Withdrawing your case isn't always losing — when the contracting authority signs a settlement with 'procedural costs on its account', that can mean the full €1,390
The International Polar Foundation withdrew its annulment action against a Council of Ministers procurement decision after settling, and the Council of State imposes the €840 procedural-cost award plus €550 court costs on the Belgian State — not on the withdrawing applicant.
What happened?
On 24 September 2015 the Belgian Council of Ministers decided to award a public contract for goods and services via negotiated procedure without publication, for logistic support of the Belgian Antarctic campaign BELARE 15-16 at the Princess Elisabeth station. The contract went to ANTARCTIQ BVBA. The International Polar Foundation (IPF) — set up by Alain Hubert and the long-standing operator of the station — disagreed and lodged an annulment action with the Council of State on 23 November 2015. ANTARCTIQ asked to intervene and was admitted by judgment no. 233,043 of 26 November 2015; in the same judgment the suspension request was rejected. The annulment proceedings continued. Almost three years later, on 29 January 2018, all three parties wrote to the Council: a settlement had been reached, all pending disputes between them were closed, and IPF wished to withdraw. The parties had agreed that the 'procedural costs' would remain at the charge of the Belgian State. Auditor Elisabeth Willemart drafted her report, and on 29 October 2018 the VIth Chamber (David De Roy, acting president) accepted the withdrawal. The Council notes: in ordinary withdrawals the withdrawing party bears its own costs. But the special circumstances of this settlement — three parties expressly agreeing the State pays the costs — allow the Council to consider the State as 'in reality the losing party on the merits'. What the parties call 'procedural costs' covers both the actual court costs (registry fees and contribution) and the procedural cost award — confirmed at the hearing. IPF asked for a procedural cost award of €700 plus the 20% increase under article 67 §2 of the procedural regulation. The Council grants this: €840 against the State. On top, the Council orders €550 in other court costs against the State. Total: €1,390 for a withdrawing applicant.
Why does this matter?
A settlement during a pending Council of State case is not lost time for the applicant — the deal can be structured so the contracting authority pays the procedural costs, even if the applicant formally withdraws. This affects negotiation: if you sit down as a bidder or contracting authority to settle an award dispute, the cost allocation is a real subject of negotiation, not an automatism. For contracting authorities: never write 'procedural costs at the charge of the contracting authority' loosely in a settlement protocol without checking what that covers — the Council reads such clauses together with the standard cost rules and the procedural cost award. The bill can grow, especially when there are multiple parties and the case ran for years. For applicants: when the merits look uncertain, a settlement with a clear cost clause can be a respectable exit — not a full win, but procedural costs and registry fees on the contracting authority's account.
The lesson
When you prepare a settlement during pending Council of State proceedings, define the cost clause explicitly: do you mean only the court costs (registry fees and contribution), or also the procedural cost award? In this case the Council read 'procedural costs' as both — €840 + €550 against the contracting authority. For applicants: always expressly request the procedural cost award and apply the 20% increase under article 67 §2. For contracting authorities: a vague settlement clause may cost you more than expected.
Ask yourself
You're negotiating a settlement with a withdrawing applicant in a pending case: have you defined precisely in the settlement protocol what 'procedural costs' covers — only the court costs or also the procedural cost award (with the 20% increase under art. 67 §2)? If the clause reads 'procedural costs' without further specification, the Council will read it broadly.
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 →