A police board may not itself adopt the specifications for a four-year framework agreement: without appropriations entered in the ordinary budget, the police council remains competent
The Polbruno police zone let its police board, under a delegation from the police council, choose the open procedure and set the conditions for a 48-month framework agreement for vehicle spare parts; the Brussels supervisory authority refused to approve that decision for lack of competence, and the Council of State confirmed that article 33, § 2 of the Integrated Police Act allows a delegation only for contracts whose appropriations are already entered in the ordinary budget — which is ‘hard to reconcile’ with a multi-year contract, however impractical the zone found that reading.
What happened?
On 12 February 2019 the police council of the Schaerbeek-Evere-Saint-Josse-ten-Noode zone (Polbruno) delegated to the police board the power to choose the award procedure and set the conditions of public contracts falling under the ordinary budget, and of contracts based on a concluded framework agreement. On 16 May 2019 the police board, relying on that delegation, decided to conclude, by open procedure, a four-year framework agreement with one contractor per lot for the supply of spare parts for the zone's vehicles. On 29 May 2019 the Brussels supervisory authority indicated that the period for ruling on the delegation decision itself had expired, but immediately pointed out that the delegation option in article 33, § 2 of the Act of 7 December 1998 (as inserted by the Act of 1 March 2019) is ‘very restrictive’ and strictly construed: it requires that the appropriations be entered beforehand in the ordinary budget. On 1 July 2019 the Minister-President of the Brussels-Capital Region, responsible for local authorities, refused to approve the decision of 16 May 2019. The reasoning: the contract runs for 48 months, well beyond one budget year, and would be performed for 2020 to 2023 without an approved ordinary budget and without entered appropriations; for a multi-year contract, the choice of the award method and the setting of the conditions therefore remain a competence of the police council, so the board lacked competence. On 3 September 2019 the police zone sought the annulment of that refusal on a single plea. It argued at length, referring to the preparatory works of the Act of 1 March 2019, of the Brussels ordinance of 27 July 2017 (which rewrote article 234 of the New Municipal Act for municipalities) and of article 85 of the Civil Security Act for emergency zones, that the reference to ‘the ordinary budget’ is a condition relating to the object of the contract — ordinary versus extraordinary expenditure — and not to its duration. A contract falling under the ordinary budget can perfectly well be multi-year. It also pointed out that, in accounting terms, appropriations need only exist at the time of award, not at the launch of the procedure, and that the Region's reading would paralyse police zones: the delegation would then be usable only for contracts fully performed before 31 December of the current year, whereas the police council meets only a minimum of four times a year. The Region replied that the applicant was confusing two distinct conditions: the ‘day-to-day management’ condition, which the federal and Brussels legislatures had removed following Council of State case law (judgment no. 230.716 of 1 April 2015), and the condition of appropriations entered beforehand in the ordinary budget, which the Brussels legislature had dropped for municipalities but the federal legislature had expressly retained for police zones. The Council of State sided with the Region. It recalled that a delegation of powers is a derogation from the normal exercise of competences, is in principle prohibited, and, where the law permits it, is strictly construed and may concern only implementing or detailed measures. Article 33, § 2 assigns the primary competence to choose the award method and set the conditions to the police council, and allows delegation to the board only ‘within the limits of the appropriations entered for that purpose in the ordinary budget’. It is therefore not enough that the contract, by its object, falls under day-to-day management or the ordinary budget: the federal legislature permits the delegation only if appropriations for the contract are already entered in the ordinary budget. As the parties themselves acknowledged, that is ‘hard to reconcile’ with a delegation for a multi-year contract. The Council observed that it is not for it to assess the relevance of the legislature's choice to tie the delegation — which in principle operates before the award procedure — to appropriations already entered, whereas appropriations normally need exist only before the budgetary commitment at the conclusion of the contract. It could only find that the statutory authorisation leaves no room for the contra legem interpretation proposed by the police zone. The single plea was unfounded and the action dismissed. The police zone bears the roll fee of 200 euros, the contribution of 20 euros and a procedural indemnity of 770 euros to the Region (the basic amount of 700 euros, indexed under the ministerial decree of 22 June 2022).
Why does this matter?
Most public procurement judgments concern the award; this one concerns the step before — who within a contracting authority is competent to choose the procedure and adopt the specifications. That is no formality: a lack of competence in setting the contract conditions taints the entire award procedure and is effectively sanctioned by administrative supervision, as here. For police zones the lesson is sharp. The Act of 1 March 2019 relaxed the delegation rules in article 33, § 2 of the Integrated Police Act by dropping the ‘day-to-day management’ condition, but the condition of appropriations entered beforehand in the ordinary budget remained — unlike for Brussels municipalities, where the ordinance of 27 July 2017 removed that condition, and unlike what the police zone thought it could infer from the parliamentary documents. The Council of State implicitly acknowledges that the rule is awkward: it calls it ‘hard to reconcile’ with multi-year contracts and points to the tension between the timing of the delegation (before the procedure) and the moment appropriations normally must exist (at commitment). But it refuses to interpret that awkwardness away: a delegation is strictly construed, and a clear text is not rewritten contra legem because the preparatory works elsewhere suggest a more flexible intention. The judgment is also a reminder of the weight of preparatory works as an interpretive tool: the police zone built its entire argument on the legislative history of three different regimes, and the Council dismissed it not by debating that history but by finding that the text itself leaves no room. Whoever wants a four-year framework agreement must therefore have the decision taken by the police council — or organise the council's schedule accordingly.
The lesson
For police zones and, more broadly, for any contracting authority working with delegations: before every multi-year contract, check whether the body choosing the award procedure and approving the specifications is actually competent, and read the delegation provision literally. For police zones, article 33, § 2 concretely means that the police board may act only for contracts whose appropriations are already in the current year's ordinary budget; a 48-month framework agreement, or any contract running beyond the budget year, belongs to the police council. Plan the council's meeting calendar accordingly and bundle multi-year files. Do not build a competence construction on preparatory works or on the rules applying to municipalities or emergency zones: the Council of State tests against the text applicable to your type of authority, and a delegation never receives a broad reading. For bidders, this judgment is a point of attention when screening procurement documents: specifications adopted by the wrong body constitute a competence defect that can bring down the entire procedure — through supervision, as here, or through a competitor's action.
Ask yourself
Do you know which body within your authority is competent to choose the award procedure and set the contract conditions, and under which precise conditions that may be delegated? Are the appropriations for the contract you want to launch under delegation already entered in the ordinary budget, or does the contract span several budget years? Have you read the delegation provision applicable to your type of authority (police zone, municipality, emergency zone) instead of assuming the rules are the same everywhere? And as a bidder: for a multi-year contract, have you checked which body approved the specifications and whether the supervisory authority has already taken a position?
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 →