contracting authority’), for the 
assignment of the final executive design and construction and commissioning 
works of an on-shore power supply (cold-ironing) plant for the MV power supply 
of cruise ships and various types of ships in various ports in Sardinia. The tender 
amount was EUR 55 653 309.98. 
2 By Decree No 473/2023, the tender was awarded to a consortium formed by 
Nidec Asi s.p.a. and Ceisis s.p.a. (‘Nidec’ or ‘the successful tenderer’), which 
obtained a score of 98.41, while the other tenderer, Costruzioni Colombrita s.r.l. 
(‘Colombrita’) obtained a score of 72.41. 
3 Colombrita lodged an action with the Tribunale Amministrativo Regionale 
[Regional Administrative Court, Sardinia, Italy] against the tender procedures, 
NIDEC ASI AND CEISIS 
 
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arguing that the time taken to assess the bids was brief and the scores received 
were unreasonable. 
4 In the same action, Colombrita applied for access pursuant to the second indent of 
Article 116 of the Italian Code of Administrative Procedure and sought annulment 
of the memos of 10 January 2024 and 19 January 2024 by which the contracting 
authority granted only partial access to the tender documents. 
5 The Regional Administrative Court of Sardinia, by decision No 193/2024, 
partially granted the application for access and, to that effect: 
- ordered ‘… disclosure of the technical bid and the [CVs] of the professionals 
indicated in the offer by Nidec …;’ 
- did not order the production of Nidec’s documents that were not included in the 
technical bid. 
6 Nidec brought an appeal against that access decision, while Colombrita did not 
file a cross-appeal. 
7 By Order No 5617/2024, the Council of State: 
- dismissed the appeal in part in so far as access to CVs is concerned, which 
therefore remains definitively allowed; 
- ordered the submission of Nidec’s technical bid in its entirety for the sole 
purpose of inspection by the Panel. 
8 … [national procedure]. 
(I) Subject matter of the dispute 
9 The Panel observes that the subject matter of the dispute referred to the Court of 
Justice is limited to whether Nidec’s technical bid is open to inspection in its 
entirety. 
(II) The administrative access procedure 
10 For the purposes of formulating the question to be submitted to the Court of 
Justice, the Panel makes the following statements regarding the administrative 
access procedure: 
- after Colombrita submitted its request for access to the contracting authority, 
Nidec detailed and gave reasons for the need for secrecy, during both the tender 
and the access procedure, pointing out the specific parts of the technical bid not to 
be disclosed; 
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- the contracting authority forwarded Nidec’s technical bid to Colombrita, 
redacting the parts containing technical and trade secrets, as verified by the Panel 
following the submission of the entire technical bid during the proceedings; 
- … [numbers of redacted paragraphs]; 
- the contracting authority justified the higher score awarded to Nidec’s technical 
bid … on the basis of four criteria and by specifying the features of the bid that 
deserved the score awarded: the salient features were then disclosed, without it 
being possible to identify the confidential information … [tender report details]. 
The Panel is of the opinion that the contracting authority, in so doing: 
- protected the information Nidec had provided, by classifying it as technical 
or trade secrets, applying the relevant legal concept properly. This concept is 
inferred from Article 98 of Legislative Decree No 30/2005, which, implementing 
Article 2(1) of Directive … 2016/943/EU, contains the ‘homogeneous definition 
of a trade secret’, which covers ‘know-how, business information and 
technological information where there is both a legitimate interest in keeping 
them confidential and a legitimate expectation that such confidentiality will be 
preserved. Furthermore, such know-how or information should have a 
commercial value, whether actual or potential’ (recital 14); 
- complied with the requirements to state reasons set out by the Court of Justice 
(see below), by giving reasons both for the decision not to disclose certain data 
and for selecting the bid. 
