'Personal data' is no excuse for keeping internal advice from an unsuccessful bidder
The Council of State lifts confidentiality on the email exchange between the Chancellery and the Inspectorate of Finance in a procurement dispute over the 21 July national-day celebrations, because the contracting authority fails to identify any actual business secret — only personal data may be redacted.
What happened?
The Federal Public Service of the Prime Minister's Chancellery launched a simplified negotiated procedure with prior publication (cahier des charges 2023/028) for the organisation of the 21 July 2024 national-day festivities. The contract was a multi-year tender in tranches: one firm tranche (2024) and two conditional tranches (2025 and 2026), capped at 999,999 euros net per tranche. Shadow To Live srl, an event organiser, found the selection criteria significantly tightened compared to the 2023 edition: - Financial capacity: turnover of at least 2 million euros per year for three years (previously: cumulative over three years); - Technical capacity: a single reference of comparable services worth at least 500,000 euros incl. VAT (previously: 150,000 euros), with no third-party capacity allowed for the 'show' component. On 19 March 2024 Shadow To Live filed an extreme-urgency suspension against the approval of the cahier des charges. The hearing was scheduled for 8 April — but there was a procedural snag: the Belgian State had marked pieces 11 to 17 of the administrative file as confidential. Pieces 11 to 13 contained emails between the Chancellery and the Inspectorate of Finance and between the Chancellery and ASBL Association of Communication Companies (ACC) — the industry association consulted on the selection criteria. Pieces 14 to 17 concerned the bids (opened on 2 April 2024). Shadow To Live challenged the confidentiality of pieces 11 to 13 at the hearing. The State defended itself with two arguments: business secrets (article 26 of the law of 17 June 2013) and personal data of those involved in drafting the criteria. The Council dismantles both arguments: - 'The respondent does not identify — and the Council does not see, on reading pieces 11 to 13 — what business secrets would be at stake or compromised by disclosure.' - 'The personal identification data invoked admittedly fall outside the protection of article 26, but their disclosure is not necessary in this case to safeguard the applicant's procedural rights.' The debate is reopened. The State must file pieces 11 to 13, redacted of personal data, by Thursday 12 April at noon. Shadow To Live has until Monday 15 April to submit observations. The State has until Wednesday 17 April. Hearing rescheduled for 22 April 2024. Immediate execution of the ruling ordered.
Why does this matter?
In extreme-urgency proceedings, access to the full administrative file is often decisive — and contracting authorities like to hide internal advice (from the Inspectorate of Finance, industry associations, legal services) under a 'confidential' flag. This ruling confirms: only genuine business secrets fall under article 26 of the law of 17 June 2013. 'Personal data' is no licence to shield entire files — those are simply redacted.
The lesson
If the contracting authority marks bundles of documents as 'confidential' in a procurement dispute, ask explicitly at the hearing for confidentiality to be lifted on every piece that does not contain an actual business secret. Personal names or email addresses can be redacted, but the substance of internal advice — how the selection criteria were drafted, for instance — must be in your hands to build your case properly.
Ask yourself
Has the contracting authority marked pieces in your file as 'confidential' without explaining which specific business secret is contained? Then in your brief or at the hearing, request lifting with reference to article 26 of the law of 17 June 2013: the authority must show which specific secret would be compromised — generic 'personal data' arguments are not sufficient.
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →