When a court president strikes you off the list of sworn translators, he effectively excludes you from public contracts — but the Council of State itself is not sure it has jurisdiction
On 25 July 2014 the President of the French-speaking Brussels Court of First Instance strikes translator Benhachem off the informal list of sworn translators; after a first suspension judgment, a cassation and a referral, the Council of State now refers three preliminary questions to the Constitutional Court — is a striking-off from such a list a 'public-procurement act' or not?
What happened?
On 25 July 2014, the President of the French-speaking Brussels Court of First Instance decides to remove Ms Nadia Benhachem from the informal list of sworn translator-interpreters kept by the registry of that court. The reasoning accuses her of giving 'very nebulous explanations' about how she fills her role, of being a manager of her own company (BVBA SARIAA) and of charging 'unnecessary travel expenses'. Benhachem and SARIAA file an annulment action with extreme-urgency suspension before the Council of State on 19 September 2014. By judgment n° 229.577 of 16 December 2014 the Council suspends the striking-off and the implicit decision to bar sworn translators from one judicial district from working in another. By judgment n° 230.028 of 29 January 2015 a request for penalty payments is rejected. Then the Belgian State appeals in cassation: by judgment C.15.0043.F of 29 September 2017 the Court of Cassation quashes the suspension judgment. The reasoning is strict: a 'public-procurement act' within the meaning of article 14 § 1 paragraph 1 2° of the coordinated laws on the Council of State is an act that, emanating from a contracting authority or for its account, directly or indirectly aims at the conclusion of a contract for valuable consideration with a contractor, supplier or service provider. The decision of a court head to remove a translator from the list of persons recognised at his court does not meet that definition. The case is referred back to the Council of State, differently composed. In the present judgment 244049 (XIth Chamber, presiding Colette Debroux) the Council wrestles with a fundamental difficulty. Cassation took the strict view, but the Council does see an oddity: the acts by which a contracting authority WANTS to conclude a contract can be challenged before the Council, while the acts by which the same authority EXCLUDES a potential bidder from future contracts (by striking off a list) cannot. Moreover, article 26 of the Special Act on the Constitutional Court obliges the Council, when in genuine doubt, to refer preliminary questions when parties expressly so request. The Council therefore does so: it stays its examination and submits three questions to the Constitutional Court. (1) Does article 14 § 1 paragraph 1 2° of the Council of State Act violate articles 10 and 11 of the Constitution if interpreted as not including in 'public-procurement acts' the striking-off of a translator from a list (from which the contracting authority selects its providers), while the acts by which the authority intends to conclude a contract are open to challenge before the Council? (2) Does the Public Procurement Act of 15 June 2006 violate articles 10 and 11 if interpreted as applying to a contracting authority that designates a translator or sets up a list, but not to a body of the judicial power doing the same? (3) Does the same Act violate those articles if interpreted as obliging all contracting authorities under article 2, 1°, a) and d), to organise a tender for translation services, except a court president or other body of the judicial power? The Council notes that it is not convinced of the relevance of questions 2 and 3 — the Procurement Act binds EVERY contracting authority, including a body of the judicial power — but must still refer them because the parties so demand. Decision: the proceedings are stayed, three preliminary questions are referred to the Constitutional Court, costs are reserved.
Why does this matter?
Many contracting authorities maintain 'lists of approved suppliers' — sworn translators, medical experts, lawyers, court experts, cleaning firms for emergencies. Being struck from such a list means losing not just one contract but access to a whole stream of future contracts. This judgment exposes a delicate legal gap: against an individual award decision you can apply to the Council of State, but against the striking-off from the list that precedes it, the Council itself does not yet know whether it has jurisdiction. The Constitutional Court will have to decide whether that asymmetry breaches equality and non-discrimination. In the meantime: if you are struck off a list, file proceedings simultaneously before the ordinary courts AND before the Council of State — one of them will be found competent and the deadlines run for both.
The lesson
If your company sees a striking-off from a 'list of approved suppliers' or 'rated supplier group' coming, expressly request the reasoning and keep every e-mail or meeting record where your work was recognised as satisfactory. If you are actually struck off: have your lawyer file proceedings in parallel before the Council of State (annulment + extreme-urgency suspension) AND before the ordinary courts (interim relief or main action), until it is clear which court has jurisdiction. The Council of State has been wrestling with this question since 2014 and the first interpretation is still on shaky ground.
Ask yourself
Is your company on a 'list of approved suppliers' kept by a contracting authority (court experts, sworn translators, medical experts, legal advisers, emergency cleaning, …)? Do you have an objection procedure ready in case of sudden striking-off — including a decision on which court you would address?
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 →