Claim your procedural compensation no later than 5 days before the hearing — otherwise the request is late, even if you win the case
The Walloon Region withdrew the contested award decision before the annulment ruling; the Council declared the action moot, but refused the €2,800 procedural compensation because the applicant only requested it at the hearing.
What happened?
On 4 September 2014 the Walloon Region awarded lot 6 of a framework agreement for judicial officers (marché O7.00.01-13G05) to four associations. ASSOCIATION DES YERNAUX and E.P.Y.-E.G.G. — two judicial officer firms that were not selected — filed an annulment action and an extreme-urgency suspension on 22 September 2014. On 30 October 2014 the Council suspended the decision (judgment 228.988). Rather than fight the suspension, the Walloon Region took a different route: on 5 May 2015 it fully withdrew the award decision and re-launched it. In the new decision all candidates were selected, all offers declared regular and the lot was again awarded to the same four associations (with Bertrand WAMBERSY as reserve). A second extreme-urgency action against that new decision did not yield a suspension for the Yernaux side. The withdrawal made the original action moot: the Council found that there was nothing left to rule on and lifted the suspension. Costs in principle fall on the losing side — but because the withdrawal is attributable to the Region, it bore the 'other costs' (registration fee and contribution, together €2,950). The final twist concerned the procedural compensation. At the hearing on 21 October 2015 the applicants asked for the maximum amount of €2,800, citing the complexity of the case and longer pleadings in the suspension proceedings. The Council refused. Article 84/1 of the Royal Decree of 23 August 1948 requires every procedural act or liquidation note to state the requested procedural compensation, and any modification must be filed at least 5 days before the hearing. The rule exists so that the other party and the auditor can prepare. Only in extreme-urgency suspension or provisional-measure proceedings can the compensation be requested up to the closing of debates — not in an annulment action. The oral request at the hearing was therefore late and inadmissible. Five parallel rulings on the same day (nos. 232.779, 232.780, 232.781, 232.782 and 232.784) resolved identical disputes about other lots of the same procurement with exactly the same outcome.
Why does this matter?
If you obtain a suspension you may think 'we won, the authority pays'. Not necessarily. If the authority then withdraws the decision — possibly with a fresh award that comes out the same way — your annulment action becomes moot. You will recover the other costs (registration fee, contribution), but the procedural compensation — typically the biggest item for your lawyer — must be claimed explicitly and in time. Miss that, and your legal fees stay with you.
The lesson
In your initial application and every brief, claim the desired procedural compensation as a matter of routine (with the amount, at the maximum if you want). If you change the amount, file a liquidation note at least 5 days before the hearing. In ordinary annulment and suspension proceedings you cannot raise it for the first time at the hearing.
Ask yourself
For every action I file: is the procedural compensation claim (with the amount) explicitly in my application? And does my calendar remind me, 6 days before the hearing, to verify whether the amount needs to be adjusted?
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 →