Lost your extreme-urgency appeal? Don't forget to request continuation, or the annulment procedure dies on its own
After the Council of State on 25 January 2018 dismissed ABO's extreme-urgency appeal against a framework agreement of De Vlaamse Waterweg, ABO forgot to file a request to continue — result: presumption of abandonment and EUR 900 in costs.
What happened?
On 12 December 2017 De Vlaamse Waterweg awarded a framework agreement for environmental hygienic research under Vlarebo, Vlarema and Vlarem services (specification AAO-D-MHO-17-43). NV ABO disagreed and on 22 December 2017 went to the Council of State with two actions: an extreme-urgency suspension appeal and an annulment appeal against the award. On 25 January 2018 the Council dismissed the extreme-urgency appeal in judgment 240,574. ABO received notification on 26 January 2018. From that date, a 30-day period started during which ABO had to actively request the continuation of the annulment procedure — as prescribed by article 17, §7 of the coordinated laws on the Council of State. ABO did nothing. On 19 April 2018 the chief clerk — at the request of the auditor's office — sent a notification to ABO under article 11/3, §1 of the Regent's Decree of 23 August 1948. This notification gives the applicant a chance to be heard before the abandonment is formally established. Again ABO did nothing: it did not request a hearing. On 11 September 2018 the Council of State formally establishes the abandonment of the proceedings. The presumption from article 17, §7 — applicable when no continuation request is filed within 30 days of a dismissed suspension appeal — applies. ABO is ordered to pay the costs: EUR 200 court fee and EUR 700 procedural compensation to De Vlaamse Waterweg. Intervening party MAVA AES bears its own EUR 150 intervention fee. Total bill for ABO: EUR 900 for a procedure that was never legally examined on the merits.
Why does this matter?
The article 17, §7 procedure is a procedural trap for bidders who rely only on the extreme-urgency appeal to challenge an award. Whoever loses in extreme urgency must, within 30 days, actively request to continue the annulment procedure — otherwise the entire procedure is deemed abandoned, with additional costs. This is not a passive trap: bid managers and their lawyers must strictly monitor the 30-day deadlines after the extreme-urgency ruling. A missed deadline = procedure lost, regardless of how strong your substantive arguments may be.
The lesson
If you file a dual action (extreme-urgency suspension + annulment appeal) and your extreme-urgency appeal is dismissed: immediately set a reminder in your calendar for 30 days after notification. Within that period, decide whether you want to continue on the merits or consciously abandon. If continuing: file an explicit 'request to continue'. No action = abandonment + opposing party's costs.
Ask yourself
Have you lost an extreme-urgency appeal in the past three months? Check today whether a continuation request was filed within 30 days of notification of the judgment. If not: your annulment procedure on the merits is presumably already lost, regardless of how strong your file was.
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 →