Not every public contract goes to the Council of State — a free Catholic school is not an administrative authority for its public procurement
The Council of State declares itself incompetent to hear an extreme-urgency action by two architectural firms against the award of an architecture contract by a free Catholic school (asbl Collège Sainte-Marie), because an award decision by such a private asbl creates no obligations toward third parties and the school is therefore not an administrative authority within the meaning of article 14 — challenging such an award requires going to the civil courts.
What happened?
The asbl Collège Sainte-Marie — a free Catholic education institution in Namur, established purely on private initiative, with the statutory aim of organising 'Catholic schools recognised by the Bishop of Tournai' — launches a public service contract for full architecture, stability and special techniques services. On 19 October 2016 the contract is awarded to SPRL ARTEO. The rejected bidders, the architecture firm SPRL NORD together with SPRL Bureau Vers Plus de Bien-Etre, receive notification on 17 November 2016 and file an extreme-urgency application for suspension on 2 December 2016 with the Council of State. The asbl immediately raises a competence objection: it is not an 'administrative authority' within the meaning of article 14 of the coordinated laws on the Council of State, and consequently the Council of State is not the competent court under article 24 of the Law of 17 June 2013 on remedies in public procurement. Article 24 splits competence: the Council of State for contracts awarded by 'an authority referred to in article 14, §1' of the coordinated laws on the Council of State, and the civil courts for all other contracting bodies. The applicants defend themselves with judgments of the Court of Cassation (5 February 2016) and the Council of State itself (n° 234.858 of 25 May 2016) and an order of the President of the Brussels Court of First Instance of 14 June 2013, which according to them show that an education institution is indeed an administrative authority when it places a public contract. They criticise the case-law dichotomy under which the same school is an administrative authority for some decisions (e.g. setting the specifications) but not for others (the award decision). They also point to the effectiveness of judicial protection: European remedy directives require an effective remedy and splitting between Council of State and civil courts complicates access to the judge. The Council of State (acting chamber president David De Roy of the 6th chamber) sticks to the established dichotomy: legal persons established by the public authorities (even in a private-law form) to perform a public service mission are an integral part of the administration and are always authorities — even when they take no binding decisions toward third parties. Private-law legal persons born of purely private initiative but recognised or controlled by the public authorities to perform a public service mission are only authorities when and insofar as they take unilateral binding decisions toward third parties. Collège Sainte-Marie falls into the second category: born of private initiative, organs composed of private persons, performing a public service mission under the control of the French Community. When it issues diplomas validated by the French Community and binding on third parties, it is an administrative authority. But when it decides to award a public contract to firm X rather than firm Y, no obligation toward third parties arises — only a contractual link with the chosen bidder. The fact that the Public Procurement Act of 15 June 2006 applies to the disputed contract does not change this: the question of competence for the Council of State and the question of applicable law are distinct. The invoked case-law is, according to the Council, not useful because the entities involved in those cases had a different profile. The criticism of the consequences for the available remedies is rejected: without ruling on its relevance, the Council finds it does not in any event show why it should be competent in this case. Result: application rejected for lack of competence. The asbl wins the case and is awarded 700 euros procedural indemnity (base rate, no reason for an increase). The other costs (400 euros) borne by the applicants, equally split. On a notable side note: the Council records that the notification of the award decision contained a 'clearly deficient' indication of the competent appeal body, but that the asbl did not expressly mislead the applicants — so no sanction. The confidentiality of the bids is maintained at this stage of the procedure.
Why does this matter?
Not every contracting authority within the meaning of public procurement law is an 'administrative authority' within the meaning of article 14 of the laws on the Council of State. Free education institutions, free hospitals, religious cultural institutions, free social workshops, and various private asbls born of purely private initiative but nonetheless subject to public procurement legislation (because they are 'contracting authorities' through subsidies, control, etc.) do NOT fall under the Council of State for their award decisions. The consequences are practical: different deadlines, different procedure, different procedural indemnities, different strategy. Choosing the wrong forum costs you not just the case — it costs you time, because the very strict expiry deadlines run out shortly afterwards. A second lesson for rejected bidders: look not only at what the contracting authority is (an asbl, a public agency, a hospital), but also at which specific decision you are challenging. An award decision and the decision setting the specifications can be qualified differently for the same entity.
The lesson
Before filing an extreme-urgency action or ordinary suspension: check explicitly whether the contracting authority you are challenging is an 'autorité administrative' within the meaning of article 14, §1 of the coordinated laws on the Council of State. The rule of thumb: (1) was the entity established by the public authorities or for a public service? Then always Council of State. (2) Did it come from private initiative but is it recognised/subsidised by the public authorities? Then only Council of State for decisions that unilaterally create obligations toward third parties — an award decision does NOT, and so it is the civil courts (summary proceedings before the President of the Court of First Instance, on the basis of article 24, 2° of the Law of 17 June 2013). Important: even if the notification of the award decision wrongly states that 'an appeal lies with the Council of State', you cannot rely on that — a deficient indication of the appeal body does not automatically penalise the contracting authority. Finally, simultaneously file a 'protective' procedure before the civil courts (as NORD did here through summons on 2 December 2016) if you are in doubt about the competent forum.
Ask yourself
On the next rejection or award to a competitor that you want to challenge: open the articles of association or founding act of the contracting authority. Was the entity founded by the public authorities or by private persons? Is the board of directors composed of private persons or of public officials? Which specific decision are you attacking: a unilateral decision binding third parties (e.g. issuing a diploma, a permit), or a contractual decision such as an award? Answer: private + contractual = civil courts, not the Council of State.
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 →