Public Procedures for E-Scooter Sharing

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Regional Administrative Court of Veneto, Section I, 8 February 2022, no. 240

With the above decision, the Regional Administrative Court of Veneto ruled on the right to access the documents related to a public procedure for E-scooter sharing service.

In the present case, the plaintiff (Helbiz, a company operating in the E- mobility field) challenged the deny to access to documents concerning the procedure called by the Municipality of Verona aimed at selecting the operators interested in the provision of electric scooters activity.

Specifically, the company alleged a breach of Articles 22 and 24 of Law No. 241 of 7 August 1990 as well as Article 53 of Code of Public Contracts, in consideration of the fact that the Municipality of Verona edited the requested documents redacting them in the parts allegedly concerning trade secrets and know-how.

On the other hand, the defendant Municipality and the awarded Companies contested the application of the Public Contracts Code to the above-mentioned procedure.

The Regional Administrative Court of Veneto, preliminarily stated that, as the access to administrative documents provided by Article 22 of Law No. 241/90 is a general principle encompassing the whole administrative activities, it must be applied every time there is a legally relevant interest.

Nevertheless, in this subject article 53 of Code of Public Contracts establishes stricter criteria, allowing access to information containing technical or trade secrets only when the documents required by the plaintiff are essential to the extent of the proceeding.

Therefore, the Court specified that “the provision cannot be applied in a restrictive meaning within the limits and constraints of the main public procurement procedures, but it has an expansive force that makes it enforceable to any public procurement in which the balancing between the right to access the documents and the right to privacy have the same grounds as it is implicit within public procedures”, like in the present case.

More specifically, “the procedure starts from the act whereby the Municipality has reduced the number of the operators admitted to scooter sharing system, and has to be considered as a public competitive procedure conducted on the basis of a call for tender, that provides for the appointment of a selection board requested to assess and score the offers on the basis of predetermined criteria, in order to select, among them, the better ones”.

In conclusion, the Regional Administrative Court of Veneto stated that, even in presence of a procedure that is not governed by the legislation on public contracts pursuant to Legislative Decree no. 50/2016, “the special and specific derogatory provisions in terms of limitation and exclusion of the request of access to documents are still applicable, in view of the special confidentiality requirements that arise and become relevant under the above-mentioned Article 53 of Code of Public Contracts“.

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