Withdrawing an award decision after an extreme-urgency action costs you €700 procedural indemnity plus the docket fee — even though no one wins on the merits
The Council of State finds that Coca-Cola European Partners Belgium's extreme-urgency action against the award of a vending-machine concession to Pelican Rouge is devoid of purpose because the federal Finance Ministry has withdrawn its award decision in the meantime — and orders the Ministry to pay the docket fee and €700 procedural indemnity, since Coca-Cola counts as the 'successful party'.
What happened?
On 5 December 2016 the Minister of Finance decides to award the concession 'for the ready-to-use installation and management of vending machines for hot and cold drinks and snacks in the buildings occupied by the FPS Finance' (specifications no. S&L/DA/2016/078) to NV Pelican Rouge Coffee Solutions, and consequently not to BVBA Coca-Cola European Partners Belgium, although its offer had also been found regular. On 20 December 2016 Coca-Cola files an extreme-urgency action for suspension of the enforcement of that award decision. The case is fixed for the hearing of 12 January 2017 at 10:00, before the 12th Chamber under chamber president Dierk Verbiest. Coca-Cola is represented by lawyers Els Desair and Benjamin d'Hollander, the Ministry by attaché Selim Dedeli. Before the hearing, the Minister of Finance withdraws the contested award decision by an undated decision. The Ministry has filed a note. At the hearing the Council finds that the action has thereby become devoid of purpose — at the very least, that Coca-Cola has lost its interest in the action. But devoid of purpose does not mean costless. First auditor Ann Eylenbosch issues a concurring opinion. Application of article 30/1 of the coordinated laws on the Council of State and article 67 of the Regent's Decree of 23 August 1948: by the withdrawal of the contested decision, Coca-Cola materially counts as the successful party. The Council orders the docket fee against the FPS Finance and awards Coca-Cola a procedural indemnity of €700.
Why does this matter?
For contracting authorities that see an extreme-urgency action against their award decision coming: a quiet withdrawal is no costless way out. Whoever withdraws their decision after a claimant has engaged counsel and filed a written application bears the docket fee and the procedural indemnity of that claimant — who legally counts as the 'successful party'. For bidders considering an extreme-urgency action: do not let yourself be discouraged by a contracting authority that signals 'we will reconsider' without a formal withdrawal act. Drop your action only when the withdrawal is in writing — otherwise you lose your right to recover costs. For lawyers: make your client aware in advance of the article 30/1 mechanism — €700 is not full coverage, but it is more than nothing.
The lesson
As a contracting authority: weigh carefully before awarding whether your decision will hold up. A subsequent withdrawal, after an extreme-urgency application, costs you at least the docket fee and €700 procedural indemnity for the claimant — without you having resolved anything fundamentally. As an applicant: always expressly request in your action that costs be ordered against the contracting authority if the contested decision is withdrawn during the proceedings — a simple reference to article 30/1 suffices.
Ask yourself
Has the contracting authority withdrawn the contested decision after my extreme-urgency application without a formal decision in my favour? If so, I count as the successful party under article 30/1 of the coordinated laws on the Council of State and may request the docket fee and €700 procedural indemnity to be charged to the contracting authority.
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 →