Social housing, public procurement, millions in renovation work — and yet incompetent: a Brussels SISP is not an 'administrative authority' for the Council of State
When challenging an award decision of a Brussels public real-estate company (SISP), the Council of State declines jurisdiction — a Brussels SISP is not an administrative authority within the meaning of article 14 of the Council of State laws, so rejected bidders must turn to the civil court, even when the award concerns a public works contract for 58 social housing units.
What happened?
L'HABITATION MODERNE, a Brussels société immobilière de service public (SISP), launched a public procurement for the heavy renovation of a building with 58 social housing units at Avenue des Pléiades 52-60 in 1200 Brussels (municipality of Woluwe-Saint-Lambert, which is the majority shareholder). HULLBRIDGE ASSOCIATED submitted an offer. At an unknown date L'HABITATION MODERNE declared that offer irregular and awarded the contract a priori to GILLION CONSTRUCT. HULLBRIDGE filed an extreme-urgency suspension application on 8 February 2016. The applicant knew that the case law was divided on whether Brussels SISPs are 'administrative authorities' at all, and so 'par sécurité' also lodged a parallel application with the president of the French-speaking civil court of first instance in Brussels. The Council of State dissects the jurisdiction question thoroughly. The legal pivot: the Council can only rule on unilateral decisions of L'HABITATION MODERNE if it is an 'administrative authority' within article 14, § 1 of the Council of State laws. According to the Court of Cassation (judgment of 10 June 2005, repeated in 2013 in BSCA), a private-law company — even one created and controlled by a government and tasked with a mission of general interest — is only an 'administrative authority' if it can take binding decisions vis-à-vis third parties ('pouvoir d'imperium'). The Council reviews its own established case law on Brussels SISPs: judgments 211.775 (3 March 2011), 215.147 (14 September 2011, Foyer Anderlechtois) and 220.810 (2 October 2012). All three held that a Brussels SISP is not an administrative authority. Only one judgment departed from this — no. 229.248 of 20 November 2014 — but solely because the opposing party there had developed no proper argumentation and had suggested that a later amendment of the Brussels Housing Code might overtake the earlier line. In the present case the Council examines whether that amendment actually changes the nature of an SISP. The answer is no: Brussels SISPs remain private-law companies (SA or SCRL), the Brussels Code contains no provision prohibiting their incorporation by private parties — unlike in Wallonia where article 130, § 1 of the Code wallon du Logement explicitly qualifies Walloon SISPs as legal persons of public law. The expropriation power in article 68 of the Brussels Housing Code still requires a government authorisation and is in any event not a pouvoir d'imperium. The Council further notes that the letter by which L'HABITATION MODERNE notified the contested decision to HULLBRIDGE itself designated 'the civil court of first instance in Brussels' as the review body — consistent with non-administrative status. Acting President David De Roy declines jurisdiction and rejects the application. HULLBRIDGE is ordered to pay €700 in procedural indemnity and €200 in additional costs. The substantive question now continues before the French-speaking court of first instance in Brussels.
Why does this matter?
Anyone seeking to challenge an award by a Brussels social housing company faces a first question at the outset: Council of State or civil court? The answer — confirmed by this judgment — is: civil court, not Council of State. That distinction is not a detail: deadlines, procedural rules, costs and the legal techniques (article 17 of the Council of State laws versus an injunction before the court president, with different standards of review) differ considerably. A mistake costs you not just the procedural indemnity but also the precious fifteen-day deadline of article 23 of the law of 17 June 2013. Important to know: this reasoning does not automatically apply to Flemish and Walloon SISPs — the Code wallon du Logement explicitly makes a Walloon SISP a public-law legal person, and therefore an administrative authority. The nature of the contracting authority thus varies by region and dictates where to file.
The lesson
If you want to challenge an award by a Brussels SISP: file primarily before the president of the civil court of first instance (French-speaking or Dutch-speaking depending on the language role), not before the Council of State. The notification letter from the contracting authority will usually itself designate the civil court as the review body — believe that indication. If you nevertheless want to open both procedures 'par sécurité' in parallel, know that you can expect a finding of incompetence in the Council of State proceedings, with the corresponding costs. For Walloon SISPs or for contracting authorities with explicit public-law status: do file before the Council of State. Always check the applicable regional rules first, because the correct forum depends on the region.
Ask yourself
Before filing an extreme-urgency suspension against an award before the Council of State: is the contracting authority a Brussels SISP (société immobilière de service public)? If yes — STOP, and turn to the civil court of first instance. Also look at the notification letter of the award: which court is named there as the review body? If it is the tribunal de première instance — follow that indication. For Walloon SISPs, or for another type of contracting authority (municipalities, OCMWs, the federal state, the Régie des bâtiments, etc.): the Council of State is the right venue.
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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 →