Bus shelters for the Brussels transport company: JCDecaux loses the urgency suspension, pursues the annulment — and still wins the costs when STIB quietly withdraws the award sixteen months later
In July 2019 JCDecaux challenged the award by STIB of a framework agreement for shelters to a competitor; the urgency suspension was rejected on 18 July 2019, but JCDecaux pursued the annulment proceedings, and when it emerged that STIB had already withdrawn the award on 27 October 2020 — which it told the Council only on 17 February 2022 — the Council of State found the action without object, treated the withdrawal as definitive despite the absence of notification letters, and placed the costs and a procedural indemnity of 700 euros on STIB.
What happened?
STIB awarded a framework agreement for the supply of shelters to a bidder other than JCDecaux Street Fourniture Belgium. JCDecaux, which did not know the date of the award decision, brought an annulment action on 16 July 2019 and at the same time applied for suspension under extreme urgency. That application was rejected by judgment no. 245.204 of 18 July 2019. JCDecaux did not give up and filed a request to continue the proceedings on 5 August 2019; the reply and rejoinder were exchanged. Only by letter of 17 February 2022 did STIB send the Council a decision of 27 October 2020 by which it had withdrawn the contested award — almost sixteen months after the withdrawal itself. STIB did not produce the letters notifying that withdrawal. The Council held that, in view of the particular circumstances, the time elapsed since the withdrawal and the absence of any action against it, the withdrawal could be regarded as definitive, so that the action had lost its object. The case was dealt with without a hearing on the basis of the report of auditor Muriel Vanderhelst; no party requested a hearing. On costs the Council applied its settled rule: the disappearance of the contested act through withdrawal is a disguised annulment, so STIB counts as the losing party within the meaning of article 30/1 of the coordinated laws. JCDecaux was awarded the requested procedural indemnity of 700 euros; the roll fees of 400 euros and the contributions of 40 euros were placed on STIB. The operative part also states that ‘the suspension ordered by judgment no. 245.204 is lifted’, although according to the procedural history that judgment had in fact rejected the suspension — an inaccuracy without practical consequence.
Why does this matter?
Two things make this judgment worth reading. First, the sequence of events: the urgency suspension failed, but JCDecaux pursued the annulment proceedings — and that proved the right choice. A rejected suspension only means that, prima facie, there was no serious plea or no urgency; the annulment continues, and here STIB ultimately withdrew the award itself. A bidder who drops out after a lost urgency application would, in this case, have missed the costs and the indemnity. Second, the way the Council deals with a withdrawal whose notification is not proven. Normally a withdrawal becomes definitive only once it has been notified to the bidders and no one challenges it within the time limit; the authority proves that with its notification letters. STIB did not produce them, but the Council considered the lapse of time — more than two years between the withdrawal and the judgment — and the absence of actions sufficient. That is pragmatic, but it is a solution for the ‘particular circumstances of the case’, not a free pass: an authority that neither notifies nor documents its withdrawal takes a risk. Finally, it is striking that STIB informed the Council of the October 2020 withdrawal only in February 2022, while briefs were being exchanged in the meantime. That does not change the outcome, but it shows how long proceedings can run over a decision that no longer exists.
The lesson
For bidders: do not treat a rejected urgency suspension as the end. File your request to continue in time and follow the annulment; if the authority withdraws the award in the meantime, you are the prevailing party and recover your costs and procedural indemnity. Also ask the authority expressly whether the contested decision still exists — here the Council did not know for sixteen months that the award had been withdrawn. For contracting authorities: if you withdraw an award while an action is pending, report it immediately to the Council and to all bidders, with proof of notification. The Council gave STIB the benefit of the doubt here, but without notification letters the definitive character of your withdrawal remains open to debate, and you bear the costs of the proceedings in any event.
Ask yourself
After a lost urgency suspension, do you pursue the annulment proceedings or drop the case? Do you know that a withdrawal during the annulment proceedings entitles you — even after a rejected suspension — to the procedural indemnity? As a contracting authority: can you document the notification of every withdrawal to all bidders, and do you report a withdrawal to the Council immediately when an action is pending?
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 →