Withdrawn restoration contract at the Saint-Emmanuel pit: one judgment suffices for suspension and annulment, and the procedural indemnity turns out to have been indexed
After the Agence wallonne du Patrimoine withdrew its award of 24 December 2021 for the restoration of the headframe and roofs of the Saint-Emmanuel mining pit, the Council of State, applying article 30, § 5, ruled in a single judgment on both the extreme-urgency application and the annulment action of the architecture firms Architecture et Création and Barattucci — without object, but with an indexed procedural indemnity of 770 euros payable by the AWAP, albeit without a double indemnity and without a 20 percent increase.
What happened?
On 24 December 2021 Walloon minister Valérie De Bue signed the decision of the Agence wallonne du Patrimoine to award the services contract for the ‘restoration of the headframe, restoration of roofs and construction of sustainable installations (a system for collecting and distributing rainwater)’ at the Saint-Emmanuel pit to the temporary association of the firms Architectes Associés, VIA and Techniques générales et Infrastructures. The architecture firms Architecture et Création and Marcel Barattucci, Ingénieur Architecte & Associés applied on 10 January 2022 for suspension under extreme urgency and on 17 February 2022 for annulment. That same 17 February the AWAP withdrew the contested decision; the withdrawal was notified on 18 February 2022 by registered letter to all bidders concerned, stating the remedies, forms and time limits. Nobody challenged the withdrawal, so it became definitive. Under article 30, § 5 of the coordinated laws the Council of State could rule on both applications in one and the same judgment, without a request to continue the proceedings and without the additional fee: both had lost their object. For the costs, the withdrawal counted as a disguised annulment, with the AWAP as the losing party. The applicants claimed a double procedural indemnity (for the suspension and the annulment proceedings) but did not get it: they put forward no elements to justify it. Nor was there a 20 percent increase, because article 67, § 2, third paragraph of the Regent’s Decree excludes it where the contested act has been withdrawn. The Council did apply the indexation: since the ministerial decree of 22 June 2022, in force on 9 July 2022, the basic amount is 770 euros instead of 700. The AWAP therefore pays a procedural indemnity of 770 euros (half to each of the two applicants), roll fees of 400 euros and the contribution of 22 euros.
Why does this matter?
Beyond the familiar mechanism of the withdrawal as a disguised annulment, this judgment contains three points that directly affect litigation practice. First, the procedural economy of article 30, § 5: where the contested act is withdrawn while suspension and annulment proceedings are both pending, the Council may dispose of both in a single judgment, without a request to continue and without the corresponding fee — a saving in time and money that applicants should know about. Second, the limits of the procedural indemnity: two sets of proceedings do not automatically mean two indemnities, and the 20 percent increase conceivable in ordinary litigation expressly lapses where the act has been withdrawn. Whoever wants more than the basic amount must substantiate it concretely. Third, almost in passing but practically important: the indexation of the basic amount from 700 to 770 euros since 9 July 2022 — this judgment applies it to proceedings brought before that date, confirming that the amount applicable on the date of the judgment counts, not that on the date of the application. The contrast with the sister judgment no. 255.353 of the same day, where 700 euros were awarded because the applicant had itself claimed that amount, shows how much the wording of the costs claim matters.
The lesson
For applicants: when combining an extreme-urgency application with an annulment action, formulate your claim for the procedural indemnity carefully — claim the applicable indexed basic amount (not an outdated figure), but do not count on a double indemnity or a 20 percent increase where the authority withdraws the act; substantiate any departure from the basic amount concretely. For authorities: a withdrawal ends both sets of proceedings in one move and limits the bill to one basic indemnity plus roll fees and contributions — which makes the withdrawal not only a corrective tool but also financially predictable. Finally, note that notification to all bidders stating the remedies was once again the key to making the withdrawal definitive.
Ask yourself
Do you know that, where the contested act is withdrawn, the Council of State can dispose of suspension and annulment in a single judgment, without a request to continue and without an additional fee? Do you claim the correct, indexed basic amount of the procedural indemnity — realising that the amount applicable on the date of the judgment governs? Do you know that a double indemnity for suspension and annulment requires substantiation, and that the 20 percent increase is excluded where the act has been withdrawn? And as an authority, do you check that your withdrawal has been notified to all bidders with the remedies stated?
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 →