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guard public financial interests of a foreign state.
However, the ombudsman requires that the facts of
the specific case confirm that publicity may plausibly
prevent bids from being made in the future and
that this will have a serious adverse affect on public
financial interests; it cannot be used as a general
argument.
4. Public control
In certain cases it is possible to refuse access to
records if that would hamper or seriously affect the
enforcement and control efforts undertaken by
public authorities, Article 13(1)(4) of the Access to
Public Administration Files Act and Article
15(1)(4) of the Public Administration Act. These
provisions are probably applicable not only in
respect of enforcement and control exercised by
Danish authorities in Denmark but also where by
foreign authorities abroad. However, the exemption
only applies if access to a record would significantly
damage public control efforts.
5. The security or defence of the State
Under Article 13(1)(1) of the Access to Public
Administration Files Act and Article 15(1)(1) of
the Public Administration Act access may be
refused in relation to information if access to it
would affect the security or the defence of the State
adversely.
5. Conclusions and suggestions
For the time being the Danish Competition
Authority has no explicit right to disclose confidential
information to another Member State.
But as it is mentioned in Section 3 it is accepted
that Denmark can take on an obligation to
exchange confidential information with foreign
countries as an element of a more informal cooperation
as the Pilot Project on the assumption
that such information is kept confidential in the
receiving country.
As to the possibility of keeping received information
confidential the only exemption from the
right to access under the Danish law that could
have been applied to the Pilot Project as a whole is
based on foreign policy interests. In practice, any
request for access to material given to the Danish
Competition Authority under the Pilot Project
could have been refused if in all specific cases the
Pilot Project implied an obligation under international
law to keep these documents confidential. At
present, however, the Guidelines does not seem to
ensure that such an obligation applies to or is
undertaken in each specific case.
A clarification and possibly a revision of the
Guidelines would be helpful from the point of view
of Danish law. The general provision on confidentiality,
in particular the phrase ”shall not be disclosed
as such to other participants”, might benefit
from a careful revision, and the terms on which
information is exchanged in specific cases should
perhaps be worked out in greater detail.
If - as long as a clarification of the Guidelines has
not been made - in a specific case confidentiality
has been made an explicit condition for receiving
the information in question it can be assumed that
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