Vlarema requires municipalities to conclude an agreement with a recycling centre — that creates no monopoly and does not displace the procurement law
ILVA awarded the collection of household textile waste for ten years exclusively to three recycling shops on the basis of an alleged 'statutory delegation' under the Flemish Vlarema regulation, but the Council of State suspends: neither the 2005 recognition decree nor article 5.1.7 of Vlarema confers an exclusive right on recycling centres — a public procurement procedure was required.
What happened?
On 28 January 2016 the board of the Intermunicipal Cooperation for Environment Land of Aalst (ILVA) approves three textile agreements, each for ten years, with the recycling shops Teleshop, 't Vierkant and Vlaamse Ardennen. ILVA awards without notice and without a procurement procedure. On 29 March 2016 a notice does appear in the Bulletin des Adjudications — but only for the acquisition and processing of the residual fraction of textiles already collected by those same recycling shops. Three private textile collectors (Recutex, VICT and Victrans) sense the issue, ask for documents on 1 April 2016 and on 13 April receive the award decision and the three agreements, with the message that 'the regulations on public procurement do not apply'. ILVA argues a 'statutory delegation' under article 2 of the Flemish decree of 20 May 2005 (recognition of recycling centres) and article 5.1.7 of Vlarema (obligation for the municipality to conclude an agreement with a recognised recycling centre). The three collectors file an extreme-urgency challenge on 28 April 2016. The Council of State runs the analysis briskly. The 2005 decree concerns only recognition, not the assignment of a collection task. Article 5.1.7 Vlarema obliges the municipality to conclude 'at least an agreement' with a recognised recycling centre on awareness, referral, collection methods, residual waste and remuneration — but does not say that 'only' recycling centres may collect. The travaux préparatoires (SERV/Minaraad opinion, note to the Flemish Government) explicitly warn against 'subsidised competition'. OVAM's Implementation Plan for Sustainable Household Waste Management confirms: 'Preferably no monopoly per municipality is established'. No statutory delegation. The alternative qualification ('service concession') falls outside the dispute: ILVA did not adopt that qualification when taking the contested decision. Argument under art. 106(2) TFEU (exclusive rights for services of general economic interest): same problem — not in the contested motivation. Conclusion: this is a public contract, and by awarding without competition ILVA infringed article 5 of the law of 15/06/2006 (equal treatment, transparency, competition). The plea is serious. The Council suspends the contested decision at extreme urgency. Costs reserved.
Why does this matter?
For private operators in waste management, social economy, healthcare or culture this is a leverage judgment: whenever a contracting authority claims that a 'statutory delegation' or a 'service of general economic interest' switches off public procurement law, you can apply the Council's strict test. A delegation must directly and extra-contractually confer a power — an encouragement to enter into an agreement is not enough. For contracting authorities working with social economy or recognised collectors: distinguish between 'must conclude an agreement' (often imposed by regulation) and 'may only work with this partner' (rarely imposed). The presence of the first does not give you a procurement-law free pass — it actually heightens your duty to choose the best partner through competition.
The lesson
If a regulation requires you to conclude an agreement with a specific category of partner (recycling centres, social economy, recognised providers), check whether that regulation also names them EXCLUSIVELY. When in doubt: run a procurement procedure and reflect the recognition or policy objectives as selection or award criteria. Awarding without competition on the basis of a 'statutory delegation' that is in fact only a duty to cooperate gets you suspended — and you have to redo the procedure.
Ask yourself
If you intend to award a contract to a specific partner on the basis of a 'statutory delegation': can you point to a passage in the decree or order that makes that partner's competence EXCLUSIVE — not merely 'at least' or 'preferably'?
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 →