(III) Concept of trade secret 
11 For a better understanding of the question referred, the Panel specifies the 
terminology it will use. Article 53(5)(a) of Legislative Decree No 50/2016 refers 
to ‘technical or trade secrets’. The Panel, henceforth, will use the expression 
‘trade secrets’ as including ‘technical’ ones, in line with Directive 2016/943/EU 
referred to above, except when quoting the Italian rules verbatim. 
(IV) The interest of the runner-up in the full disclosure of the successful tenderer’s 
technical bid 
12 In order for the question to be relevant, the Panel deems that Colombrita has an 
interest in accessing Nidec’s technical bid in its entirety. 
The fact that the contracting authority has justified … the reasons for awarding the 
score to Nidec’s technical bid is not sufficient for the purposes of the defence that 
Colombrita may put forward. Indeed, in order to determine whether the score 
given to a technical solution is legitimate, one must first know the technical 
solution. 
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Therefore, the refusal to grant full disclosure precludes Colombrita from 
challenging the legitimacy of the Commission’s assessment, also by reason of the 
burden of specificity of the grounds of complaint imposed by Italian procedural 
law (Article 40(1)(d) of the Italian Code of Civil Procedure). 
The fact that certain parts of Nidec’s technical bid were disclosed and that 
Colombrita did not challenge the award in the parts of the technical bid that had 
already been disclosed does not negate Colombrita’s interest in full disclosure, 
since the parts of the technical bid that illustrate the specifics of the winning 
project have not yet been disclosed. 
The Plenary Assembly of the Council of State has also held that, in order to assess 
an interest in accessing tender documents as part of the right of defence, that 
instrumentality link must be assessed ex ante and in the abstract … [national case-
law]. 
(V) The potential impact of full access on the protection of trade secrets and the 
Italian legal framework: absolute prevalence of the right of defence over the 
protection of trade secrets and consistency of that rule with the Italian 
Constitution 
13 Turning to the question, the Panel observes that while, on the basis of an advance 
assessment, it must be held that there is ex ante a necessary instrumental link 
between access and Colombrita’s defence in court, the production of the secret 
documents ex post could prove to be useless for the purposes of Colombrita’s 
exercise of its rights of defence and, at the same time, harmful for the protection 
of Nidec’s trade secrets. Thus, access could encourage imitations aimed at stealing 
trade secrets, without any actual interest in challenging the tender decisions. 
The rules of Italian administrative proceedings do not prevent this danger, since 
an administrative court must respect the principle of adversarial debate, which 
requires it to rule on the basis of documents disclosed to the parties and on 
objections raised by the parties. Therefore, this court, even though it has seen the 
technical bid in its entirety in camera, cannot assess of its own motion the 
lawfulness of the tender documents, nor can it consider, once it has seen the 
technical bid, that it is irrelevant to the party’s defence, because that would imply 
the court taking on the party’s role, which is inadmissible. 
In such a situation, Italian national law requires a technical tender to be disclosed 
in its entirety, as inferred from Article 53 of Legislative Decree No. 50/2016, 
applicable to the special sectors by reason of … Article 114(1) of Legislative 
Decree No. 50/2016. Article 53 of Legislative Decree No 50/2016 contains, in so 
far as is relevant in the present case, a general provision excluding access in the 
presence of (substantiated and proven) ‘technical or trade secrets’. Nevertheless, 
in the case of ‘defensive access’ (that is, access ‘for the purposes of defence in 
legal proceedings’), the latter prevails, to the detriment of the protection of 
technical or trade secrets under Article 53(6) of Legislative Decree No. 50/2016 
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… [national case-law], which is applicable ratione temporis. Article 35(5) of 
Legislative Decree No 36/2023 (not applicable to the present dispute ratione 
temporis), currently in force, which establishes the prevalence of defensive access 
‘if necessary for the purposes of the defence in court’ … [national case-law], is 
not dissimilar. For the sake of providing the Court with full information on the 
Italian legal framework, … as from 1 January 2024, Article 36 of Legislative 
Decree No 36/2023, which is not applicable to the dispute at hand ratione 
temporis…, regulates special accelerated court proceedings on access to tender 
documents; that article is applicable also where the redacting or non-disclosure of 
the parts of the tender containing trade secrets is at issue and … not altering the … 
[details on law not applicable ratione temporis] rule of the Italian law’s marked 
favour for defensive access to the detriment of the protection of trade secrets. 
