Krinkels wins the extreme-urgency suspension of the Kempen-north green-maintenance contract, files no annulment action — and ends up paying 992 euros in costs itself
In May 2022 Krinkels obtained the extreme-urgency suspension of the award to A.B.O.G. of the green and cleanliness maintenance of the Antwerp regional roads and motorways (lot 2, transport region Kempen north), but never followed up with an annulment action, so the Council of State was obliged to lift the suspension and Krinkels — unlike the bidder in judgment no. 255.456 delivered the same day — itself had to pay the roll fee, the contribution and a 770-euro procedural indemnity to the Flemish Region.
What happened?
On 1 April 2022 the Flemish Minister for Mobility and Public Works awarded the service contract ‘green and cleanliness maintenance on the regional roads and motorways in the Antwerp division — Lot 2: transport region Kempen north’ to A.B.O.G. Krinkels challenged that award on 25 April 2022 with a claim for suspension under extreme urgency, and prevailed: by judgment no. 253.859 of 24 May 2022 the Council of State suspended the execution of the award decision. But there the story ended. Krinkels subsequently filed no petition for annulment, and then article 17, § 4, third paragraph of the coordinated laws is unforgiving: the Council is obliged to lift the suspension it pronounced. The case was handled without a hearing — no party asked for one — and taken under deliberation on 6 December 2022. Unlike in the G4S case against the Federal Pension Service (judgment no. 255.456 of the same day), the Flemish Region had not withdrawn its award decision. The costs therefore fell against the applicant: Krinkels bears the roll fee of 200 euros, the contribution of 22 euros and the procedural indemnity of 770 euros requested by the Region. The intervening party A.B.O.G. tried to recover its own costs from Krinkels, including a procedural indemnity, but failed: an intervening party bears the costs of its own intervention (roll fee of 150 euros), and article 30/1, § 2, fourth paragraph expressly rules out a procedural indemnity for it. The overpaid fee of 222 euros was refunded to Krinkels.
Why does this matter?
Together with judgment no. 255.456, delivered the same day by the same chamber president, this judgment forms a diptych that draws the cost risk after an extreme-urgency suspension in sharp lines. The mechanism is identical: whoever fails to follow a suspension judgment with an annulment action sees the suspension compulsorily lifted. The difference lies in what the authority did in the meantime. In the G4S case the authority had withdrawn the award itself and so paid the bill; here the Flemish Region stood firm, the award to A.B.O.G. revived upon the lifting, and Krinkels was ordered to pay 992 euros in costs as the losing party. A won interim procedure can thus still end as a lost case with a costs order. The judgment also confirms a rule intervening beneficiaries must know: they bear their own intervention costs and can never receive a procedural indemnity, however well-founded their intervention.
The lesson
Whoever obtains an extreme-urgency suspension must follow it within the time limit with an annulment action, or consciously accept the consequences: the suspension is lifted, the award revives and the costs — here 992 euros, including a 770-euro procedural indemnity to the authority — land on your plate. The comparison with judgment no. 255.456 teaches that the outcome depends entirely on what the authority does in the meantime: if it withdraws, it pays; if it stands firm, you pay. So do not negotiate on in silence assuming the suspension will last. For intervening beneficiaries: never count on a procedural indemnity — the law rules it out — and treat the 150-euro intervention fee as the fixed price of defending your award.
Ask yourself
After winning an extreme-urgency suspension, have you taken — and documented — a conscious decision on whether to file an annulment action before the deadline passes? Do you realise that absent such an action the suspension is compulsorily lifted and you then pay the authority's procedural indemnity as the losing party? As an intervening beneficiary, do you know you can never receive a procedural indemnity and bear your own intervention fee? And as an authority, do you actively track after a suspension judgment whether the applicant follows through, so you know whether the award can revive?
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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 →