Won a suspension earlier? Make absolutely sure to file the annulment in time — otherwise your win evaporates
The Council of State lifts the earlier suspension (judgment 229,104) of a CPAS Brussels medicines procurement because the applicants never filed an annulment request — and refuses the requested procedural indemnity because the amount was never specified.
What happened?
On 1 October 2014, the CPAS of Brussels published a tender for medicines (reimbursable and non-reimbursable specialties, magistral preparations) for residents of its retirement and nursing homes. A pharmacist (Luc Defrance) and the professional union APB filed an emergency suspension on 15 October against the award conditions and the specifications. On 7 November 2014 the Council of State granted suspension (judgment 229,104). A solid result for the pharmacists. Then things went wrong. Article 17, §4, paragraph 3 of the Council of State Act is unforgiving: a suspension granted before an annulment request is filed is automatically lifted if within the deadline no annulment request invoking the same grounds is filed. Defrance and APB never did. Result: the contested decision can no longer be annulled, and the 7 November suspension must be lifted. Meanwhile the CPAS itself withdrew the contested documents on 6 May 2015 — that gives Defrance and APB the €400 procedural costs from the CPAS. But the requested procedural indemnity? Their second miss. Article 84/1 of the Regent's Decree of 23 August 1948 requires the amount of the requested procedural indemnity to be stated in every procedural act; in emergency proceedings, this can be done up until close of debates. Defrance and APB only asked for 'a procedural indemnity' without amount — and never supplemented before 7 November 2014. Result: 'no need to rule on the procedural indemnity'. No indemnity.
Why does this matter?
Winning a suspension feels like the finish line, but legally it isn't. Without a follow-up annulment, your win disappears and the contested decision regains legal effect. Practical consequence: in the meantime the authority can simply restart or withdraw the procedure — and you have no means to block that. Also: the formality of explicitly stating your procedural indemnity amount is strictly applied. Mentioning 'we ask for a procedural indemnity' without a figure = no indemnity.
The lesson
If you win a suspension in emergency proceedings, also file an annulment request within the deadline (60 days from notification of the contested decision) that repeats the same grounds — otherwise your suspension is lifted automatically. And explicitly state the amount of the procedural indemnity in every procedural step.
Ask yourself
Just won a suspension? Mark the annulment deadline (60 days) in your calendar and check today: did your original petition also include annulment? If not: write a separate petition now.
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 →