A university-college non-profit applying public procurement law does not thereby become an 'administrative authority' — the Council of State has no jurisdiction
ITZU Cleaning went to the Council of State because its rejection letter said so, but UC Leuven and UC Limburg are private non-profits without unilateral binding decision-making power towards third parties — the Council has no jurisdiction, although UCLL is ordered to pay the costs because it misled the applicant.
What happened?
In July 2018 UC Leuven vzw and UC Limburg vzw — together 'UCLL', the university-college federation — launched a European open procedure for the cleaning of their buildings. The contract (specifications 2018/08) was divided into twelve lots and published in the Bulletin des Adjudications on 5 July 2018 and in the OJEU on 7 July 2018. The opening took place on 14 September 2018. On 22 October 2018 UCLL awarded: lots 1, 2, 3, 4, 5, 6 and 9 to BVBA 4CPM, lots 7, 10, 11 and 12 to Köse Cleaning NV, lot 8 to Kleen Daily BVBA. ITZU Cleaning got nothing and was notified on 22 October by registered post and email. The notification contained a striking sentence: 'This may take place exclusively via an extreme-urgency procedure before the Council of State', with the registry's address. On 6 November 2018 ITZU filed an extreme-urgency application before the Council of State. The respondents immediately raised an exception: the Council has no jurisdiction, because UCLL — two non-profit associations — are not 'administrative authorities' within the meaning of article 14 §1 of the consolidated laws on the Council of State. The XIIth chamber (Pierre Barra, acting president) takes up the exception and confirms two settled Court of Cassation rulings: 14 February 1997 and 10 June 2005. The criterion: institutions established or recognised by the public authorities, charged with a public service, are administrative authorities only insofar as they can take decisions that unilaterally bind third parties — unilaterally setting their own obligations towards others, or unilaterally setting the obligations of those others. A company or non-profit entrusted with a task of general interest, even under heavy public oversight, retains its private-law character so long as it lacks that unilateral binding decision-making power. UC Leuven and UC Limburg are non-profits whose purpose is to organise higher education. An award decision for cleaning services is not a decision that unilaterally binds the bidders — it is a contract-forming act under ordinary law. The fact that UCLL applied the 17 June 2016 Public Procurement Act when placing the contract does not make it an administrative authority: that Act also applies to private persons qualifying as 'contracting authorities' under the procurement definition without acquiring administrative-law status. A defective notification — UCLL's incorrect reference to the Council of State as 'exclusively' competent — cannot create jurisdiction where none exists. The application is inadmissible. But ITZU was 'misled' by that incorrect reference. UCLL is therefore ordered to bear half each of the costs of the application (€200 court fee + €20 contribution), and the intervener 4CPM is ordered to bear the costs of its intervention (€150 court fee). However ITZU receives no procedural cost award, because it is not a 'successful party' under article 30/1 — it brought the case before the wrong forum. As for 4CPM, article 30/1 last paragraph applies: an intervener cannot itself claim a procedural cost award.
Why does this matter?
Not every contracting authority under the public procurement act is also an administrative authority for the Council of State. The definition of 'contracting authority' in article 2 of the 17 June 2016 Act is broader than the administrative-law concept of 'administrative authority' in article 14 §1 of the laws on the Council of State: a private non-profit performing a publicly-funded service of general interest (higher education, hospital care, non-profit social housing) may fall under the procurement rules without qualifying for the administrative dispute forum. This is a tricky grey zone that regularly trips up bidders in practice. For bidders: before filing an extreme-urgency application, check (1) the legal form of your contracting authority, (2) whether it has unilateral binding decision-making power towards third parties, and (3) whether its award decision is itself such a binding unilateral act or rather a contract-forming act. When in doubt: file in parallel before the ordinary court (summary proceedings) and the Council of State to avoid losing time. For non-administrative-authority contracting bodies: write the correct legal route in your rejection letter — the ordinary civil court in summary proceedings — not 'exclusively the Council of State', because that mistake will cost you the procedural costs.
The lesson
Before filing an extreme-urgency application before the Council of State, check three things: (1) the legal form of the contracting authority — municipality, region, federal authority, ION = administrative authority; non-profit, private company, autonomous business chamber = grey zone; (2) the Court of Cassation case-law on the concept 'administrative authority' (Cass. 14/02/1997 and 10/06/2005); and (3) what the rejection letter says about remedies — if it mentions only the Council of State, that may be a mistake you'll pay for in time, but at least you can pass the procedural costs back to the contracting authority. When in doubt: file in parallel before the ordinary court and the Council of State.
Ask yourself
On Friday you receive a rejection letter from a non-profit university college. The letter states that you can challenge it 'exclusively' via an extreme-urgency application before the Council of State. Three checks before you rush: (1) Is this non-profit charged with a public service AND can it take unilaterally binding decisions towards third parties? (For non-profit education institutions usually: no.) (2) What does Court of Cassation case-law say about your type of contracting authority? (3) Is there a parallel route via summary proceedings before the ordinary court? If the answer to (1) is negative, take the summary-proceedings route — the Council of State will dismiss for lack of jurisdiction, even if you followed the rejection letter.
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 →