Suspension automatically lifted because no annulment was filed — and yet the applicant still gets the procedural indemnity
The Council of State lifts the previously ordered suspension because no annulment action followed, but still orders the Belgian State to pay 700 euro procedural indemnity and 200 euro costs because, by a corrective decision of 22 July 2016, the State implicitly admitted that the original tender conditions had been set by an authority that was not competent.
What happened?
The International Polar Foundation (IPF) had filed an extreme-urgency suspension on 17 June 2016 against the conditions of a procurement for support to the BELARE Antarctic campaigns at the Princess Elisabeth Station. By judgment 235,533 of 20 July 2016 the Council suspended the procurement: the Council of Ministers' note of 29 April 2016 had approved the object and procedure of the contract and authorised the Secretary of State for Science Policy to launch it, but said nothing about the actual tender conditions. A decision setting those conditions had therefore necessarily been taken before publication of the notice — explicitly or tacitly — and the State had been unable to identify it. The Council could not verify whether a competent authority had set those conditions. On 22 July 2016, two days after the suspension, the Secretary of State adopted a new decision expressly setting the object and the conditions of the contract. Its visa expressly referred to judgment 235,533. A second appeal was filed against that new decision (case 219,981/VI-20,835). By judgment 235,983 of 4 October 2016 the Council stayed those proceedings because, on 29 September 2016, the State had abandoned the entire procedure. Reason: by judgment 235,839 of 23 September 2016 the underlying Royal Decree of 10 August 2015 (governing the Polar Secretariat) had itself been suspended. The procurement no longer had a legal basis and was abandoned within the meaning of article 35 of the 2006 Public Procurement Act. Back to the original suspension. Article 17, §4, third paragraph of the coordinated laws on the Council of State provides that a suspension is automatically lifted if no annulment action raising the same grounds is filed within the prescribed time. IPF had not filed annulment — logically, since the original conditions had been replaced. The Council therefore lifts the suspension. But on costs, IPF wins. By the new decision of 22 July 2016, expressly referring to judgment 235,533, the State 'implicitly but certainly' admitted that the original conditions had not been set by a competent authority — precisely the ground IPF had raised. Under article 30/1 of the coordinated laws, IPF is therefore the prevailing party. The Court orders 700 euro indemnity and 200 euro costs against the State.
Why does this matter?
Two practical points. First: an extreme-urgency suspension is not a final judgment. If you don't file annulment, the suspension is automatically lifted after the standard time (article 17, §4, third paragraph). For applicants, a successful suspension is no guarantee of lasting protection — you have to follow through with annulment, unless the contracting authority withdraws or replaces the contested act (as here). Second and lesser known: the cost award follows 'who prevailed', not the formal fate of the suspension. An applicant whose suspension is automatically lifted can still recover the procedural indemnity if the contracting authority, by its conduct (corrective decision, abandonment), has implicitly conceded that the ground was well founded. For contracting authorities, this is a warning: a corrective decision adopted 'to be able to proceed' does not insulate you from the costs of the first procedure — referring to the suspension judgment in the visa of your new decision counts as written admission.
The lesson
If you obtain an extreme-urgency suspension and the contracting authority responds with a new decision that fixes the defect: you don't necessarily need to file annulment against the original act (it has been replaced or rendered moot), but watch the cost award. Expressly request the procedural indemnity when the suspension is lifted under article 17, §4, and point the Council to the contracting authority's corrective acts. For contracting authorities: when adopting a new decision after a suspension, avoid a visa that literally refers to 'judgment X of the Council of State' — that is written acknowledgment that the ground was correct. Either give the new decision its own self-standing motivation, or accept that the costs of the first procedure will fall to you.
Ask yourself
Have you obtained an extreme-urgency suspension and has the contracting authority then taken a corrective decision that refers to your suspension judgment? Then: (a) is it useful to still file annulment against the original act (usually not, because replaced), but (b) expressly request the procedural indemnity when the lifting procedure is heard — point to the implicit admission in the visa of the corrective decision.
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 →