No annulment filed, but still €920 awarded: how an implicit withdrawal via municipal council deliberation saves Mignone from 'formalisme excessif'
Mignone obtained a suspension against Binche but never filed an annulment — yet still receives €920 in costs because Binche's municipal council deliberation halting the procurement procedure counts as an implicit withdrawal, and the Council holds it would be 'formalisme excessif' to require an additional annulment.
What happened?
On 28 June 2018, the city of Binche awarded a works contract to CO.MA.BAT: the demolition of two houses on rue Saint-Moustier 6-8 and the construction of a new building housing the Lace Promotion Centre (Centre de Promotion de la Dentelle) and two apartments, specification BIN121ANX-742. Mignone, a rejected bidder, received the award decision by email and letter on 29 June 2018. Crucially: that notification did not mention any remedies, forms or deadlines. Mignone still acted quickly: on 12 July 2018 it filed an extreme-urgency suspension application. On 7 August 2018 judgment 242.182 ordered suspension. Then it went quiet. Mignone never filed for annulment. Under the ordinary rule that should have been fatal: article 17, §4(3) of the coordinated laws provides that a suspension is 'immediately lifted if no annulment is filed within the time limit set by the procedural rules'. And because the notification mentioned no remedies, the time limit only began running four months after publication of the act (article 19) — so around the end of October 2018. But meanwhile something unexpected happened. On 1 October 2018, the college of mayor and aldermen of Binche adopted a deliberation deciding 'd'arrêter la procédure de passation du marché public litigieux' — to halt the procurement procedure — adding that the contract could be relaunched later. That deliberation was notified to Mignone on 3 October 2018. The Council analyses it as an implicit withdrawal of the contested award: the contested act is gone, there is no longer an act that could be annulled. On 4 June 2019, Binche requests the lifting of the suspension because no annulment was filed. The Council does lift the suspension (article 17, §4 requires it), but here comes the twist on costs. The Council reasons: would it not be 'formalisme excessif' to require Mignone to file an annulment against an act that the authority itself has already implicitly withdrawn, solely to claim a procedural indemnity? Yes. The implicit withdrawal is a 'succédané d'annulation contentieuse' — a substitute for annulment. Binche is treated as the losing party for cost purposes, Mignone as the winning party. The full €700 procedural indemnity is awarded, plus €200 role fee and €20 contribution. Total: €920 against Binche.
Why does this matter?
This is the most pragmatic judgment in the 245.046 / 245.076 / 245.079 / 245.080 series. It protects the applicant against a double trap: (1) the authority does not mention remedies on the award notification — Mignone did not know exactly which deadline applied — and (2) during that deadline, the authority adopts a council deliberation halting the procedure, without that deliberation being explicitly labelled 'withdrawal'. In such a situation, an applicant wondering 'do I still need an annulment against a procedure that's already halted?' might easily decide not to — and lose the cost order. The Council says: no, you don't need to file that pointless annulment to get your costs, that would be 'formalisme excessif'. For contracting authorities there's a double warning. First: always include remedies, forms and deadlines on your notifications (article 19 of the coordinated laws + article 29bis of the Legal Protection Act). Second: a council deliberation halting the procedure is read by the Council as an implicit withdrawal — with cost consequences. For bid managers this means cost recovery remains possible after a 'halt' decision by the authority, provided you obtained a suspension before that decision.
The lesson
Did you, as applicant, obtain a suspension and the authority then halts the procedure via council deliberation, resolution or similar decision? Two scenarios. Scenario 1: the decision is explicitly notified as a withdrawal, mentioning remedies, forms and deadlines — then it runs as in 245.076 and 245.079: your case loses its object and you receive the €700 base amount. Scenario 2: as here, the decision merely says the procedure is halted, possibly with relaunch option, without a formal 'withdrawal' label. You still get your costs — the Council reads it as implicit withdrawal and applies the 'formalisme excessif' doctrine. In both scenarios: don't file a useless annulment, request costs at the end of the procedure under article 30/1.
Ask yourself
As a rejected bidder receiving a notification without mention of remedies? Flag that immediately: the 60-day annulment deadline only starts running four months after publication (art. 19(4)) — you have six months for annulment instead of two. But don't wait six months to prepare your suspension: extreme urgency must be fast.
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 →