Win the suspension but skip the annulment action, and the suspension is lifted again — yet De Vlaamse Waterweg still foots the bill
Hye had obtained the extreme-urgency suspension of the award of the land maintenance contract in district 2 (tender file ARC-21-0035) to De Brandt, but never filed an annulment action, so the Council of State was bound to lift the suspension; because De Vlaamse Waterweg had meanwhile withdrawn the award on 8 March 2022, it nevertheless bears the costs and the 700-euro procedural indemnity.
What happened?
On 18 January 2022 De Vlaamse Waterweg awarded the contract ‘Maintenance on land and urgent interventions – Central Region Division – district 2’ (tender file ARC-21-0035) to De Brandt. Hye challenged that award on 3 February 2022 under extreme urgency and prevailed: by judgment no. 253.138 of 1 March 2022 the Council of State suspended its execution. A week later, on 8 March 2022, De Vlaamse Waterweg withdrew the award decision — which Hye only reported to the Council by letter of 15 September 2022. Hye never filed a petition for annulment, however. That triggered the automatism of article 17, § 4, third paragraph, of the coordinated laws: if the applicant files no annulment action after an extreme-urgency suspension, the Council is bound to lift the suspension. With the parties’ consent the case was handled without a hearing. The lifting was a formality without practical effect — the suspended decision no longer existed after the withdrawal — but costs remained to be settled: given that withdrawal, the Council ordered De Vlaamse Waterweg to pay the 200-euro roll fee, the 22-euro contribution and the 700-euro procedural indemnity claimed by Hye. The intervening party De Brandt bears its own 150-euro intervention fee.
Why does this matter?
The judgment illustrates a procedural automatism that is regularly underestimated: an extreme-urgency suspension is a provisional measure that only survives if an annulment action follows. If none does, the Council lifts the suspension — with no margin of discretion. For a bidder who already saw its goal achieved after the suspension (here: the withdrawal of the award a week after the suspension judgment), an annulment action looks like wasted effort, and practically it was; lifting changes nothing about a withdrawn decision. But the judgment also shows the safer route on costs: as with disguised annulment, the authority that withdraws its suspended decision bears the costs, including the procedural indemnity. Hye thus recovered 700 euros without ever litigating the merits. For authorities the lesson is the mirror image: a swift withdrawal after a suspension judgment ends the dispute, but not the invoice.
The lesson
As a bidder, after winning an extreme-urgency suspension, weigh deliberately what you do with the time limit for the annulment action. If the authority quickly withdraws the decision, you can forgo the action — the suspension will later be lifted formally, but that no longer affects you, and you can still recover your costs and procedural indemnity. If no withdrawal comes, however, the annulment action is not an option but a necessity: without it your suspension lapses and the award revives. Also report a withdrawal to the Council promptly — here it learned of it only six months later. For authorities: withdrawing a suspended award limits the damage, but you remain the losing party bearing roll fee, contribution and procedural indemnity.
Ask yourself
Do you know that an extreme-urgency suspension is automatically lifted if you file no annulment action — and is that deadline consciously in your litigation calendar? Has the contested decision actually and definitively been withdrawn before you decide not to litigate the merits? Do you claim the procedural indemnity in your application, so you can recover it even upon a withdrawal? And as an authority: do you realise that a withdrawal after suspension leaves you with the costs of the procedure, even though no judgment on the merits is ever delivered?
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 →