If you want a suspension, first prove that there is something to suspend
The Council of State dismisses the extreme-urgency suspension request brought by eleven judicial officers against the alleged award of penal-fines collection to the Gerhanko firm, because they fail to show that the contested award decisions even exist — an email invitation to a software demo and a self-drafted account of a phone call are not enough.
What happened?
The Belgian federal tax administration (FOD Financiën) is developing a new electronic application called 'FIRST' for the collection of criminal fines. On 29 January and 1 February 2016, judicial officers receive an email invitation to a demonstration of the application. A number of firms — including Dockers in Waregem, Vandermarliere in Roeselare and Exekor in Kortrijk — are told on 3 February 2016 that the invitation was a misunderstanding: they only handle non-fiscal collections, not penal fines, and may treat the invitation as non-existent. Mr Alex Dockers protests immediately. His firm has worked for the Kortrijk receiver's office since 2007. He claims the workload was funnelled centrally through Gerhanko, which then redistributed files by region. On 22 February 2016 he calls the receiver and — according to his own account — concludes that the receiver will from now on 'work only with Gerhanko'. He sends an email asking for confirmation. On 29 February 2016, eleven judicial officers, represented by Sven Boullart, ask the Council of State for an extreme-urgency suspension. They challenge 'two decisions of unknown date' — one by the Director-general of the collection administration, the other by the Kortrijk receiver — supposedly awarding 'the contract for collection of penal fines' to Gerhanko. The State and Gerhanko respond with the same defence: these decisions do not exist. Gerhanko has been doing this collection work for the federal administration and continues to do so — nothing has changed. The FIRST demo invitation only targeted firms already involved in penal-fine collection and is in any event not the announcement of a new award. The administration concedes that a future formal procurement is being prepared, but it has not yet started — until it does, only firms 'already working for the AAII' can be used. In his judgment of 29 March 2016, Chamber President Dierk Verbiest finds that the eleven officers did not attach the contested decisions to their request. The other documents show no award either. The emails about the demo invitation and its withdrawal concern only an IT system, not a procurement procedure. The phone call Mr Dockers relies on is corroborated only by his own follow-up email — the receiver never confirmed. Even the invitation and its withdrawal are not actionable administrative acts: they produce no legal effects, regardless of whether anyone showed up. The action is dismissed for manifest lack of subject matter. The eleven applicants are ordered to pay a court fee of €2,200, one eleventh each. Gerhanko's request for a procedural indemnity is denied under article 30/1 § 2 of the consolidated laws on the Council of State (an intervening party cannot claim it).
Why does this matter?
The instinct to file an extreme-urgency suspension when you suspect a contracting authority has quietly awarded work to a single supplier is understandable. But for the Council of State, suspicion is not enough — there must be a contested decision whose existence is documented by something other than the applicant's own emails. An internal note about a software demo, a personal account of a phone call, or the observation that 'they keep using that one firm' will not do. For bid managers: before launching an extreme-urgency action, gather genuine evidence — an award report, a notification letter, minutes, a published notice — and keep in mind that a failed action costs thousands of euros in court fees alone.
The lesson
If you suspect a contracting authority has awarded work without a proper procedure, first request the documentation formally (freedom-of-information rules, article 32 of the Constitution, a written request for the award decision) before turning to the Council of State. An extreme-urgency action against a 'decision of unknown date' whose very existence is contested almost always ends in dismissal for lack of subject matter — with the court fee, and possibly the procedural indemnity, on you.
Ask yourself
Before you file an extreme-urgency action: do you hold (a) a written award or assignment decision, (b) a notification of rejection or (c) a published award notice? Failing that, do you at least have written communication from the contracting authority itself unambiguously showing that a specific contract was awarded? If all your 'evidence' consists of your own emails or hunches, you will almost certainly walk out of the Council of State empty-handed.
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 →