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Competition Authority regarding the call for tenders,
and the Danish Competition Authority
refused to grant the request as regards the minutes
of the meeting held in London.
In the light of this case it seems opportune to consider,
firstly, to what extent it is possible for a
Member State to disclose confidential information
to another Member State within the framework of
the Pilot Project and, secondly, whether it is possible
under the current guidelines to keep such information
exchanged between the authorities in
different Member States confidential.
The directives on public procurement do not
appear to contain definite provisions on confidentiality
that are of importance in the present context.
In general, questions of disclosure and confidentiality
– and also access to the files and records of the
public administration – are questions governed by
national law in the various Member States.
The following sections outline how these issues are
dealt with in Danish law.
3. Disclosure of confidential information
according to Danish law.
According to Danish law, the public administration
shall keep information confidential if necessary in
order to safeguard important public or private
interests. These interests are in the main the same
as those justifying exemptions from the general
access to the files and records of the public administration.
For more details see under section 4.
In certain areas of Danish law public authorities
are specifically authorized to disclose confidential
information to public authorities in other countries.
For instance within financial control such
rights are given on the condition that the disclosed
information is kept confidential in the receiving
country.
The Danish Competition Authority has – at least
for the time being - not been given an explicit
authorization to disclose confidential information
to another Member State.
In the absence of a specific authorization under
Danish law, a public authority is allowed to
exchange confidential information with authorities
in other countries if required by a treaty obligation
undertaken by Denmark. Besides, it follows
from general principles of administrative law that
Danish authorities are in many respects – for
instance as an element of a more informal co-operation
– allowed to disclose confidential information
to other authorities, including the authorities
in other countries. The scope of this unwritten
authorization is defined by various considerations,
including the purpose of disclosing the information,
the conditions imposed on the receiving
authorities, the nature of the information and the
risk of abuse.
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