According to the national court, in fact, the prohibition on disclosure of those 
secrets ‘does not apply where the other party demonstrates that disclosure of the 
documents is for the purpose of legal defence’ … [national case-law], provided 
that the applicant for access has satisfied the strict burden of proof of the 
‘necessary instrumentality link’ between disclosure of the document covered by 
trade secrets and the defence in court … [national case-law]. 
Neither Article 53(6) of Legislative Decree No 50/2016, nor the national case-law 
applying it, therefore, balances the protection of trade secrets against the right to 
judicial protection, once both are proven. 
Indeed, a request for submitting the full bid to the court for inspection in camera 
(which was ordered in this case and will be discussed below regarding the 
relevance attributed to it by the Court of Justice) is rarely made by a national 
court, because, since the defensive requirement (if proven) must, in any event, 
prevail, it is not relevant to ascertain whether there are any trade secrets. 
The rule contained in Article 53(6) of Legislative Decree No 50/2016 is consistent 
with the Italian Constitution, which provides for a hierarchy among the multiple 
rights it protects, in favour of the prevalence of inviolable human rights … 
[national case-law]. Therefore, according to the Italian Constitution, protection of 
freedom of economic initiative is subject to the condition that other values are not 
compromised (Article 42 of the Constitution), including the inviolable human 
rights referred to in Article 2 of the Constitution, which include the right to 
judicial protection (Article 24 of the Constitution). 
It follows that ordinary laws dealing with a potential conflict between the right to 
judicial protection and the protection of business undoubtedly give precedence to 
the former over the protection of trade secrets, without providing for any kind of 
balancing exercise. Not only does Article 53(6) of Legislative Decree No 50/2016 
set this out, but so does Article 24(6)(d) and (7) of Law No 241/1990, [which], … 
although not directly relevant in the present case, has systemic value because it 
dictates the general rules on administrative procedure. 
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(VI) The different balancing exercise between the right of defence and the 
protection of trade secrets under [EU] law 
14 The Panel doubts that the rules contained in Article 53(6) of Legislative Decree 
No 50/2016 constitute a precise transposition of European law. 
Article 39(1) of Directive 2014/25/EU (the content of which is almost analogous, 
in so far as is relevant in the present case, to Article 28 of Directive 2014/23/EU 
and Article 21 of Directive 2014/24/EU), lays down the general rule that the 
contracting entity ‘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’, providing for certain exceptions, pertaining to what 
is otherwise provided for by EU legislation (Articles 70 and 75 of Directive 
2014/25/EU; Articles 32 and 40 of Directive 2014/23/EU; Articles 50 and 55 of 
Directive 2014/24/EU) and national legislation (see below). Article 39(2) of 
Directive 2014/25/EU provides that contracting entities may impose on economic 
operators requirements aimed at protecting the confidential nature of information 
which the contracting entities make available throughout the procurement 
procedure. The aforementioned provisions are interpreted by the Court of Justice, 
with reference to Article 21 of Directive 2014/24/EU, confirming the need not to 
disclose trade secrets (CJEU, judgment of the Grand Chamber, 7 September 2021, 
C-927/19, paragraph 101; ‘judgment of the Grand Chamber’) and emphasising 
that economic operators, given the ‘relationship of trust’ linking them to 
contracting authorities, ‘must be able to communicate any relevant information to 
the contracting authorities’, ‘without fear’ that it will be disclosed to third parties 
(paragraph 115). Thus, contracting authorities have the power to decide not to 
disclose certain information if disclosure ‘would be contrary to the public 
interest,’ ‘would harm the legitimate commercial interests of a particular 
economic operator’ or ‘might prejudice fair competition’ (paragraph 114). 
