Trade secrets and access to documents in public tenders: the United Sections' decision

1. The facts

   The issue arose from a tender procedure in which an economic operator, ranked in a non-winning position, filed a request for access to documents in order to view the winning bidder's technical offer. The winning company strongly opposed the full disclosure of the documentation, pleading the presence of technical and commercial secrets regarding proprietary technological solutions. The dispute reached the Council of State and was subsequently brought before the Supreme Court on jurisdictional grounds. The appellants argued that the administrative judge had applied an excessively restrictive criterion when examining the access request, ultimately compromising the right of defense guaranteed by the Constitution. The United Sections thus ruled on the scope of the administrative judge's powers in balancing two rights of equal rank: the right to judicial protection and the protection of industrial property and know-how. The final decision clarified that verifying the existence of secrets belongs to the trial judge, who must nevertheless follow precise statutory criteria to avoid any arbitrariness.

2. 

   The rules in play

   The regulatory framework lies in Legislative Decree No. 36/2023, the so-called new Public Contracts Code. Article 35 establishes the general principle of transparency, requiring contracting authorities to grant participants access to tender documents. Article 36 specifically regulates exceptions relating to technical or commercial secrets, providing that access to the bid may be denied if the operator demonstrates with specific reasons that such information constitutes protected industrial know-how. Furthermore, Articles 98 and 99 of Legislative Decree No. 30/2005 (Industrial Property Code) define trade secrets, requiring information to be confidential, to hold economic value as such, and to be subject to reasonable protection measures. The combined reading of these provisions shapes a system where transparency is not absolute, but must be balanced against the need to prevent industrial espionage among competitors. Consequently, access is permitted only if the applicant proves the strict indispensability of knowing those secrets to defend their interests in court, a burden that goes far beyond mere document relevance.

3. What the case law says

   The approach adopted by the United Sections reinforces a strict interpretation regarding access to third-party know-how. Case law has clarified that there is no predefined hierarchy between the right of defense and trade secrets: the court must perform a case-by-case balancing test. It has been reaffirmed that the burden of proof on the applicant is heightened: it is not enough to plead the right to judicial defense in general terms, but it must be shown that without that specific information, effective judicial protection would be impossible. Furthermore, the Supreme Court specified that assessing the existence of a secret and its indispensability is a factual evaluation reserved for the administrative judge. The Supreme Court cannot review the merits of such a finding unless there is a complete refusal to examine the claim, which would constitute a jurisdictional defect. The core principle remains the specificity of grounds: the challenger must already possess serious circumstantial evidence of the alleged illegality before demanding access to a competitor's confidential information.

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8. What it teaches professionals

   The decision offers fundamental practical takeaways for attorneys practicing in public procurement.

   1. When submitting a bid, it is critical to identify and specifically justify which parts of the tender document contain trade secrets, avoiding generic boilerplate statements.
   2. In drafting an appeal and access application, counsel must establish a direct causal link between the confidential document and proof of the alleged defect.
   3. Exploratory requests (so-called fishing expeditions) must be avoided, as case law penalizes the instrumental use of access aimed solely at inspecting a competitor's offer in search of previously unidentified errors.

References: D.Lgs. n. 36/2023D.Lgs. n. 30/2005Art. 111 CostituzioneArt. 24 Costituzione

Editorial oversight: Avv. Federico Papa·ICAMUpdated 11 October 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction