The confidentiality of documents held by the Council of State

Companies can no longer rely on documents (containing information about their prices) that they considered to be confidential remaining as such under litigation before the Council of State.

On 15 May 2015, the Council of State rendered a noteworthy judgment lifting the confidentiality of certain documents. The judgment puts at serious risk the existing regime whereby parties could generally rely on all documents containing their prices remaining confidential. This confidentiality regime was of particular significance in the context of abnormal prices, where tenderers and contracting authorities were reluctant to communicate their (rather high or low) prices as well as the rationale behind these prices. Disclosing their prices could harm their business interests, especially their competitiveness.

The Council of State refines this argument, stating that the fact that companies themselves consider the prices as important for future tenders is not a compelling reason to withdraw this information from open debate. Moreover, the Council adds that the party in this case did not prove that the works were of an exceptional nature, nor that its interests could be harmed by the disclosure of its prices.

The Council decided that all documents in the administrative file (including summary of quantities, price calculations, price justifications and cost analyses) should be made accessible to the demanding party and that confidentiality should therefore be waived. The Council further stated that this is even more justifiable in the context of abnormal prices, where the communication of prices is essential.

The Council of State is applying principles developed in legal doctrine, allowing us to determine when a document must be classified as confidential. For example, a party that wants certain documents to be confidential must provide thorough justification for confidentiality to prevail (namely, how disclosure of prices would harm competition or business secrets). The sole consideration, although this is also necessary, that a piece is absolutely confidential is no longer sufficient.