You win in extreme urgency, the authority withdraws its decision, and you think you're done? Watch out: without an annulment application, the suspension lapses automatically
The Council of State lifts a previously ordered suspension of an award by the City of Genk because Trendhuis filed no annulment application after its extreme-urgency win — but Genk still has to pay the court fee and €700 in costs because it had withdrawn its decision itself.
What happened?
On 31 January 2017 the College of Mayor and Aldermen of Genk decided to award the public service contract 'training for young Genk cultural consultants' to NV Trendwolves and not to BVBA Trendhuis. Trendhuis filed an extreme-urgency application on 18 February 2017. By judgment no. 237.624 of 10 March 2017, the Council of State ordered the suspension of the award. Soon after, on 28 March 2017, the College itself withdrew the contested decision. For the winning party the case seemed closed — but a procedural tail remained. Under article 17 §4, third paragraph of the coordinated laws on the Council of State, an extreme-urgency suspension must automatically be lifted when no annulment application follows. Trendhuis had not filed one. The Council was therefore obliged to formally lift the suspension, even though in practice it had little substance left after Genk's withdrawal. The XIIth chamber (acting president Johan Bovin) ordered the lifting on 27 June 2017. On costs, however, Trendhuis was awarded full satisfaction: the City of Genk was ordered to pay the court fee for the suspension application (€200) and €700 in lawyers' costs. The intervening party Trendwolves had to bear its own court fee of €150. The reasoning: by withdrawing the decision, Genk had de facto acknowledged it could not stand, so the bidder who had won should not also bear the procedural costs.
Why does this matter?
For bidders who win extreme-urgency this is a procedural pitfall. An extreme-urgency suspension is a stop-over, not a destination: article 17 §4, third paragraph expressly provides that the suspension lapses by operation of law if no annulment application follows within the applicable deadline. Bidders satisfied with the extreme-urgency outcome and who file no annulment will see their suspension wiped. In practice that is often fine: either the contracting authority withdraws the award (as Genk did) and must decide again, or it starts a new procedure. But if you suspect the authority will try to re-issue the same decision or circumvent the suspension, an annulment application is required to remove the decision from the legal order.
The lesson
After every extreme-urgency win, consciously assess whether an annulment application is needed. Does the authority withdraw the decision and restart properly? Then the extreme-urgency outcome usually suffices and you can let the suspension lapse safely. Does the authority cling to the original decision or threaten to re-issue it in a slightly altered form? Then a further annulment application is necessary — not just to keep the suspension alive, but to anchor the legal framework for future conduct. And always claim costs and court fees: even on a lifting of the suspension the Council can order the authority to pay when it has withdrawn the contested decision itself.
Ask yourself
Once you have obtained an extreme-urgency suspension and the authority reacts (withdrawal, re-issue, new procedure): have you decided within the deadline whether to file an annulment application, and in any event claimed costs (court fee + €700 lawyers' costs)?
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 →