Trade Secrets and access to documents in public tenders under Italian case law of the Council of State

In recent months, administrative Italian case law has clarified a fundamental principle for companies participating in public tenders: transparency is the rule, while the protection of trade secrets is the exception. However, the latter cannot be invoked through vague or generic statements. Contracting authorities and companies must demonstrate and document, on a case-by-case basis, the existence of information that is genuinely confidential.

The Council of State (see rulings no. 8257/2024 and 5547/2025) has reiterated that it is not sufficient to simply claim that a part of the offer “contains know-how.” Rather: There must be a specifically identified piece of information, capable of economic exploitation, that provides a competitive advantage to the operator in the relevant market and that demonstrably possesses objective and verifiable characteristics of confidentiality. In the absence of such demonstrable characteristics of objective confidentiality, in balancing the conflicting interests related to access to documents, the overriding principle is the full transparency of public procurement procedures, which prevails over the know-how of individual competitors (see, among others, Council of State, Section V, 12 November 2020, no. 6523).

Similarly, the Regional Administrative Courts (TARs) have repeatedly affirmed that objections to disclosure must be supported by evidence—such as studies, technical documents, and precise descriptions—and must correspond to the criteria set out in the relevant articles of the Industrial Property Code, not by generic claims that undermine the principle of transparency in public procedures. As stated: It is with reference to the specific characteristics outlined in Article 98 of the Italian Industrial Property Code that a ‘substantiated and evidenced’ claim of the existence of a trade secret must be made. An operator cannot simply make an unproven and general claim aimed at including certain information in the company’s proprietary assets or in the uniqueness of its offer (cf. TAR Piemonte Region, Section II, no. 865/2024; TAR Lombardia Region, Milan, Section I, no. 145/2022; TAR Lazio Region, Section I, 11 August 2021, no. 9363). Furthermore, it has been observed that vague and unsubstantiated claims of trade or industrial secrecy—which by law must be justified and proven—are hardly applicable to sectors such as catering, which are characterized by standardized supply chains and commercial contracts (cf. TAR Toscana Region, Section IV, no. 1035/2024).”

These developments have clear implications for businesses, which are now expected to take concrete actions both before participating in tenders and during the course of related procedures.

First and foremost, improvisation is no longer acceptable: as shown, a generic reference to “know-how” does not hold up in court, and contracting authorities will increasingly apply strict scrutiny to requests for access and objections to disclosure.

Therefore, it is necessary to prepare in advance technical dossiers that clearly demonstrate the actual confidentiality of the information, its economic potential, and the protective measures adopted to safeguard it. Without these requirements, the protection granted under Article 98 of the Industrial Property Code will not apply to the confidential business information in question.

Additionally, the parts of the offer that are intended to be confidential must be clearly identified, and—where appropriate—accompanied by technical memos, expert opinions, and signed certifications, thereby strengthening the basis for any claims of confidentiality.

Conversely, to counter the misuse of the “trade secret” label as a tactic to prevent access to documents, it is essential to request a reasoned reassessment from the contracting authority of any objection to disclosure. If necessary, companies should consider legal action, supported by technical experts, to challenge the classification of documents as protectable trade secrets under the Industrial Property Code.

Recent rulings support a strict scrutiny of exceptions to transparency, which means that invoking industrial secrecy in tender procedures can no longer be used as an automatic shield to block access requests.

Companies are therefore advised to invest in proper documentation and technical support to appropriately justify their requests and objections. Those who continue to use “know-how” as a generic shield risk having their claims dismissed in court, with potentially serious reputational consequences as well.