No annulment action after the suspension of the Waterloo scenography contract: the Council of State lifts the earlier suspension, but the Walloon Region pays the costs after its withdrawal
The Council of State had suspended, under extreme urgency, the award of the scenography of the Waterloo Memorial to the temporary association ‘La Belle Alliance’, but because Tempora then brought no annulment action, that suspension had to be lifted by law; as the Walloon Region had meanwhile withdrawn its decision, the costs were nonetheless placed on the Region.
What happened?
On 3 January 2014 Tempora sought, under extreme urgency, the suspension of the decision of the Walloon minister for Local Authorities, Urban Policy and Tourism to award the public contract for the scenography of the Waterloo Memorial — governed by special specifications no. MG/13/WAT/020/scéno and launched by the Commissioner-General for Tourism — and in particular to award lots 1 and 2 to the temporary association ‘La Belle Alliance’ and not to retain Tempora’s offer. By judgment no. 226.558 of 26 February 2014 the Council of State had admitted the intervention of La Belle Alliance — a grouping of the non-profit Europa 50 and the companies EO, Saga Films, Inytium, Sien, De Pinxi and Kaos Films — and suspended the execution of the contested decision. That judgment was notified to the parties by fax the same day. Thereafter the case unfolded differently from what an ordinary suspension suggests. Under article 17, § 3, fifth paragraph, of the coordinated laws on the Council of State, as in force on the day the application was filed, a suspension or other provisional measure ordered before the annulment action must be immediately lifted by the chamber president or the designated councillor who had pronounced it, as soon as he finds that no annulment action invoking the pleas that had justified the suspension has been introduced within the time limit set by the rules of procedure. Here no annulment action had been introduced and the suspended act could no longer be annulled. The suspension ordered on 26 February 2014 therefore had to be lifted. On the costs the Council ruled otherwise: because the Walloon Region had withdrawn the contested act on 4 April 2014, the costs, set at 1,050 euros, fell on the Region. The Council accordingly lifted the suspension and placed the costs on the defending party.
Why does this matter?
This judgment exposes a mechanism that unsuccessful bidders easily overlook: a suspension under extreme urgency is not an endpoint but a provisional measure that must be supported by a timely annulment action. Whoever obtains the suspension but fails to litigate the merits in time with the same pleas sees that suspension lifted by operation of law — the provisional advantage evaporates because the main case was never brought. At the same time, the judgment shows that ‘the suspension is lifted’ is not the same as ‘the bidder loses everything’. Here the Walloon Region had meanwhile withdrawn its own award decision, and that withdrawal made the Region the party bearing the costs. The outcome is thus twofold: procedurally Tempora loses its provisional suspension, but the practical result — the contested award has disappeared — works in its favour, and the costs ruling follows that reality. For anyone litigating about public procurement, the message is that the choice between merely suspending and also annulling carries strategic weight, and that the consequences of a withdrawal by the authority must be assessed separately.
The lesson
If you obtain the suspension of an award under extreme urgency, bring the annulment action in time as well, with the same pleas: otherwise the suspension is lifted by operation of law and you are left empty-handed as far as the procedure goes. Quickly assess whether the main case is still needed — for instance when the authority withdraws its decision — because without an annulment action the suspension loses its basis. Bear in mind, however, that a withdrawal by the authority can turn the costs ruling in your favour: if the authority withdraws the contested act, it usually bears the costs. As an authority, the lesson is that withdrawing a suspended decision is a legitimate way to correct a procedure, but that you bear the costs of doing so.
Ask yourself
Do you know that a suspension obtained before the annulment action is lifted by operation of law if you do not bring a timely annulment action with the same pleas? After a favourable suspension, did you decide whether you still pursue the main case — especially when the authority withdraws the contested decision? Do you realise that lifting the suspension does not mean you lose everything, because the withdrawal makes the contested award disappear? And do you know that such a withdrawal by the authority usually places the costs on the authority, even though the suspension is lifted?
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →