A hospital non-profit awarding a supply contract: which court do you turn to when you want to challenge the award?
The Council of State declares the action without object after Clinique Saint Luc Bouge withdrew its award decision — but in passing makes clear that the non-profit is likely not an 'administrative authority' and that the action should probably have been lodged with the civil court.
What happened?
Sebia Benelux — a subsidiary of a French specialist in clinical electrophoresis — had been supplying Clinique Saint Luc Bouge (part of the Namur non-profit Santé et Prévoyance) for years. When the hospital tendered a new contract in late 2020 for the supply, commissioning and maintenance of a capillary electrophoresis device for separating protein fractions, the award on 20 November 2020 went not to Sebia but to Sysmex Belgium (Hoeilaart). On 7 December 2020 Sebia filed an extreme-urgency action before the Council of State for both suspension and annulment. The case was scheduled for 6 January 2021. But before that hearing, on 14 December 2020, the non-profit simply withdrew its award decision — notified by registered letter of 15 December 2020 to all bidders. No appeal was lodged against the withdrawal, neither before the Council of State nor before the civil courts. The parties confirmed at the hearing that the withdrawal could be considered final. The Council then applies article 30, § 5 of the coordinated laws: where suspension and annulment have been filed together, the Council may by a single ruling find both without object, without the need for a continuation request and without docket fees. More interesting is what the Council says about costs. In principle the non-profit, as the 'losing' party after withdrawal, would bear the costs. But the Council notes — as the non-profit itself had pointed out in its email of 17 December 2020 — that Santé et Prévoyance 'evidently' does not appear to be an administrative authority. In its notification of the (withdrawn) award, the non-profit had even stated verbatim that any appeal could be lodged 'exclusively' before the injunction judge of the court of first instance of the Namur judicial district. That circumstance, says the Council, justifies leaving Sebia's own costs on Sebia (200 euro docket fee plus 20 euro contribution).
Why does this matter?
Not every organisation awarding a public contract is an 'administrative authority' within the meaning of article 14 of the coordinated Council of State laws. That distinction is decisive: it determines whether you go to the Council of State or to the civil courts (in summary proceedings or on the merits). Hospital non-profits and other private entities that are 'contracting authorities' under the 2016 procurement act do not automatically qualify as administrative authorities for contentious purposes. Get your forum choice wrong and you may see your rights lapse through the 60-day or 15-calendar-day deadlines — and in this case Sebia had to bear its own docket fee even though the non-profit withdrew its decision. The message: read the appeal clause in the notification letter very carefully before filing.
The lesson
When you want to challenge an award by a contracting authority that is not a classical public-law entity (a hospital non-profit, a mutuality, a research body, a social housing company, a university board, etc.), check two things first. One: what does the appeal clause in the notification letter itself say — Council of State or civil court? Two: does the organisation fall within article 14 of the coordinated Council of State laws (material administrative authority — does it unilaterally impose obligations on third parties through public prerogatives)? If in doubt, run parallel proceedings (civil summary proceedings and extreme-urgency before the Council), or take advice first — a wrong forum choice can be fatal.
Ask yourself
A hospital, mutuality, research centre or other private legal entity awards the contract to your competitor and the notification letter mentions 'exclusively the injunction judge of the court of first instance' as the avenue of appeal: take that indication seriously before running to the Council of State.
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 →