Protecting price confidentiality in pharma tenders

AIFA price‑confidentiality clauses set important limits on access to documents and disclosure in public procurement procedures, as clarified by the Emilia‑Romagna Administrative Court (TAR).

 

Introduction

With its recent judgment No. 1631, published on 22 December 2025, the Emilia-Romagna Administrative Court (TAR) examined an issue that has long been debated and remains unresolved: the limitations on the right of access to documents and, more generally, on the disclosure of information covered by confidentiality clauses included in negotiation agreements concluded between AIFA and the economic operator participating in a public procurement procedure.

The disclosure of this information concerns not only its release following a third party’s request for access but also, more broadly, the publication of tender documents on the procurement platform, in the ANAC database and on the website of the contracting authority.

 

The case before the TAR Emilia–Romagna (Bologna, Section I, Judgment No. 1631 of 22/12/2025)

The case originated from a tender procedure launched pursuant to Legislative Decree 36/2023 (Public Procurement Code) for the supply of medicinal products for 2026-2028 to meet the needs of the healthcare entities of the Emilia-Romagna Region.

The claimant, an economic operator, took part in the tender for a lot consisting of two sub-lots, concerning an “orphan” drug covered by a patent. The claimant was the only participant, since the product was “exclusive.” Along with its bid, the operator submitted an application requesting that the economic conditions agreed with the Italian Medicines Agency (AIFA) – and covered by a confidentiality clause in the agreements concluded with the Agency – be withheld from disclosure through both access to documents and publication of tender documents.

When notifying the award of the lot, the contracting authority also specified that access to the awardee’s bid would be granted under Article 36 of the Public Procurement Code, without any limitation, as it considered that no technical or commercial secrets were involved. This prompted the pharmaceutical company to lodge an appeal.

 

The contested issue

The TAR examined whether the confidential price discounts agreed between AIFA and the pharmaceutical company fall under the notion of “trade secrets,” which, under Article 35(4) of the Public Procurement Code, may justify the exclusion of the right of access and any form of disclosure in public procurement procedures, provided they exist and are adequately substantiated.

As the court noted, this is “a complex issue, not yet clearly defined by administrative case law.” According to the Judge, the complexity stems from the need to balance the confidentiality interests of pharmaceutical companies with the requirement for transparency and full accessibility in a pro‑competitive perspective, especially considering that the confidentiality clause concerns the price element.

 

The parties’ positions

According to the judgment, the pharmaceutical company challenged the contracting authority’s decision because the latter allegedly failed to consider that the agreement signed with AIFA for the drug offered in the tender included a confidentiality clause preventing the disclosure of confidential information to third parties.

The disclosure of such information, the company argued, would undermine the agreements with AIFA and harm its competitiveness. The claimant therefore requested that the Court establish the existence of technical or commercial secrets under Article 35 of the Public Procurement Code and order the contracting authority to obscure the economic conditions offered, the financial bid, and any elements from which the confidential discount could be inferred.

The contracting authority, on the other hand, argued that no “secret” existed because the medicinal product was covered by a patent and therefore had no competitors and posed no risk to competitiveness.

 

The TAR’s decision and key principles

The TAR acknowledged that disclosing to third parties confidential information covered by a confidentiality clause could harm the claimant, including in foreign markets, by affecting its bargaining power and commercial strategies.

To resolve the case, the judge reviewed previous (and limited) administrative case law concerning confidentiality clauses and analysed the concept of “trade secret.” This included confidential information that may:

• ensure a competitive advantage to a potential competitor; or
• create a competitive disadvantage for the holder of the information.

According to the TAR Bologna, confidential price discounts fall within the elements of the bid that may constitute reserved information of clear commercial and economic value. A confidentiality clause is an appropriate tool to limit disclosure of certain information to third parties.

However, the TAR recalled that any measure must comply with the principle of proportionality. Given the need to ensure transparency and publicity in public procurement, price obscuration must be considered an extrema ratio, as price is a central element in ensuring transparency.

The court carried out a detailed assessment to identify which elements could be legitimately obscured to avoid the direct or indirect identification of confidential discounts. It concluded that the claimant was entitled to have the content of the confidential agreement and the discount applied in the financial offer obscured, as well as any data that could indirectly reveal the confidential discounts (eg quantities of medicines offered, prices per sub‑lot, except for the overall price).

 

Practical implications

The judgment provides important practical guidance. For contracting authorities, the mere presence of a confidentiality clause isn't sufficient to justify price obscuration: they must assess, case by case, whether a true technical or commercial secret exists, supported by adequate evidence from the bidder, and adopt a solution that balances the competing interests involved.

For economic operators, it's not possible to automatically request price obscuration on the sole basis of an agreement with AIFA. Instead, operators must – through a specific declaration attached to the bid – clearly identify, document and justify which information is genuinely confidential and the concrete competitive harm that would result from disclosing it.