Withdrawing your award decision to dodge a suspension judgment still costs you €1,500 — to the Council you remain the losing party
The Council of State holds that the action has lost its purpose because Etterbeek itself withdrew the contested non-selection decision, but still orders the municipality to pay €700 procedural cost award plus €800 court costs — because withdrawal is treated as a substitute for annulment — and refunds €800 to the bidder who had paid the registry fees twice.
What happened?
The municipality of Etterbeek ran a service procurement for a study contract: the renovation of a Chapel and the layout of multipurpose rooms on the Site des Jardins de la Chasse. Four parties — Nicolas Gyömörey, André Dupont, G.E.I. Techniques Spéciales NV and G.E.I. Génie Civil NV — formed a temporary association under the name 'DDGM Architectes Associés / GEI TS / GEI GC' and submitted a bid. On 31 August 2017 Etterbeek took three connected decisions: the temporary association was not selected and its bid rejected; the contract was therefore not awarded to it; and the contract was awarded to a third party, at that point not yet identified. The three decisions were notified only on 22 September 2017. The temporary association filed an extreme-urgency suspension request with the Council of State on 9 October 2017. By oversight the registry of the applicants paid the registry fees twice on 23 October 2017 — €800 too much. The case was set for 24 October, then adjourned sine die. Then, on 19 October 2017, Etterbeek itself adopted a new decision withdrawing its contested decision of 31 August. The withdrawal was notified to all bidders by registered mail on 8 November 2017. But the notification did not mention the available remedies, forms or time limits — which under article 35/1 of the Royal Decree of 22 March 2007 means the 60-day annulment period only starts running four months after notification. No bidder lodged an annulment action against the withdrawal within that extended period. The withdrawal therefore became final and the original action lost its purpose. On 9 November 2018 — more than a year after the withdrawal — the VIth Chamber sitting in summary proceedings (David De Roy, acting president) ruled. No more ruling on the merits, but a ruling on costs. The Council restates its settled case-law: the disappearance of the contested decision through withdrawal by the contracting authority is a 'substitute for an annulment in litigation'. The contracting authority is then deemed to be the losing party in the proceedings, and the applicants the winning party — within the meaning of article 30/1 of the coordinated laws on the Council of State. Etterbeek raised no element justifying any reduction of the procedural cost award, so the Council awards the requested €700 in full — split into €175 per applicant. The other court costs, liquidated at €800, also fall on Etterbeek. The Council further orders the refund of the €800 the applicants had paid in error to the Federal Public Service Finance.
Why does this matter?
For contracting authorities this judgment is a sober reminder of a misconception that lives on in practice: 'if I withdraw my decision before the judgment, I avoid being condemned'. In civil logic that works, but not before the Council of State. A unilateral substantive withdrawal is treated as equivalent to an annulment, and the contracting authority then bears both the procedural cost award (base €700) and the court costs (registry fees + Council's contribution, €800 here). For applicants the judgment is reassuring: an action declared technically without purpose is not a lost cause for cost recovery — the Council awards the same indemnity as if you had won on the merits. A second lesson for contracting authorities lies in notification: a withdrawal notified without mention of the remedies, forms and time limits only becomes vulnerable to a real expiration of the appeal period four months later. To make the withdrawal 'final' you must notify it correctly — otherwise the case stays open for almost six months.
The lesson
If, as a contracting authority, you are considering withdrawing a contested award decision to dodge a judgment: do it only after accepting that you will bear the other party's procedural costs — minimum €700 procedural cost award plus court costs (typically €200-€800). And make sure the withdrawal is notified correctly with mention of the remedies and time limits — otherwise it is only final after four months plus sixty days. For applicants: always expressly request the procedural cost award in your application, even if the case may lose its purpose — without that request you get nothing.
Ask yourself
As a contracting authority you decide to withdraw a contested award decision: have you (1) factored in that you will bear the other side's procedural cost award and court costs, and (2) when notifying the withdrawal explicitly mentioned the remedies, forms and time limits so that the 60-day appeal period starts immediately?
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 →