You win because the contracting authority withdraws — but asking for €5,600 gets you €700
Bruxelles-Environnement withdraws its award decision after the Council had already ordered suspension, so CERAA wins the annulment proceedings — but its claim for €5,600 in procedural indemnity (max amount, doubled for suspension + annulment) is reduced to the base amount of €700.
What happened?
On 19 February 2018 the non-profit CERAA filed for annulment of the IBGE (now Bruxelles-Environnement) decision of 13 December 2017 awarding lot 5 ('Sustainable Construction thematic coordination') of a service contract supporting the Brussels Regional Plan for the Circular Economy (PREC) to BDO Management Advisory cvba. The Council had already ordered suspension on 23 January 2018 (judgment 240.511). Bruxelles-Environnement reacted quickly: on 19 February 2018 it withdrew the contested decision and notified all bidders by registered mail of 22 February 2018, mentioning the appeal procedures and time limits. No one filed annulment proceedings against the withdrawal within the statutory period, making it final. The annulment claim therefore became moot, and the suspension ordered by judgment 240.511 had to be lifted. The interesting issue is procedural indemnity. CERAA asked €2,800 for the suspension proceedings and €2,800 for the annulment proceedings — €5,600 in total — invoking the special €2,800 maximum applicable to public-procurement disputes under article 67 § 1 of the procedure regulation. The Council made three separate refusals. First: the disappearance of the contested act through withdrawal is a 'succedaneum' for annulment, so Bruxelles-Environnement is the losing party under article 30/1 of the coordinated Council of State Acts — CERAA does therefore get an indemnity. Second: a double indemnity (one for suspension, one for annulment) requires concrete elements; CERAA provides none. Third: the 20% increase is impossible because article 67 § 2 third subparagraph excludes any increase when the contested act has been withdrawn. Moreover: raising the maximum from €1,400 to €2,800 for public-procurement disputes only affects the maximum, not the base amount. The base remains €700, including in procurement disputes. To exceed the base you must put forward concrete elements — general references to the importance of the case do not suffice. CERAA put nothing forward. Result: €700 procedural indemnity and €400 in other costs to Bruxelles-Environnement. Acting president Imre Kovalovszky chaired, with first auditor Laurent Jans giving a conforming opinion.
Why does this matter?
Many applicants assume that the €2,800 maximum for procurement disputes applies automatically, and that a suspension plus annulment proceedings entitle them to a doubled indemnity. They do not. The base is €700, including in procurement matters. The €2,800 maximum is only reachable if you concretely explain why your case departs from the standard situation — for example by special complexity, scale of procedural work, or extraordinary conduct by the opposing party. A double indemnity (suspension and annulment) likewise requires concrete substantiation. And: as soon as the contracting authority withdraws the contested decision, the 20% increase becomes unavailable. That last rule is a soft pressure on contracting authorities to withdraw quickly after a suspension — they save 20% on the procedural indemnity in addition to avoiding execution damages. For applicants this means that a 'doubled and maximised' claim of €5,600 will almost always be reduced to €700 — unless you actually do the work of substantiating the deviation.
The lesson
If you ask for procedural indemnity after a withdrawal, do not just claim the maximum. Substantiate concretely why €2,800 is justified (complexity, work volume, opposing party's conduct). Claim a double indemnity only if you actually conducted both proceedings and put forward concrete elements explaining why double work warrants double pay. And know that the 20% increase is impossible after withdrawal — do not claim it.
Ask yourself
You are about to ask for the €2,800 maximum procedural indemnity for a procurement dispute. Have you concretely substantiated why your case departs from the €700 base? Without substantiation you will get €700, not €2,800.
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 →