Lose your emergency suspension, do nothing, and the authority bills you €900 for the privilege
The Council of State finds OIL nv presumed to have abandoned its appeal after its emergency suspension against the award of the Jabbeke bridge painting to De Medts was rejected — and orders OIL to pay €200 roll fee and €700 procedural indemnity to the Flemish Region.
What happened?
On 18 December 2014 the Flemish Region's Roads and Traffic Agency awarded the painting works for the bridge over the Ghent-Ostend canal in Jabbeke to NV De Medts. OIL nv, which lost, filed an annulment + emergency suspension on 30 January 2015. In judgment 230,397 of 3 March 2015 the Council of State rejected the suspension. OIL then took no further action: no continuation request, not even after the 5 May 2015 standard letter inviting it to do so under article 11/3 of the Regent's Decree. The 30-day deadline expired. Result: presumed abandonment under article 17, §7 of the Council of State Act. So far a banal procedural ending. The important difference with other abandonment cases is on costs: the Flemish Region had — unlike in similar cases — not withdrawn its award decision. The award to De Medts stood. The Flemish Region asked for €700 procedural indemnity. The Council ruled: 'in the given circumstances' the Flemish Region is the winning party under article 30/1 of the Council of State Act. OIL nv is ordered to pay €200 roll fee plus the full €700 base procedural indemnity. Total: €900 'for nothing', because OIL achieved nothing on the merits.
Why does this matter?
The combination 'lost suspension + don't continue' seems at first sight a free exit strategy: just stop, no further costs, worst-case you lose the time already invested. This judgment shows that's wrong: a 'presumed abandonment' still costs you the full base procedural indemnity (€700) if the authority requested it. For applicants this means: decide consciously before the 30-day deadline — either continue substantively (chance of winning, but also risk of losing + indemnity), or actively withdraw (no indemnity owed in moot cases). Doing nothing is the most expensive option.
The lesson
If you've lost an emergency suspension and don't want to continue substantively, make an EXPLICIT withdrawal before the 'presumed abandonment' is found. Or request continuation and reach a settlement with the authority. Not responding = automatic procedural indemnity + roll fee on your bill if the authority requested it.
Ask yourself
You received a continuation invitation after losing an emergency suspension. Before deciding to stay silent: check whether the authority already requested a procedural indemnity in its observations note. If yes: you owe €700 + €200 = €900 if you don't respond.
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 →