The dictum kept the documents confidential, but the body of the ruling 'forgot' to say why — six weeks later the Council adds the missing sentence
Six weeks after dismissing in extreme urgency Clear Channel Belgium's challenge against the Commune of Uccle's award of bus shelters to JC Decaux, the Council of State corrects an omission-style material error in ruling 239.056: the conclusion justifying the provisional confidentiality of the two bids and the correspondence with the bidders was missing from the 'Confidentiality' section, while the dictum (Article 4) already drew the consequences from it.
What happened?
On 22 June 2017 the Commune of Uccle awards JC Decaux Street Furniture Belgium a public services contract for the supply, installation and maintenance of bus shelters at its public-transport stops. The decision is notified to Clear Channel Belgium on 1 August 2017; on 14 August Clear Channel files extreme-urgency suspension proceedings via the Council of State's website. During the proceedings all three parties request that certain documents be kept confidential: Clear Channel for an extract of its bid (item A.5); the Commune of Uccle for the two bids received and the correspondence with both bidders (items A to F of the 'confidential' file); JC Decaux endorses the Commune's request. Ruling 239.056 of 12 September 2017 rejects the suspension (neither plea — one on the regularity of JC Decaux's bid, the other on a 'state aid' argument by Clear Channel — is found serious); it orders Clear Channel to pay costs (€700 procedural indemnity + €200 of €350 other costs, JC Decaux bearing the remaining €150) and orders, in Article 4 of the dictum, that items A.5, A and F are 'at this stage of the proceedings to be treated as confidential'. But on rereading the body's section VIII 'Confidentiality', it appears that this section only describes the parties' requests (who asks what) without stating the Council's legal conclusion — Article 4 of the dictum is not linked to an explicit reasoning. That omission is qualified as a material error. The rectifying ruling 239.667 of 26 October 2017 adds, at the end of section VIII, the missing sentence: 'Since at this stage the disclosure of those items is not necessary for the resolution of the dispute, their confidentiality should be provisionally maintained'. The dictum itself (the dismissal of the suspension and Article 4 on confidentiality) remains unchanged. The rectifying ruling is delivered in the referee chamber by a single judge (David De Roy, Council of State, acting president).
Why does this matter?
This ruling complements ruling 239.537 (rectification within the same fortnight in October 2017) by showing that there are two types of material errors the Council corrects through rectifying rulings: (1) those affecting the DICTUM itself (as in 239.537, where a costs order had to be replaced by 'costs reserved'), and (2) those affecting only the REASONING of the body without touching the dictum (as here: the dictum was already correct, but the body did not explain why). In both cases the procedure is the same: a short ruling delivered by the same chamber a few weeks later, modifying the text on a precise point. For practitioners: if you read a ruling whose dictum looks coherent but whose reasoning leaves a logical gap, that may be an omission-style material error. You can flag it; the Council may rectify on its own motion. On confidentiality in public procurement: the ruling confirms that the classic phrase 'provisional maintenance at this stage' presupposes a reasoning of its own, however minimal — the Commune of Uccle, JC Decaux and Clear Channel all three requested it without challenge, but the Council must still briefly state that disclosure is 'not necessary for the resolution of the dispute'. Confidentiality is not automatic.
The lesson
Two lessons. Procedurally: the Council of State's rectifying ruling exists not only to correct errors in the dictum but also to fill in reasoning gaps in the body. If you spot a ruling that states a dictum without the corresponding reasoning, you can write to the registry to flag the omission — the rectification can follow within weeks. On confidentiality: the ritual phrase 'provisional maintenance at this stage' is not a standard mention; the Council must verify and state that disclosure is not necessary for the resolution of the dispute. For bidders requesting confidentiality, frame the request explicitly and limit it to documents whose disclosure could harm commercial secrecy without blocking the debate on the merits.
Ask yourself
Did you obtain a ruling globally in your favour but whose body does not motivate a point of the dictum (here: confidentiality)? Write to the registry to flag a material omission — the rectification is by a short new ruling, without reopening the debate. If you ask for confidentiality of items in proceedings before the Council, give precise references (item A.5, 'award' file, etc.) and explain in one sentence why disclosure could harm legitimate interests — the Council maintains confidentiality only when it is not necessary for the resolution of the dispute.
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 →