The contracting authority, under Articles 21, 50 and 55 of Directive 2014/24/EU, 
‘must, in principle, not disclose’ information that is covered by trade secrets. The 
expression ‘in principle’ emphasises the need to balance trade secret protection 
against other values, such as the right of defence. The Court of Justice, while 
applying the general rule prohibiting disclosure of trade secrets, has indeed 
identified ways of weighing it up against the interest in judicial protection. It 
states that the principle of the protection of trade secrets ‘must be observed in such 
a way as to reconcile it with the requirements of effective legal protection and the 
rights of defence of the parties to the dispute’ (judgment of the Grand Chamber, 
paragraph 121, and judgment of the Third Chamber, 14 February 2008, C-450/06, 
paragraph 52) and the general principle of EU law relating to good administration 
(judgment of the Grand Chamber, paragraph 122). 
The balancing exercise is ensured by the Court of Justice: 
- by allowing the court to access confidential information (CJEU, judgment of the 
Third Chamber, 14 February 2008, C-450/06, paragraph 53); 
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- by reserving to the Member State discretion as to the identification of the 
appropriate means to ‘to ensure that neither the effectiveness of Directive 89/665 
nor the rights conferred on individuals by EU law are undermined’ (judgment of 
the Grand Chamber, paragraph 128); 
- by imposing on the contracting authority an obligation to state reasons, both as 
to the reason for refusing access and the reason for selecting the partially redacted 
bid, thus enabling the parties to ‘decide in full knowledge of the circumstances’ 
(judgment of the Grand Chamber, paragraphs 120, 122 and 123). 
As regards procedural matters, the Court of Justice has held that the adversarial 
principle, while constituting a measure of the fairness of the proceedings, ‘does 
not mean that the parties are entitled to unlimited and absolute access’, so that it 
can be ‘weighed against other rights and interests’ (judgment of the Grand 
Chamber, paragraphs 131 and 129). 
The consequence is that the court must be able to decide that certain information 
‘should not be communicated to the parties or their lawyers’ and, if it ‘considers 
that the contracting authority decided correctly and with sufficient reasons that 
the requested information could not be disclosed …, having regard to that 
contracting authority’s obligations in respect of the principle of effective judicial 
protection …, the conduct of that contracting authority in that regard cannot be 
criticised on the ground that it was excessively protective of the interests of the 
economic operator’ (judgment of the Grand Chamber, paragraphs 133 and 134). 
Thus, the Court of Justice seems to give general prevalence to the rule of the 
prohibition of disclosure of trade secrets, albeit understood as a non-absolute rule, 
providing for ways of mitigating it by means of strict obligations to state reasons 
and disclosure of the information covered by trade secrets to the court, in addition 
to the procedural methods identified by the Member State. 
15 In this context, Article 39(1) of Directive 2014/25/EU (similarly to Article 28 of 
Directive 2014/23/EU and Article 21 of Directive 2014/24/EU) is without 
prejudice to a different and express provision of national or [European Union law] 
(in the event that ‘it is otherwise provided … in the national law to which the 
contracting entity is subject, in particular legislation concerning access to 
information’). 
(VII) The potential conflict between national and [EU] law 
16 The doubt underlying the question referred for a preliminary ruling relates to the 
interpretation of Article 39 of Directive 2014/25/EU, in relation to the general rule 
that disclosure of trade secrets is prohibited, established in Article 39, and 
concerns the scope of the derogation referred to in the provision. The question is 
whether such a provision allows a national legislature to provide that defensive 
access always prevails over trade secrets, or whether it permits derogation from 
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the prohibition on disclosure of trade secrets only by means of balancing 
arrangements that also take trade secrets into account. 
