A concession with no written criteria can still be annulled four years later — even when the defendant doesn't bother to fight back
The Council of State annuls, via the abbreviated procedure, two decisions of the City of Dinant distributing quays and boat moorings on the Meuse between tourist boat operators, because no selection criterion or reason was ever formulated — and the City didn't even ask the procedure to continue.
What happened?
Compagnie des croisières mosanes operates tourist boat tours on the Meuse in Dinant. In April 2018 it receives a letter from the City of Dinant informing it that the City has distributed the quays and moorings on the Meuse among Dinant's tourist boat operators. Concretely, the company gets quays 1 and 2 and moorings E1 and E2; the more attractive locations go to its competitors. The letter also refers to an earlier 'decision' supposedly taken 'at the time of the reception of the Croisette construction site' — a decision that was never put on paper. On 7 June 2018 the company files two parallel annulment actions: one against the 18 April 2018 attribution decision, one against the unformalised 'original distribution'. The core plea — identical in both cases — has two branches: (1) the concessions were granted without any objective criterion respecting equal treatment, and even if criteria existed they were never communicated; (2) the contested acts have no formal motivation whatsoever, in breach of the Belgian Formal Motivation Act of 29 July 1991. First auditor Christian Amelynck writes a scathing report: 'the first contested act is totally devoid of motivation. No selection criterion is set out, and no factual or legal reason supports the decision. It is therefore manifestly unlawful. The same applies a fortiori to the second contested act.' On 26 July 2021 he asks for application of Article 14quinquies — the procedure under which the Council can declare the action well-founded if the respondent fails to request continuation within 30 days. The municipality does not react. It does not request continuation, files no last brief, doesn't even ask to be heard. Acting president Florence Piret only needs to check two things: are the actions admissible, and is the plea founded? On admissibility: the City tried to argue that the company wasn't really aggrieved (it did get something), but the Council dismisses this — the action targets the attribution as a whole, including the part that went to the competitors, and the company is therefore properly aggrieved. As for the unformalised 'original decision': the fact that it was never put on paper is irrelevant. It produced definitive effects on the distribution and remains a challengeable administrative act under Article 14, §1 of the coordinated laws. On the merits: the Council fully embraces the auditor's report. The cases are joined, both acts annulled, and the City pays costs — 400 euros roll fees, 40 euros contributions, and two procedural indemnities of 700 euros each (because the joining only happened at the very end of the procedure). A defeat in silence.
Why does this matter?
Many local authorities and autonomous municipal companies still believe that a concession of public domain — a terrace, an ice cream cart, a market stall, a boat mooring — is not a 'real' public contract and can simply be granted on the basis of historical use or familiar relationships. This case shows that this approach does not work. As soon as multiple candidates compete for a scarce public asset with economic value, the general principles of administrative law — equality, transparency, motivation — apply just as fully as in a classic award decision. For bid managers and commercial operators on the receiving end the lesson is the mirror image: if you were not served (or were served worse) in a concession allocation and you have never received a written criterion or reason, that alone is a procedural ground for annulment. For contracting authorities there is a third, underrated lesson: ignoring an auditor's report is not a clever tactic but a form of self-surrender. Article 30, §3 and Article 14quinquies exist precisely to dispatch undefended cases quickly — and that has cost consequences.
The lesson
If you grant a concession that several candidates compete for — quays, terraces, market stalls, parkings, moorings, weekly markets — write the selection criteria up front, communicate them, and motivate the individual award decision in writing. 'We've always done it this way' is not a legal ground in 2026 — and wasn't in 2018 either. If you are an operator and you find yourself worse off without ever having seen a single written criterion: that alone is enough to seek annulment.
Ask yourself
Last year you granted a concession (terrace, market spot, mooring, parking, stall) to operator A rather than to operator B who was also a candidate. Can you, today, write on a single page which criteria you applied, how you scored both candidates against them, and why A wins? If not, your decision is ripe for annulment.
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 →