Oudenaken church: the municipality withdrew the suspended award, the architect filed no annulment action — the Council lifts the suspension and makes the municipality pay
After the Council of State had, on 14 April 2022, suspended under extreme urgency the award of the design study for the Sint-Pieter in Banden church in Oudenaken to Architectuur Depot, the municipality of Sint-Pieters-Leeuw withdrew that decision on 4 May 2022; because Urbain Architectencollectief then brought no annulment action, the Council was bound by article 17, § 4, third paragraph to lift the suspension — yet through the withdrawal the municipality remained the losing party and paid the roll fee, the contribution and a 700-euro procedural indemnity.
What happened?
On 28 February 2022 the college of mayor and aldermen of Sint-Pieters-Leeuw awarded the public contract ‘Sint-Pieters-Leeuw – Sint-Pieter in Banden church Oudenaken – Design study’ to Architectuur Depot, which had bid in a temporary partnership with MAP – Depot. Urbain Architectencollectief, whose bid was not chosen, applied on 23 March 2022 for suspension under extreme urgency and succeeded: by judgment no. 253.513 of 14 April 2022 the Council of State suspended the execution of the award decision. Three weeks later, on 4 May 2022, the college withdrew the contested decision. Urbain Architectencollectief, however, filed no application for annulment. On 12 September 2022 the president of the XIIth chamber proposed to the parties that the case be dealt with without a public hearing; nobody asked for one, and the case was taken under advisement on 22 November 2022. In the meantime the municipality had reported the withdrawal by letter of 22 September 2022. The Council found that, in the absence of an annulment action, article 17, § 4, third paragraph of the coordinated laws obliged it to lift the suspension, and did so. For the costs, however, the withdrawal weighed more heavily than the lifting: because the municipality had itself withdrawn its decision, the roll fee of 200 euros, the contribution of 22 euros and the procedural indemnity of 700 euros claimed by the applicant were placed on the municipality. The intervening parties each bore half of the 300-euro roll fee for their intervention. On the same day chamber president Paul Lemmens delivered two sister judgments on the same pattern: no. 255.136 (municipality of Bonheiden, debt collection through a bailiff) and no. 255.134 (Flemish Region, structural maintenance of the E403).
Why does this matter?
A suspension under extreme urgency is a provisional measure. The law ties its survival to a sequel: whoever obtains the suspension must also seek annulment within the time limit, failing which the Council lifts the suspension of its own motion. That is not a sanction but an automatism, and the Oudenaken judgment shows how it plays out in practice when the authority withdraws its own decision in the meantime. The applicant then no longer had an interest in an annulment action — the contested award no longer existed — and let it go. The lifting that follows sounds like a defeat but is not one: the award was already gone, and the costs ruling confirms who lost. The municipality paid the roll fee, the contribution and the procedural indemnity. What makes the judgment interesting is precisely that interplay: the operative part says ‘lifted’, the costs order says ‘the municipality lost’. For bidders it is a reassurance with a caveat. The reassurance: a withdrawal after a successful urgency application delivers the practical result and the costs, even without an annulment action. The caveat: that outcome depends on the withdrawal. If the authority does not withdraw and no annulment action follows, the award simply revives once the suspension is lifted — and the urgency victory was wasted effort. The three judgments of 29 November 2022 also illustrate how the Council disposes of such files: through the short-debate procedure, without a hearing, months after the withdrawal, in a four-page judgment.
The lesson
For bidders: never treat a successful urgency application as the end. Note the time limit for the annulment action immediately and decide consciously whether to bring it. If the authority withdraws its award, you may forgo the annulment action — the withdrawal gives you the result and the Council places the costs on the authority, including the procedural indemnity that you must expressly claim (here 700 euros). If it does not withdraw, the annulment action is the only way to prevent the suspension from being lifted and the award from reviving. Also check that the withdrawal has been formally adopted and notified; an announcement in a letter is not enough. For contracting authorities: withdrawing a suspended award is a correct, quick way out, but not a free one — you bear the roll fee, the contribution and the procedural indemnity. Report the withdrawal to the Council of your own accord, so the case can be closed without a hearing, and do not restart the procurement before the withdrawal is definitive.
Ask yourself
After winning a suspension under extreme urgency, have you noted the time limit for the annulment action and taken a conscious decision whether or not to bring it? Do you know that without that action the suspension must be lifted, and that the award then revives if the authority has not withdrawn it? Did you expressly claim the procedural indemnity in your urgency application, so that it can be awarded to you after a withdrawal? As a contracting authority: do you realise that after withdrawing a suspended award you bear the costs and the procedural indemnity, even though the case formally ends with the suspension being lifted? And have you formally decided the withdrawal and notified it to all bidders and to the Council?
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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 →