Filed your annulment four days too soon — and you pay €200 in court fees for proceedings that lapse for lack of subject matter
Shanks Belgium won extreme urgency on 24 January 2017 against IMOG's award to DEME for the processing of waste-incinerator residues, filed an annulment application on 17 February 2017, and saw IMOG withdraw the contested decision four days later on 21 February 2017 — outcome: the Council declares the proceedings without object and orders double court fees (€400) plus €700 lawyers' costs against IMOG.
What happened?
The intermunicipal company for public health in South-West Flanders (IMOG) on 20 December 2016 awarded a two-lot contract for the processing of residues from its waste incinerator to NV DEME Environmental Contractors: lot 1 (electrofilter fly ash) and lot 2 (filter cake). NV Shanks Belgium immediately filed an extreme-urgency application before the Council of State. By judgment no. 237.127 of 24 January 2017, the XIIth chamber suspended the award decision in extreme urgency — Shanks had made its case. From that moment the clock started ticking for Shanks: article 17 §4, third paragraph of the coordinated laws on the Council of State provides that the extreme-urgency suspension lapses by operation of law if no annulment application follows within the deadline. Shanks chose certainty and filed its annulment application on 17 February 2017. Four days later, on 21 February 2017, the IMOG board of directors itself withdrew the contested award. The Council heard the case on 27 June 2017. First auditor-section head Luc Vermeire had drawn up a report under article 93 of the Regent Decree of 23 August 1948 — the procedure for 'objectless' applications. The XIIth chamber (acting president Johan Bovin) found that the withdrawal had rendered the application without object and dismissed it. The cost order tells the whole story: IMOG was ordered to pay the costs of both the extreme-urgency application and the annulment application — court fees of €400 (twice €200) plus €700 lawyers' costs. The intervening party DEME bore the costs of its intervention (€150 court fee).
Why does this matter?
For bidders winning extreme urgency the question is always: file annulment now for safety, or wait for the authority to act? This judgment illustrates one scenario: Shanks chose to file early, and paid €200 extra in court fees because IMOG withdrew four days later. Had Shanks waited (the annulment deadline after an extreme-urgency suspension typically gives several weeks — generally 30 days from the suspension order), it would never have filed and would have come away €200 lighter. The scenario would be entirely different had IMOG not withdrawn: then the annulment was absolutely needed to keep the suspension alive and ultimately obtain a judgment of annulment. The choice depends on the assessment of how the authority will respond to the extreme-urgency outcome. An authority signalling planned withdrawal early (informal communication, withdrawal of internal approvals) makes waiting reasonable. An authority that goes silent or publicly defends the award pushes you toward an annulment that may turn out to be redundant.
The lesson
Don't automatically file annulment after an extreme-urgency suspension. Check first: has the authority responded? A swift withdrawal within one or two weeks of the suspension is a strong signal. Plan to use the full annulment deadline — typically up to 30 days from the suspension order — and only file when the deadline is about to expire without movement from the authority. However: if you want to anchor the case substantively (precedent value, preventing future similar awards), early filing may be valuable — but choose that consciously and accept the additional court-fee cost.
Ask yourself
Just won extreme urgency? Calculate the annulment deadline today, set an agenda reminder one or two days before that deadline, and watch the authority's communication in the meantime. File only when (i) the deadline is about to expire without authority response, or (ii) you specifically want precedential value.
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 →