If you request documents via both freedom-of-information and art. 877 Judicial Code, you implicitly pick one track
The Council of State declares itself incompetent to rule on Jérouville's appeal against SRWT's partial refusal to provide documents about modifications to the Charleroi metro contract, because Jérouville was already requesting the same documents via art. 877 of the Judicial Code in her damages procedure before the Namur court.
What happened?
In July 2008 the Société Régionale Wallonne du Transport (SRWT) awarded the rails and switching equipment contract for the Gosselies branch of the Charleroi metro to the temporary association Taveirne-Frateur De Pourcq-Railconstruct. Jérouville, a losing bidder, appealed that award (case 189,836/VI-17,951). The Council of State adjourned proceedings on 7 December 2012 (judgment 221,658) pending a parallel criminal complaint. Jérouville also filed damages proceedings before the Namur civil court on 2 April 2012. In those proceedings, Jérouville asked under art. 877 of the Judicial Code for production of documents — specifically, the decisions by which SRWT had allegedly modified the contract during execution. In parallel, on 15 November 2012, Jérouville asked SRWT for the same documents under the Walloon publicity decree of 30 March 1995. No response. On 17 July 2013 Jérouville filed a reconsideration request and brought in the Walloon Access Commission. On 28 August 2013 the Commission ruled SRWT must produce the documents. But on 16 September 2013 SRWT sent only the site meeting minutes of 7 May 2009 and one technical sheet — not the modification decisions. Jérouville appealed to the Council of State (XVe Chamber) against the selective refusal. SRWT raised incompetence: same documents already sought via art. 877 in Namur. The Council agrees. Settled case-law: publicity decrees don't apply when the request effectively seeks production of documents before a court that can itself order such production. Otherwise the Council would interfere with judicial proceedings and substitute itself for the trial judge. It doesn't matter that Jérouville claims to need the documents 'also' for the frozen procurement appeal — that procedure has been pending since September 2008 under the Council's own procedural rules, not under publicity rules. Application dismissed, €175 costs to Jérouville.
Why does this matter?
When a contract is modified during execution (e.g. additional works, changed specifications, price revisions), losing bidders often want access to those modification decisions — to back up an argument 'you shouldn't have done it this way' or to support a damages claim. This judgment shows you can't run two tracks at once: if you've requested the same documents via art. 877 of the Judicial Code in civil proceedings, you're locked in on that track — the freedom-of-information route via the Council of State closes itself off.
The lesson
If you want documents about contract modifications during execution, consciously pick one route: either freedom-of-information (decree/law) or article 877 of the Judicial Code in pending court proceedings — not both. If civil proceedings are already pending where you've sought the same documents, forget the Council of State as a shortcut; you'll get hit with incompetence.
Ask yourself
Before filing a freedom-of-information appeal at the Council of State: have you already asked for the same documents under art. 877 of the Judicial Code in pending civil proceedings? If yes, drop the Council appeal — otherwise it costs you needless legal fees.
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 →