Rejection of freedom of information appeal: equality of arms in pending annulment proceedings justifies refusal to disclose competitor's tender annexes — Project FAST
D.D.G.'s appeal against the refusal to disclose annexes from competitor D.G.'s tender is rejected — the Appeals Body could refuse disclosure under article II.35, 4°, of the Administrative Decree (fair trial) because the documents would be used in pending annulment proceedings before the Council of State, and the Appeals Body could factor in that D.D.G. had already filed an annulment action and requested the lifting of confidentiality in those proceedings.
What happened?
In connection with the FAST public procurement (motorway incident management in East Flanders), D.D.G. submitted a freedom of information request to the Agency for Roads and Traffic (AWV) for documents from the selected tenderer D.G.'s offer: annexes on personnel and vehicles (technical capacity selection criteria), inspection certificates, and staff competency certificates. D.D.G. intended to use these documents to support its pending annulment action against the award decision (case resulting in judgment no. 260.322). AWV largely refused based on article II.35, 3° (confidential commercial information). The Appeals Body declared the appeal unfounded but relied on a different ground: article II.35, 4° (fair trial and equality of arms). The Council of State examined four sub-pleas. First: no violation of the right to be heard — the procedure before the Appeals Body is an organized administrative appeal without contradictory debate, and D.D.G. had preemptively argued against article II.35, 4° in its appeal. Second: the balancing of interests was concrete — the Appeals Body could consider that D.D.G. had already filed an annulment action without the documents and had requested lifting of confidentiality in those proceedings. The Council doubted whether the first element sufficed but found the reference to the Council of State's own upcoming assessment not unreasonable, given the special confidentiality regime in public procurement. Third: factual basis missing — D.D.G. misread the contested decision. Fourth: AWV did not possess the personnel certificates, and the appeal procedure only concerns existing documents, not whether the authority must request documents from third parties. The second plea was inadmissible. The appeal was rejected.
Why does this matter?
This ruling clarifies the relationship between freedom of information and fair trial protection in public procurement disputes. The fair trial exception (article II.35, 4°) can justify refusing disclosure of competitor tender documents when they are specifically intended for use in pending annulment proceedings. The Appeals Body may factor in that the applicant has already requested lifting of confidentiality in those proceedings and that the Council of State will rule on that request. The ruling also confirms that the Appeals Body may substitute grounds through devolutive effect without hearing the applicant on the new ground.
The lesson
As a losing tenderer seeking competitor documents via freedom of information: be aware that the fair trial exception may apply when annulment proceedings are pending. The Council of State has its own instruments for assessing confidentiality of tender documents — that is the more appropriate forum. As contracting authority: when a freedom of information request relates to tender documents relevant to pending proceedings, timely invoke article II.35, 4° and concretely motivate how disclosure could harm your position.
Ask yourself
As tenderer: am I trying to obtain documents via freedom of information that I actually need for pending annulment proceedings? Have I requested lifting of confidentiality in those proceedings? As contracting authority: did I timely and concretely invoke the fair trial exception? Did I provide concrete elements showing how disclosure could harm my position in the proceedings?
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 →