A Napoleonic decree fells the award by the Liège Major Seminary: when bursar and treasurer are the same person, the board is unlawfully composed
The Major Seminary of Liège awarded the design contract for making its church watertight to the joint venture Via Architecture–Greisch and objected that the Council of State lacked jurisdiction because it was not an administrative authority; the Council held prima facie the opposite — the seminary is a public institution established by law — and suspended the award under extreme urgency on a plea raised of the court's own motion: the board that took the decision was unlawfully composed, because one person combined the offices of bursar and treasurer, contrary to article 62 of the imperial decree of 6 November 1813.
What happened?
By a notice of 28 July 2022 the Seminary of Liège tendered a services contract for the appointment of a designer — a full assignment covering architecture, stability, special techniques and safety coordination — to make the church of the Seminary, the former abbey of the Prémontrés of Beaurepart, watertight. Four tenderers submitted offers on 15 September 2022. On 17 November 2022 the Seminary's administrative board awarded the contract to the joint venture of Via Architecture, étude & patrimoine with Bureau d'études Greisch, and set aside the tender of DDGM architectes. On 6 December 2022 DDGM, together with its three subcontractors (Prototype, G.E.I. Techniques spéciales and COSEP), sought suspension under extreme urgency. The Seminary argued as a preliminary point that the Council of State lacked jurisdiction: it was allegedly not an administrative authority, having been founded in 1592 without any public intervention, public funding or supervision. The Council carried out a remarkable historical analysis: the diocese of Liège and its seminary were abolished after the Liège and French revolutions, and the present Seminary owes its existence to the Concordat of 1801 and to Napoleon's laws and imperial decrees (1802, 1804, 1809, 1813), which re-established the diocesan seminaries as a public service, assigned them a special patrimony and subjected them to administrative supervision. Those texts were never repealed — desuetude does not exist in Belgian law, as the Constitutional Court confirmed in judgment no. 135/2015. The Seminary is moreover itself registered as a ‘public institution’ in the Crossroads Bank for Enterprises and acted in the contract notice as a contracting authority in that capacity. The Council therefore considered itself prima facie competent. The application was, however, inadmissible as regards the three subcontractors: only DDGM had submitted a tender and thus had an interest of its own. Then came the new plea, raised after the deputy auditor's investigation and a matter of public policy: under article 62 of the imperial decree of 6 November 1813, a seminary's board consists of at least four members with distinct offices, including a bursar and a treasurer. The Seminary's reply of 21 December 2022 revealed that one person, V.P., had combined both offices since 5 May 2022. Yet the decree deliberately separates expenditure (bursar) from revenue (treasurer), down to the three-key cash box of article 73. The practical difficulties and safeguards invoked at the hearing (double signatures, double-entry bookkeeping, an annual audit) did not justify the breach. The plea was found serious, the balance of interests favoured suspension, and the Council suspended the award decision with immediate execution; costs were reserved.
Why does this matter?
This judgment shows first of all how far the concept of ‘administrative authority’ — and thus the reach of public procurement law and the jurisdiction of the Council of State — can extend: to an ecclesiastical seminary whose status goes back to the Concordat of 1801 and decrees of Napoleon. The Council recalls that legislation does not vanish through disuse: texts from 1813 that were never repealed remain binding law, even if nobody applies them any more. For practice, the second layer matters at least as much: the lawful composition of the body taking the award decision is a matter of public policy. The Council may raise that plea of its own motion, and the applicant may invoke it until the close of argument — here it surfaced only after an investigative measure by the auditor, and it sufficed on its own to carry the suspension, without the actual rejection of the tender ever being examined. Finally, the judgment confirms the classic but often forgotten rule that subcontractors, even jointly liable ones on whose capacity the tenderer relies, have no interest of their own in challenging the award: only those who themselves tendered have access to the court.
The lesson
For tenderers: with atypical contracting authorities — church councils, seminaries, foundations, publicly oriented non-profits — look not only at the content of the decision but also at who took it and whether that body was lawfully composed; a defect of competence is a matter of public policy and can be raised even at the hearing. File your application in the name of the tenderer alone, not together with subcontractors: they are inadmissible and bring no procedural advantage. And do not be deterred by a plea of lack of jurisdiction: the fact that a contracting authority does not call itself an administrative authority does not mean the Council of State will follow it — its registration as a public institution and its own contract notice weighed heavily here. For contracting authorities outside the classic administrations: put your legal status and the composition of your decision-making bodies in order before launching a procurement. Practical objections and home-made safeguards do not replace statutory rules — as long as a text is in force, even one dating from 1813, it must be complied with.
Ask yourself
With an atypical contracting authority, do you check who signed the award decision and whether the decision-making body was lawfully composed? Do you know that an irregular composition is a matter of public policy and can be raised until the close of argument, including at the auditor's prompting? Do you file your extreme-urgency application in the name of the tenderer alone, without subcontractors who will be inadmissible anyway? And as a contracting institution with a special status: do you know the — sometimes centuries-old — texts governing your bodies, and do you comply with them, or do you trust that nobody remembers them?
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 →