Not showing up at your own UDN hearing costs you the suspension — but you keep the €700 indemnity
Gilles Moury attacks the award of a military construction project to Wust, Defense withdraws the award two weeks later, but Moury fails to appear at the hearing a year later, which procedurally rejects the suspension — yet she still receives €700 indemnity because the withdrawal had already made the Belgian State the losing party.
What happened?
On 1 December 2017 the Belgian State — through the Minister of Defense — awarded a contract to the SA Établissements Jean Wust for the construction of a new office and sanitary building (bloc Compagnie) and works on an existing sports hall (E13) at the military Camp adjudant Brasseur in Amay. The contract was placed via open tender under article 81 § 2 1° of the act of 17 June 2016 and title 2 of the RD of 18 April 2017. On 13 December 2017 SA Les Entreprises Gilles Moury filed an extreme-urgency suspension. The hearing was set for 9 January 2018, and on 20 December 2017 Wust filed for intervener status — granted as the awardee. Two days later — 22 December 2017 — Defense itself decided to withdraw its own award. The withdrawal was posted on 9 January 2018 and notified to Wust by registered mail. By letters of 5 January 2018 the hearing was postponed sine die. Wust did not seek annulment of the withdrawal within the period, so the withdrawal became final. Almost a year later — 6 December 2018 — the case was rescheduled for 19 December 2018. At that hearing Moury did not appear, neither in person nor through counsel. Defense sent captain Mathieu Fontaine; Wust appeared through counsel Hani Madani (loco Horemans and Fievez). Article 4 third subparagraph of the RD of 5 December 1991 on the référé procedure now kicks in: 'If the applicant is neither present nor represented, the suspension request is rejected.' The Council applies it mechanically — the UDN action is rejected. But the procedural indemnity follows different logic. The Council recalls that the contested decision had already been withdrawn on 22 December 2017 and that the withdrawal had become final. The withdrawal is a 'succedaneum' for annulment, so Defense — not Moury — is the losing party under article 30/1. Defense invoked nothing to reduce the amount. Moury asked €700 and got it. The other costs (€350) are split: €200 on Defense, €150 on Wust for the intervention. End result: an applicant who skipped the hearing loses the suspension but wins the costs — a paradox that only works because the contracting authority had withdrawn long before. President Imre Kovalovszky chaired.
Why does this matter?
Two separate rules cross paths here. The first — article 4 third subparagraph of the RD of 5 December 1991 — is mechanical: not appearing at your UDN hearing means rejection of the suspension. No 'second chances', no 'maybe a good reason' — rejection. For law firms stacking UDN actions this is a real risk: an agenda mix-up or no-show costs the procedural win you could have had. The second rule — article 30/1 of the coordinated Council of State Acts — looks through the procedural outcome to the factual evolution. If the contested act has been withdrawn in the meantime, the contracting authority is already the losing party, even if the suspension is rejected on procedural grounds. That separates the procedural outcome (rejection) from the financial outcome (indemnity). For applicants this means: even a blunder at the hearing does not cost you the procedural indemnity when the contracting authority has itself withdrawn its decision. For contracting authorities the message is: an early withdrawal also closes the financial discussion, regardless of how the opposing party behaves further in the proceedings. The intervener (the awardee) bears their own intervention costs — a fixed rule.
The lesson
A UDN action requires absolute presence at the hearing (in person or through counsel). Not showing up = mechanical rejection under article 4 third subparagraph of the RD of 5 December 1991. But if the contracting authority has already withdrawn the contested decision, you are financially protected anyway: €700 indemnity is granted, because the authority is then the losing party. Separate the procedural outcome from the financial outcome — they follow different logic.
Ask yourself
You filed a UDN action and the contracting authority has meanwhile withdrawn. Can you skip the hearing without consequences? Answer: not for the suspension — that is mechanically rejected for absence. But yes for the indemnity — you still get it, because the withdrawal makes the contracting authority the losing party.
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 →