The doubt stems from the wording of Article 39 of Directive 2014/25/EU, which 
does not contain any express limitations, although it is part of a context that 
suggests that it is not permissible, failing a suitable balancing exercise, to let 
defensive access prevail, to the detriment of the protection of trade secrets. 
17 The Panel sees grounds for a referral, as there is no acte clair in this respect and 
the Court of Justice has not specifically ruled on the point. 
For the purposes of relevance, in addition to recalling what is set out in paragraph 
12, the Panel observes that if Article 53(6) of Legislative Decree No. 50/2016 in 
its current wording were to be applied, it would certainly be necessary to order 
access to the technical bid in its entirety. If, on the other hand, such a national 
provision is not consistent with [EU] law, the Panel could strike a balance 
between the right of defence and the protection of trade secrets. 
(VIII) Arguments of the national court in support of the question 
18 First of all, the Panel makes a few remarks on the relevance of the protection of 
trade secrets with respect to competition rules and the purpose thereof: 
- investment in intellectual capital is a vital competitiveness and innovativeness 
factor for companies in the market, meaning that it is important to preserve the 
return on their investments; 
- the ‘valuable know-how and business information, that is undisclosed and 
intended to remain confidential, is referred to as a trade secret’ and must be 
protected (recital 1, Directive 2016/943/EU); 
- any disclosure is likely to produce distorting effects on competition as it 
penalises the company that has invested in innovation (by not ensuring it an 
adequate return on the investment made) and benefits the companies that do not 
invest and that can profit from the investment of others, with consequent effects 
on the entire relevant market; 
- confidentiality therefore constitutes a tool of ‘business competitiveness’ (recital 2 
of Directive 2016/943/EU). 
It is clear from the directives regulating the public procurement and concessions 
sector – 2014/23/EU, 2014/24/EU and 2014/25/EU – transposed by Legislative 
Decree No 50/2016 (and subsequently by Legislative Decree No 36/2023) that: 
- their main objective is to open up all Member States to undistorted competition 
(CJEU, judgment of the Tenth Chamber, 7 December 2023, C-441/22). 
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- in order to achieve that objective, it is necessary that the authorities ‘do not 
release information’ relating to invitations to tender, ‘which could be used to 
distort competition’ (judgment of the Grand Chamber, paragraph 115) as the 
effectiveness of those invitations ‘would be severely undermined’ if, in the event 
of an appeal, all the information on the tender ‘had to be made unreservedly 
available to the appellant’ or the interveners (CJEU, judgment of the Third 
Chamber, 14 February 2008, C-450/06, paragraph 39). 
Thus, the disclosure of trade secrets risks undermining the aim of opening up to 
competition pursued by the procurement directives and the effectiveness of those 
directives. The relationship between the protection of trade secrets and the 
implementation of a competitive market is even more apparent if one considers 
the contracting authority as ‘arbiter’ of the public procurement procedure 
(Opinion of the Advocate General delivered on 15 April 2021 in Case C-927/19, 
point 42), classified as market competition … [national case-law], which fulfils 
the same function that, in sectors open to the market, competition between 
economic operators performs, namely that of selecting the best product or service. 
However, in the market, companies are guaranteed extensive protection of trade 
secrets (Article 1 of Directive 2016/943/EU). 
With respect to the special sectors, which are the subject matter of Directive 
2014/25/EU and of the dispute at hand, the aim of opening up tenders to 
competition is even more apparent, to the extent that it is aimed at ‘a real opening 
up of the market’ (recital 19), so that the directive should not be applied in the 
Member State in which the activity ‘is directly exposed to competition on markets 
to which access is not limited’ (recital 43). 
19 The Panel therefore doubts that the safeguard clause of what is ‘otherwise’ 
provided for by national legislation, contained in Article 39 of Directive 
2014/25/EU, allows the national legislature to provide that defensive access 
always prevails over trade secrets, without the contracting authorities and the 
courts being allowed to put in place balancing mechanisms that preserve the 
competitive purposes of public tendering procedures. Rather, it seems consistent 
with the objectives of Directive 2014/25/EU to recognise that contracting 
authorities and national courts have discretion, which prevents ‘freezing’ the 
system by laying down an absolute and mandatory rule, be it the absolute 
prevalence of the right of defence or the absolute prohibition on disclosure of 
trade secrets. 
