A 'facilitating' agreement with Rotterdam turns out to be a disguised public procurement — no invoice ≠ no procurement
The Port of Antwerp directly concludes a 'storage agreement' with the Port of Rotterdam without any tender, convinced that it merely 'facilitates' for its dredging contractors, but the Council of State holds after almost six years of litigation that the agreement — combined with the related EVOA contract and a €1.2 million guarantee — is in fact a public service contract and annuls the approval.
What happened?
In the procurement 'Deepening dredging Antwerp dock complex Right Bank 4th Dock' (specifications B10133), the Antwerp Port Authority had to dispose of about 85,000 m³ of contaminated dredging spoil — to make jetty 281 accessible for sea-going ships with 14 m draught. The specifications stated that the dredged spoil became the contractor's property, but the Antwerp Port wanted to offer an attractive destination: the Dutch depot 'De Slufter', operated by the Port of Rotterdam. To that end, on 25 June 2013, the Antwerp Port directly signed a 'storage agreement' with Rotterdam (signed by Rotterdam on 31 May 2013), without any tender procedure. By rectifying notice no. 1 of 19 July 2013, that storage agreement was added to the specifications as an annex, with the rule that if the contractor used it, he committed to full compliance — including signing a payment agreement with Rotterdam, observing acceptance protocols and general delivery conditions, and indemnifying the Antwerp Port against all damage. The Antwerp Port also signed an EVOA contract with Rotterdam (April/May 2013) for cross-border waste transport, filed a notification with OVAM, obtained authorisation on 5 August 2013, and posted a €1.2 million KBC guarantee in OVAM's favour. All this to offer the contractor an attractive option — which according to the Antwerp Port would lead to 'an interesting price level'. The SA Silvamo, an interested third party in the waste and storage sector, was given no chance to bid for that storage contract. On 16 September 2013 Silvamo filed annulment proceedings against the Antwerp Port's decision to approve and sign the storage agreement. The case ran in parallel with other proceedings: the dredging works were awarded to bv Martens en van Oord on 14 October 2013, two suspension actions by competing contractors were rejected (judgments 225.728 of 5 December 2013 and 224.496 of 23 August 2013), but the Antwerp Court of Appeal declared the storage agreement non-binding for unperformed obligations on 9 April 2015 — a decision with res judicata force after the Court of Cassation rejected the cassation appeal on 28 April 2017. By judgment 232.753 of 29 October 2015 the Council of State annulled the OVAM authorisation, and by judgment 238.248 of 18 May 2017 it even annulled the award of 14 October 2013 for lack of material capacity. On 17 May 2018 the Twelfth Chamber (judgment 241.510) reopened the debate in the Silvamo case to fully assess the applicability of procurement law to the storage agreement. The Antwerp Port argued that the storage agreement was no public procurement — it provides no services itself, it pays nothing itself, the contractor is free to use 'De Slufter' or not, and the Antwerp Port plays only a 'facilitating' role. Subsidiarily it sought a preliminary reference to the Court of Justice. The Council sees through the structure. First, admissibility: the civil court's non-binding declaration does not deprive Silvamo of standing — that ruling only operates between parties, while a Council of State annulment operates erga omnes and retroactively. Then the merits: article 5 of the act of 24 December 1993 requires a contract for pecuniary interest between a service provider and a contracting authority. The Council holds that the storage agreement together with the EVOA contract meets that definition. Three pillars. One: there is reciprocity. Rotterdam undertakes to receive and process dredging spoil in exchange for a price; the Antwerp Port undertakes to include a payment-agreement clause in the dredging contract so that Rotterdam receives its price — and to indemnify, take-back obligations under the EVOA contract, a €1.2 million guarantee. Two: the Antwerp Port does receive an economic advantage. In judgment 240.797 of 22 February 2018 (about a later 'Hansadok' dredging contract under specifications B10246), the contracting authority itself acknowledged: 'It was the held conviction of GHA that allowing this option made an interesting price level possible.' The Slufter route delivered lower dredging prices — a substantial financial advantage. Three: the Antwerp Port does not disappear from the agreement once the dredging contractor legally commits to Rotterdam. The indemnity clauses in TWB1 and TWB2, the EVOA contract and the KBC guarantee keep the Antwerp Port contractually involved. The Council concludes: in essence it is the Antwerp Port that pays for the Slufter services to Rotterdam, through the dredging contractor. The contractor is 'rather the executor of a storage agreement concluded outside him than an autonomous service provider'. No preliminary reference — it was filed too late (in the third final memorandum) and on a wrong hypothesis (that the Antwerp Port was not the real beneficiary). The branch of the plea is well founded. The Antwerp Port's decision approving and signing the storage agreement is annulled. Defendant bears €175 in costs, intervener Rotterdam €125. No procedural indemnity, because the annulment proceedings predate 2 April 2014 (article 9 RD 28/03/2014). President Dierk Verbiest chaired, with state councillors Pierre Barra and Patricia De Somere; first auditor Jozef Stevens had given a contrary opinion (rare: the Council did not follow the opinion).
Why does this matter?
This judgment has broad impact on every structure where a contracting authority 'facilitates' between its contractor and a third party. The standard defence — 'we don't pay, so no procurement' — is exposed here. To qualify as a public service contract the Council looks through the legal form to the factual and economic reality. Three indicators carry weight: (1) a reciprocal commitment structure (even if the cash flow runs through a third party); (2) a demonstrable economic advantage for the contracting authority (lower prices, watertight execution chain, risk coverage); and (3) continued contractual involvement (indemnity clauses, guarantees, take-back obligations). Contracting authorities working with framework arrangements, partner agreements or 'facilitating' partner deals and assuming no tender is needed because the ultimate payment goes through a third party are running a major risk. For competitors excluded from such a structure — typically niche players like Silvamo — this judgment is a strong precedent. Procedurally important too: a civil court non-binding declaration does not deprive standing for a Council of State annulment, because the res judicata of a civil judgment operates only between parties, while a Council annulment operates erga omnes and retroactively. Moreover: filing a preliminary reference 'subsidiarily' in a final memorandum, when it could have been raised in the rejoinder, leads to dismissal. And finally: this is a rare case where the Council departs from the auditor's contrary opinion — a sign that the Twelfth Chamber wanted to set out a principle.
The lesson
As a contracting authority: do not assume that a direct agreement with a third party is no public procurement because 'you don't pay'. The Council looks at (1) reciprocal commitment, (2) economic advantage to you, and (3) ongoing contractual involvement. Indemnity clauses, guarantees and EVOA contracts remain indicators of substantial involvement. As a competitor excluded from a 'facilitating' structure: file annulment proceedings with the Council of State without hesitation, even if the civil court has already declared the agreement non-binding. The res judicata of a civil judgment operates only between parties — a Council annulment operates erga omnes and retroactively.
Ask yourself
You are a contracting authority signing a direct agreement with a specialised third party (processing depot, designer, care provider) intending your contractor or customer to use it. No tender, because 'you don't pay'. Ask yourself: have I included indemnity clauses? Am I a guarantor? Do I get a measurable economic advantage (lower prices, better execution)? Three yeses = high probability that it is still a public procurement and you should have organised a tender.
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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 →