The present monograph develops in detail the interesting topic of “confidential information” in the context of public tenders, starting from the two fundamental general principles that are antithetical to confidentiality: the principle of transparency and the principle of free and undistorted competition. The EU legislation (Directives 18/2004 and 2014/24), as transposed into the internal legal order, is analyzed, with a focus on the functioning of the registers. The case law of the CJEU and the national courts as well as the AEPP and the Legal Council is then developed. The study concludes with the development of trade secrecy, both on the basis of Directive 2016/943, as well as on the basis of Law no. 4605/2019. The above content is enriched with critical conclusions with full documentation.
It is also interesting to note the author’s personal views that, in line with the principle of transparency, contracting authorities disclose an excessive amount of confidential information of tenderers, thus acting as a deterrent to their participation in public tenders. It is argued that the conflict between the principle of transparency and the confidentiality of information must be resolved on the basis of an in concreto balancing test. Finally, for reasons of legal certainty and in order to preserve the uniformity of legal regimes between Member States, the author advocates an exhaustive regulation of the permissibility of disclosure of confidential information under (secondary) EU law.
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