The balancing of interests outlined by the Court of Justice is all the more 
significant if one considers that the European case-law, not unlike what this Court 
is required to do, is called upon to consider not only Article 1(1) and (3) of 
Directive 89/665/EC, which enshrines the right to an effective remedy in 
procurement matters, but also the more general right to judicial protection and the 
principle of effectiveness of judicial protection, which have the rank of inviolable 
human rights. 
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In the opinion of the Panel, EU law offers another perspective on the framework 
of those economic freedoms. Indeed, Article 3(3) TEU recognises the social 
nature of the internal market and European competition policy (with the aim of 
sustainable development, also based on ‘a social market economy’ and a high 
level of protection ‘of the environment’). To that effect, protecting market 
principles also means creating the conditions for protecting human rights, with the 
result that the latter are not opposed to the former, but are an extension of it. In the 
same vein, the Court of Justice has stated that: 
- the protection of trade secrets constitutes a general principle of the European 
Union (judgment of the Grand Chamber, paragraph 132); 
- those fundamental rights include the ‘the right to respect for private life and 
communications, enshrined in Article 7 of the Charter, and the right to the 
protection of trade secrets’ (judgment of the Grand Chamber, paragraph 132), as 
also reaffirmed by Article 7 of the Nice Charter (CJEU, judgment of the Third 
Chamber, 14 February 2008, C-450/06, paragraph 48). Thus, the mitigation of 
defensive access is based on a concept of the internal market not only as a 
(competitive) space for the exercise of economic freedoms, but also as a place for 
the pursuit of social objectives, and the classification of the protection of trade 
secrets as a right to [private] life and communications and a general principle of 
EU law. Therefore, the weighing-up of defensive access and protection of trade 
secrets in EU law is not only about the relationship between human rights 
(defensive access) and economic freedom (protection of trade secrets), as non-
economic profiles relating to the protection of trade secrets are also highlighted. 
20 In conclusion, Article 39 of Directive 2014/25/EU, within the framework of the 
[EU law] context described above, in which the conflict between the right to 
judicial protection and the right to the protection of trade secrets is resolved by 
means of a balancing exercise that does not necessarily give precedence to the 
former right, justifies, in the view of the Panel, doubt as to the compliance of the 
rule laid down by Article 53(6) of Legislative Decree No 50/2016, which gives 
prevalence to defensive access, without seeking any kind of balancing exercise 
that takes into account the reasons underlying the protection of trade secrets. 
IX) The question 
21 In view of all the above, the Panel asks the Court of Justice of the European Union 
to give a ruling, pursuant to Article 267 TFEU, on the following question referred 
for a preliminary ruling:  
‘Does Article 39 of Directive 2014/25/EU – from which one infers, as from 
Article 28 of Directive 2014/23/EU and Article 21 of Directive 2014/24/EU, that 
the conflict between the right to judicial protection and the right to the protection 
of trade secrets is resolved by means of a balancing exercise which does not 
necessarily give precedence to the first right – preclude the national rules 
contained in Article 53(6) of Legislative Decree No 50/2016, which provides for 
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the production of documents containing technical or trade secrets in the case of 
access aimed at providing judicial protection, without providing for balancing 
arrangements which take into account the requirements of protecting technical or 
trade secrets?’ 
22 … [provisions for the secretariat]. 
23 … [suspension of national proceedings]. 
FOR THESE REASONS 
The Council of State sitting as a court (Fifth Chamber) … refers to the Court of 
Justice of the European Union the question referred for a preliminary ruling in 
paragraph 21 and … stays the proceedings. 
… [provisions for the secretariat]. 
… Rome … 26 September 2024 …