Lost your extreme-urgency suspension? Don't forget to request continuation within thirty days — otherwise you have, by law, abandoned your entire action
After the Council of State rejected its extreme-urgency suspension, PRESTA SERVICES did not within 30 days request continuation of the annulment procedure — under article 17, § 7 of the Council of State laws this triggers a legal presumption of desistment and closes the entire action.
What happened?
The Walloon Region organised an open call for tenders for the supply and installation of 600 packs of automated external defibrillators (AEDs). On 5 November 2014 the contracting authority closed the procedure without award — no offer was found regular — and announced a new negotiated procedure without publication. In that second round the contract was awarded on 4 June 2015 to PRESTA SERVICES. But a few weeks later, on 17 June 2015, the Region withdrew that award and granted the contract to DEFIBRION, a Dutch company. PRESTA filed an annulment action before the Council of State against both the decision of 5 November 2014 (abandonment of the open procedure) and the award of 17 June 2015 to DEFIBRION, combined with an extreme-urgency suspension application. By judgment no. 231.991 of 24 July 2015 the Council rejected the suspension — DEFIBRION's intervention was, however, accepted. This is where the procedural mechanism of article 17, § 7 of the Council of State laws kicks in. When a suspension is rejected, a legal presumption of desistment arises: if the applicant does not file a 'request to continue the procedure' within thirty days of service of the rejection judgment, it is deemed to have abandoned its entire annulment action. On 16 September 2015 First Auditor Eric THIBAUT drafted a note requesting that the desistment-of-action procedure be activated. On 18 September 2015 the registry notified PRESTA that the chamber would rule on the presumed desistment unless PRESTA requested a hearing within fifteen days. PRESTA reacted neither with a continuation request nor with a request to be heard. Chamber President Jacques JAUMOTTE finds that all the conditions of article 17, § 7 are met: suspension rejected, no continuation request within the deadline, no request for a hearing. The Walloon Region had requested €700 in procedural indemnity in its observations, and since there is no reason to reduce it, PRESTA is ordered to pay that amount plus €350 in additional court costs.
Why does this matter?
An extreme-urgency procedure before the Council of State technically consists of two parts: the suspension application in extreme urgency, and the underlying annulment action. Anyone who assumes that losing the suspension automatically ends the case — or, conversely, that the annulment 'just runs on' — makes an expensive mistake. Article 17, § 7 obliges you to actively continue: within thirty days of service of the rejection judgment you must file a continuation request, or the annulment procedure dies with a presumption of desistment. This is no minor formality: it costs you not only your substantive review but also €700 in procedural indemnity plus court costs. For anyone who loses an extreme-urgency suspension this is therefore a critical date to put in the diary.
The lesson
If you lose an extreme-urgency suspension: immediately set a reminder for thirty days after service of the rejection judgment. Decide within that period whether you want to continue the annulment action. If yes — file a continuation request under article 17, § 7 of the Council of State laws in time. If no — consciously let the deadline expire (the desistment procedure entails a procedural indemnity, but you were already on the hook for that). The critical mistake is: do nothing and hope the annulment continues on its own. It does not. Whatever happens: the registry will warn you, after which you still have fifteen days either to request continuation or to ask for a hearing before the case is definitively closed.
Ask yourself
Have you received a Council of State judgment rejecting your suspension? Count thirty days from service and put the date in your diary. Then another fifteen days from the registry's warning letter. Two days before expiry: have you filed a formal continuation request (not an email, not a phone call — a formal procedural act)? If not, and you want the annulment to continue — do it immediately. If not, and you accept the end — budget for the procedural indemnity (€700 basic) and additional court costs (€350).
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 →