After the suspended dialyzer award, Nipro skips the annulment action: suspension lifted, but AZ Sint-Jan pays
After Nipro Medical Europe obtained, under extreme urgency, the suspension of the award of the framework agreement for artificial kidneys to Baxter Belgium and Fresenius Medical Care, the AZ Sint-Jan Brugge-Oostende hospital withdrew that decision; since Nipro then filed no annulment action, the Council of State had to lift the suspension — but through the withdrawal, the costs of the urgency proceedings, including a basic procedural indemnity of 770 euros, landed with the hospital.
What happened?
On 23 March 2022 the AZ Sint-Jan Brugge-Oostende hospital awarded the supply contract 'Framework agreement for the purchase of artificial kidneys': lot 1, dialyzers with synthetic polymers, went to Baxter Belgium, and lot 2, dialyzers with an alternative membrane, to Fresenius Medical Care. Nipro Medical Europe, which lost out, was notified of the non-award the same day. Nipro went to the Council of State on 11 April 2022 and prevailed: by judgment no. 253.720 of 11 May 2022 the execution of the award decision was suspended under extreme urgency (the application was rejected for the remainder). A week later, on 18 May 2022, the hospital's board withdrew the contested decision — which Nipro reported to the Council on 8 June 2022. Nipro then filed no petition for annulment. In that case, article 17, § 4, third paragraph of the coordinated laws leaves the Council no choice: the suspension must be lifted. The ruling on costs nevertheless went Nipro's way: in view of the withdrawal of the contested decision, the hospital was ordered to pay the costs of the urgency proceedings — a roll fee of 200 euros, a contribution of 22 euros and the requested basic procedural indemnity of 770 euros. The case was dealt with entirely in writing; neither party requested a hearing.
Why does this matter?
The judgment shows how a procurement dispute can end in an orderly fashion without any ruling on the merits. The urgency suspension forced the hospital to choose; it chose to withdraw its award decision and redo the procedure. For Nipro the goal was thereby achieved — an annulment action would only generate costs, so none followed. That has one automatic consequence: without an annulment action, the Council is obliged to lift the suspension. That lifting is no defeat; it is the formal winding-up of a case that was won. The costs ruling confirms it: through the withdrawal the authority counts as the losing party, and the bidder recovers roll fee, contribution and procedural indemnity. Together with the judgments of the same chamber on the same day, this shows how consistently the Council winds up this pattern: whoever withdraws an award after it has been suspended pays the bill — whether the applicant lets its action be deemed 'not filed', lets it lapse 'without object' or, as here, simply files nothing more.
The lesson
If, as a bidder, you obtain the urgency suspension and the authority withdraws its decision, you no longer need an annulment action to recover your costs: the withdrawal itself makes the authority the losing party. Do claim your procedural indemnity in the urgency phase (here 770 euros) and report the withdrawal to the Council. Expect the suspension to be lifted — that is a legal obligation, not a change of course on the merits. As a contracting authority, withdrawing and redoing the procedure after a suspension is often the wisest path, but budget for the costs: roll fee, contribution and procedural indemnity land with you.
Ask yourself
Do you know that the Council of State must lift the urgency suspension if you subsequently file no annulment action — and that this lifting does not affect the costs order in your favour? Have you formally reported the withdrawal of the award decision to the Council? Did you claim the procedural indemnity in your urgency application? And as an authority: do you realise that withdrawing a suspended award leaves you, as the losing party, bearing the full costs of the suspension proceedings?
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 →