“Automatic defensive access rights”: infringement proceedings against Italy

The new Public Procurement Code has had a significant impact on access to documents in public tenders, seeking to strike a balance between two competing interests:- full transparency of documents for economic operators;- protection of sensitive technical and commercial information.

Article 35 of Legislative Decree No. 36/2023 provides that contracting authorities must ensure digital access to the full set of tender documents, including bidders’ technical offers (paragraphs 2 and 3). However, technical proposals may be withheld where they qualify as technical or commercial secrets, provided this is duly justified by the bidder (paragraph 4).Conversely, paragraph 5 allows access to such confidential information where it is strictly necessary for the purposes of legal defence in relation to the procurement procedure (the so-called “automatic defensive access right”). The European Commission’s positionThe European Commission has launched infringement proceedings against Italy, arguing that granting automatic precedence to defensive access conflicts with Article 21 of Directive 2014/24/EU. This provision rules out national frameworks that allow unconditional access to technical or commercial secrets solely to ensure judicial protection (Order of 10 June 2025, Case C-686/2024, Court of Justice of the European Union).Accordingly, domestic legislation cannot establish an automatic priority for the effectiveness of judicial protection. Instead, it must ensure a proportionate balancing of the interests involved, failing which it risks breaching both the principle of proportionality and the effective protection of confidential information. Italian case law alignsMore recently, the Council of State, in judgment No. 10036/2025, clarified that defensive access to confidential information does not automatically override confidentiality concerns. Even where a request is made for defence purposes, public authorities are required to balance the right to judicial protection against the need to safeguard technical and commercial secrets. For further details:- Council of State, Judgment No. 10036/2025;- Article 35, Legislative Decree No. 36/2023;- Article 21 of Directive 2014/24/EU;·       Order of 10 June 2025, Case C-686/2024, Court of Justice of the European Union.