A 'public lease' is not a public contract: the Vandeputte brothers run into the law's scope
The Council of State dismisses the request for suspension under extreme urgency against a public agricultural lease by the Ieper PCSW (OCMW) because the Public Procurement Act does not apply — the lenient 'urgency presumption' of the Legal Protection Act 2013 is reserved for procurement and concessions above the European threshold.
What happened?
On 1 April 2019, the council of the Public Centre for Social Welfare (PCSW/OCMW) of Ieper decided to publicly lease, in two lots, agricultural parcels in Vlamertinge whose previous leases had ended — lot A of 12 ha 19 a 26 ca and lot B of 15 ha 48 a 88 ca, all in the 12th division, section A of Ieper. The lease offer was advertised by on-site posters, publications and registered letters to neighbouring owners and users. Among them: brothers Bernard and Johan Vandeputte, who had earlier bought a farmstead at Poperingseweg 332 in Vlamertinge from the same PCSW. By letter of 6 May 2019 the PCSW informed them of the lease, attaching the conditions and the application form. The brothers applied on 20 June 2019 for both lots. On 28 June the applications were opened: 19 for lot A, 18 for lot B. On 19 August 2019 the standing bureau of the PCSW decided: lot A went to F.V. (provided he agreed to terminate a lease on another parcel by mutual agreement), lot B went to the Vandeputte brothers. Both lots were granted a long lease of 27 years under article 8, §2 of the Tenancy Act, starting 1 September 2019. The brothers had wanted lot A as well and saw the award to F.V. as an implicit refusal to themselves. On 3 September 2019 they filed a request for suspension under extreme urgency. To establish urgency they relied entirely on article 15 of the Legal Protection Act 2013, claiming this freed them from having to prove urgency with concrete facts — a serious plea or manifest illegality would suffice. The Council struck through that argument. Article 3 of the 2013 Act limits its scope to public contracts, qualification systems and dynamic purchasing systems under the Public Procurement Act, and to concessions under the Concessions Act, in each case above the European threshold. The lease of agricultural land by a public administration falls under the Tenancy Act of 4 November 1969. Under article 2, 17° of the 2016 Procurement Act, a 'public contract' is a contract for pecuniary interest concerning works, supplies or services. The applicants did not show that a lease falls within that definition. They did not even claim it was a concession. The fact that the lease was awarded by 'public procedure' under article 18 of the Tenancy Act relates only to the open competitive nature of the award, not to its legal qualification. With the Legal Protection Act inapplicable, the applicants had to substantiate urgency with precise and concrete facts in their introductory request — which they did not. The Council dismissed the request and ordered the brothers to pay a court fee of €400, a contribution of €40 and procedural costs of €700.
Why does this matter?
The Legal Protection Act offers an important advantage for procurement complainants: once the Act applies, urgency no longer needs concrete facts — a serious plea is enough. But that advantage is strictly limited to the scope of the Procurement Act and the Concessions Act. Leases, public sales, permit applications and similar 'public procedures' by the administration fall outside that scope, even though they may resemble a tender procedure. Anyone seeking to suspend such a decision must fall back on the standard rule: prove urgency with precise facts and figures (what concrete harm, what irreversibility, what time window). For lawyers and bid managers handling a broader case mix, this judgment is a reminder always to check the scope first before leaning on a more lenient burden of proof.
The lesson
If you want to suspend a public-authority decision via extreme urgency: first check whether the 2013 Legal Protection Act applies. Ask yourself: does the contested decision concern a public contract (works, supplies, services) or a concession above the European threshold? If the answer is 'no' — for example a lease, public sale or other administrative act — you must prove urgency the ordinary way, with concrete facts in your introductory request: precise figures, dates and the threatened irreversibility.
Ask yourself
Before lodging a request under extreme urgency: tick which qualification the contested decision has (public contract / concession / lease / permit / other). Only the first two, above the European threshold, allow you to rely on article 15 of the 2013 Act. Otherwise, include a paragraph with concrete urgency facts in your request.
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 →