29.3.2008

Official Journal of the European Union

C 79/6

(Case C-450/06)

(Public procurement - Review - Directive 89/665/EEC - Effective review - Meaning - Balance between the adversarial principle and the right to observance of business secrets - Protection, by the body responsible for the review, of the confidentiality of information provided by economic operators)

(2008/C 79/09)

Language of the case: French

Referring court

Parties to the main proceedings

Applicant: Varec SA

Defendant: Belgian State

Intervener: Diehl Remscheid GmbH & Co

Re:

Reference for a preliminary ruling — Conseil d'État (Belgium) — Interpretation of Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 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 (OJ 1989 L 395, p. 33), read with Article 15(2) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) and Articles 6 and 41(3) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Supply of military material — Balance between the principles that both parties be heard and that defence rights be complied with and the right to respect for business secrets and the protection of sensitive or confidential information.

Operative part of the judgment

Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 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 Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, read in conjunction with Article 15(2) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, 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. It is for that body 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.

(1) OJ C 326, 30.12.2006.