G4S never followed its extreme-urgency suspension with an annulment action: the Council must lift the suspension, but the Pension Service, which had already withdrawn, pays the costs
After the Council of State, at the request of G4S Secure Solutions, suspended under extreme urgency the award of the Zuidertoren security contract to Seris Security, G4S never filed an annulment action, so the Council was obliged under article 17, § 4, third paragraph of its coordinated laws to lift the suspension — but because the Federal Pension Service had meanwhile withdrawn the award decision itself, it still bore all the costs, including a 770-euro procedural indemnity.
What happened?
On 25 April 2022 the Federal Pension Service decided to award the public service contract for ‘reception and security in the Zuidertoren’ (ref. SFPD/S2100/2022/02) not to G4S Secure Solutions but to Seris Security. G4S learned of this by letter of 26 April 2022 and turned to the Council of State on 10 May 2022 with a claim for suspension under extreme urgency. Successfully: by judgment no. 253.985 of 13 June 2022 the Council suspended the execution of the award decision. What followed took an unexpected procedural turn. G4S never filed a petition for annulment — normally the logical next step after an extreme-urgency suspension. In that case article 17, § 4, third paragraph of the coordinated laws leaves the Council no choice: the suspension must be lifted. The case was handled in writing, on the proposal of chamber president Paul Lemmens and with no party requesting a hearing, and taken under deliberation on 6 December 2022. Meanwhile, by letter of 2 November 2022, the defending party had reported something important: the management committee of the Federal Pension Service had already withdrawn the contested award decision on 27 June 2022 — two weeks after the suspension judgment. That withdrawal determined the allocation of costs. Although the suspension was formally lifted, the Council placed all the costs of the extreme-urgency claim on the Pension Service: the roll fee of 200 euros, the contribution of 22 euros and the procedural indemnity of 770 euros requested by G4S. Intervening party Seris Security was left with its own roll fee of 150 euros.
Why does this matter?
The judgment exposes a procedural mechanism bidders tend to underestimate: an extreme-urgency suspension is a provisional measure, not a terminus. Whoever fails to follow the suspension judgment with an annulment action sees the suspension fall away by operation of law — article 17, § 4, third paragraph gives the Council no margin of appreciation. Here that had no consequences for G4S, because the authority had itself withdrawn the award after the suspension judgment, effectively conceding the dispute. But the sequence could have played out differently: had the Pension Service stood by its award, lifting the suspension would have reopened the road to signing the contract with Seris Security. For contracting authorities the judgment confirms the settled costs logic on withdrawal: an authority that withdraws its decision after a suspension counts as the losing party and bears the roll fee, the contribution and the procedural indemnity — even where the judgment formally does no more than lift the suspension.
The lesson
For bidders the lesson is procedural and hard: never treat a won extreme-urgency suspension as the end of the story. File an annulment action in time, otherwise the Council is obliged to lift the suspension and the suspended award revives — unless the authority obliges you, as here, by withdrawing of its own accord. Counting on that is not a strategy. After a withdrawal, also pursue the costs: the procedural indemnity (here 770 euros), the roll fee and the contribution fall on the authority. For authorities: withdrawing after an extreme-urgency suspension is often the wisest exit, but budget for the attached costs, and remember the intervening beneficiary bears its own intervention fee.
Ask yourself
After winning an extreme-urgency suspension, is the deadline for the annulment action in your diary, knowing the suspension is otherwise compulsorily lifted? Do you realise that a lifted suspension revives the suspended award decision if the authority does not withdraw it itself? Do you know that even in a judgment that merely lifts the suspension, you can recover your procedural indemnity where the authority has withdrawn the contested decision? And as an authority: after a suspension judgment, have you weighed whether withdrawing and redoing the procedure is not cheaper and safer than litigating on?
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 →