An amicable settlement during a document-access procedure: mutual waiver of procedural costs is valid, but the EUR 200 filing fee stays with the withdrawing party
The Council of State records Energys' withdrawal after it reached an amicable settlement with the municipality of Habay-la-Neuve over the refused communication of tender documents for a biomass district-heating contract — a mutual waiver of procedural costs is accepted, but the EUR 200 filing fee remains payable by the withdrawing party.
What happened?
The municipality of Habay-la-Neuve issued a tender for the design, construction and maintenance of a centralised biomass boiler with district heating network. Energys SA, a Liège-based energy company, asked for access to the tender documents. The municipality refused twice: on 3 August 2017 and again on 22 August 2017. On 4 September 2017, Energys filed an annulment action with the Council of State against both refusal decisions. The municipality submitted its memorandum in response. First auditor Christian Amelynck drew up a report. Then something unusual happened. On 26 January 2018 Energys' counsel sent a letter to the Council: his client was withdrawing the appeal. This was not a unilateral retreat — a deliberation of the municipal college of Habay-la-Neuve dated 8 January 2018 showed that an agreement had been reached between the parties, with as core clause a 'mutual waiver of procedural costs' ('renonciation réciproque aux dépens de la procédure'). The case still came to the hearing of 24 April 2018. The municipality, in its memorandum, was still asking for a EUR 700 procedural indemnity. The Council reasoned: by withdrawing, the municipality is formally regarded as the party 'having obtained satisfaction' under article 30/1 of the coordinated Council of State Acts. But because the municipality had itself, in its college decision of 8 January 2018, agreed to a mutual waiver of procedural costs, it can no longer claim that indemnity. So no EUR 700. Still payable: the 'dépens d'introduction' — the filing costs of the petition, set here at EUR 200. Despite the amicable settlement, these remain on the account of the withdrawing party (Energys).
Why does this matter?
For bidders and third parties litigating to access tender documents — for example after an award decision or during a transparency dispute — this judgment shows how an amicable settlement plays out procedurally before the Council of State. The mutual waiver of procedural costs is a valid and binding element of an out-of-court settlement, but must be properly documented: here it helped that the municipal college had taken a formal deliberation recording the agreement. Without such proof, the Council would have granted the standard procedural indemnity. For contracting authorities considering an amicable settlement during a procedure: be careful with wording. A 'mutual waiver of procedural costs' (renonciation réciproque) as here prevents you from later claiming a procedural indemnity from the Council. To preserve that option, exclude it expressly in the agreement. For a clean amicable settlement, the mutual waiver is the simple solution. What remains payable by the withdrawing party despite any amicable settlement: the 'dépens d'introduction'. In this file, EUR 200. This is a statutory amount linked to the filing of a petition that cannot be wiped out by a private agreement. Account for it when drafting your settlement — the withdrawing party must plan for it. The substantive question — was the municipality entitled to refuse access to the tender documents? — is not decided here. The judgment offers no case law on that point. Anyone with similar questions must consult other rulings on freedom of administrative information and transparency in public procurement.
The lesson
When you reach an amicable settlement during a Council of State procedure, document the agreement in writing — preferably via a formal deliberation where the party is a public authority. The 'mutual waiver of procedural costs' clause is valid and binding, but does not erase the standard 'dépens d'introduction' (EUR 200): those remain payable by the withdrawing party. To retain the option of later requesting a procedural indemnity, exclude it expressly in the wording of the agreement.
Ask yourself
You are considering an amicable settlement with the opposing party in a Council of State procedure. Have you (1) documented the agreement in formal terms (college decision for authorities), (2) made it clear whether the mutual waiver of procedural costs also covers the procedural indemnity, and (3) factored in that the 'dépens d'introduction' (~EUR 200) remain payable by the withdrawing party?
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 →