A withdrawn decision makes your action moot — but the contracting authority still pays 1,840 euro in costs
The Council of State declares Haezebrouck's annulment action against its non-selection for three lots of mowing and clearing works to be without object because Westkustpolder withdrew the contested decision in the meantime — but the polder bears the full procedural costs for both the successful suspension and the annulment action, totalling 1,840 euro.
What happened?
Westkustpolder, a 'polder' authority managing water systems in several coastal municipalities, tendered for fiscal year 2021 three separate works contracts for mowing and clearing of non-navigable second-category waterways, public ditches and roadside ditches. The three lots each covered a combination of West Coast municipalities: lot 1 for Alveringem, De Panne, Lo-Reninge and Veurne; lot 2 for De Panne, Diksmuide, Nieuwpoort and Veurne; lot 3 for Alveringem, De Panne, Lo-Reninge and Veurne (parts). On 16 December 2020 Westkustpolder decided that contractor Haezebrouck would not be selected to participate in any of these three contracts. Haezebrouck filed for extreme-urgency suspension and won: judgment no. 249.967 of 4 March 2021 suspended the non-selection decision. On 17 March 2021 — the very same day Haezebrouck filed its annulment action — Westkustpolder withdrew the contested decision. From that moment the contested administrative act had legally ceased to exist. Auditor Frederic Eggermont produced a report under Article 93 of the Regent's decree. On 1 December 2021 chamber president Paul Lemmens (XIIth chamber) proposed handling the case in writing; no party requested a hearing. On 14 February 2022 the Council records the obvious: the contested decision has been withdrawn, the action is moot. The case is rejected. But the cost order is decisive: because Westkustpolder withdrew its own decision — an implicit admission that something was wrong — it carries the full procedural costs. Haezebrouck is awarded 400 euro roll fee, 40 euro contribution and 1,400 euro procedural indemnity, totalling 1,840 euro.
Why does this matter?
This is the mirror image of judgment 252.983 (Alfa-Zet/VDAB), pronounced the same day, by the same chamber president (Paul Lemmens, XIIth chamber). Two applicants in nearly identical situations: extreme-urgency suspension won, decision later withdrawn by the contracting authority. One critical difference. Haezebrouck filed an annulment action in addition to the suspension. Alfa-Zet did not. The financial difference is 1,620 euro — Haezebrouck collects 1,840 euro in costs, Alfa-Zet only 220 euro (roll fee + contribution, no procedural indemnity). For bid managers on an SME budget that is a meaningful number: the annulment action costs a few hundred euro extra in roll fees but in this kind of situation generates at least 1,400 euro in procedural indemnity. Second lesson: Westkustpolder did not get a chance to argue the merits because it withdrew its own decision — a tactic that looks short-term attractive (no annulment on the record) but in practice still produces the cost order a regular annulment would. For contracting authorities the budgetary lesson is: withdrawing a controversial decision after a successful suspension is not free. Third, more technical lesson: here the contested decision was withdrawn on the very day the annulment action was filed (17 March 2021). The action is nevertheless validly filed, and costs are awarded.
The lesson
Did you win an extreme-urgency suspension? File the annulment action too, even if you expect the authority to withdraw its decision. It costs you a few hundred euro extra in roll fees but, when the case becomes moot through withdrawal, it generates a procedural indemnity of 1,400 euro. For contracting authorities: be aware that withdrawing a controversial decision after a successful suspension still triggers a full cost order — better to motivate carefully up front than to retreat 'quickly' afterwards.
Ask yourself
You won an extreme-urgency suspension on a non-selection or award. Before deciding whether to also file annulment: do the math. Roll fee for the annulment action + lawyer's fees ≈ 600-1,500 euro. Expected procedural indemnity in case of withdrawal or annulment = 1,400 euro (basic amount for proceedings on the merits). Unless your lawyer's fees are exorbitant, the balance is usually positive.
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 →