Suspension won, then silence: without an annulment action Interoffice Sobete loses its suspension — but Mol still pays the bill
Interoffice Sobete Tongeren had successfully obtained the suspension of the municipality of Mol’s award of a framework agreement for school supplies to Baert, but then brought no annulment action, so the Council of State had to lift the suspension; because the municipality had meanwhile withdrawn its award decision itself, the court fee, the contribution and a procedural indemnity of 700 euros nonetheless fell on the municipality.
What happened?
On 5 May 2022 the municipality of Mol awarded the public contract ‘framework agreement for supplies of school materials for 2 years (possibility of 1 tacit extension by 1 year)’ to Baert. On 23 May 2022 Interoffice Sobete Tongeren applied for suspension under extreme urgency of the execution of that decision. It succeeded: by judgment no. 254.108 of 24 June 2022 the Council of State ordered suspension under extreme urgency. After that, nothing further came from the applicant. It lodged no application for annulment of the contested decision. Article 17, § 4, third paragraph of the coordinated laws on the Council of State then leaves no choice: the Council is bound to lift the suspension pronounced. By order of 10 October 2022, applying article 26, § 2 of the Regent’s decree of 23 August 1948, the chamber president proposed to the parties that the case be dealt with without a public hearing unless one of them requested otherwise. No party asked for a hearing, so the debate was closed and the case taken under advisement on 6 December 2022. In the meantime the parties had told the Council something important: by letters of 18 October 2022 (the municipality) and 3 November 2022 (Interoffice Sobete) respectively, they reported that Mol’s college of mayor and aldermen had withdrawn the contested award decision on 30 June 2022 — six days after the suspension judgment. That explains at once why the applicant brought no annulment action: the practical objective had been achieved. For the costs, that withdrawal was decisive. The Council held that, given the withdrawal of the contested decision, it was appropriate to place the costs on the defending party: the court fee of the application for suspension under extreme urgency, the contribution and the procedural indemnity requested by the applicant. The judgment lifts the suspension ordered by judgment no. 254.108, orders the municipality of Mol to pay the costs — a court fee of 200 euros, a contribution of 22 euros and a procedural indemnity of 700 euros in favour of Interoffice Sobete — and orders the intervening party Baert to pay the costs of its intervention, assessed at a court fee of 150 euros.
Why does this matter?
Many bidders think a suspension judgment is the end of the fight. This judgment shows it is legally just the beginning. Anyone who, after a suspension under extreme urgency, brings no annulment action automatically loses the suspension: article 17, § 4, third paragraph leaves the Council no margin. In many cases that has no consequence — here the municipality had already withdrawn its award decision, so there was nothing left to suspend. But where the authority does not withdraw the decision and the bidder lets the annulment deadline pass, the contested award simply revives. The suspension then turns out to have been a protective measure that retroactively loses its point. At the same time the judgment confirms the other side of the coin: withdrawing a suspended award is not a cost-free exit for the authority. Six days after the suspension judgment Mol withdrew its decision, and yet it bears the court fee, the contribution and 700 euros in procedural indemnity. The bidder who obtained the suspension is therefore not left empty-handed, even though the proceedings formally end with the lifting of its own suspension. Note finally how smoothly the procedure ran: on the chamber president’s proposal the case was dealt with without a public hearing, and both parties spontaneously kept the Council informed of the withdrawal. That is the shortest route to a clean conclusion.
The lesson
If you have obtained a suspension under extreme urgency, do not sit still. As long as the authority has not formally and definitively withdrawn the contested decision, you must bring an annulment action; if you do not, the suspension is lifted and the award stands again. So ask the authority in writing to confirm the withdrawal before you decide to drop the annulment proceedings, and send that confirmation to the Council — here both parties did so, which simplified the judgment. In any event, do not forget to request the procedural indemnity expressly: Interoffice Sobete did and received 700 euros, on top of the court fee and contribution, even though the outcome was formally the lifting of its own suspension. As an authority the lesson is sober: withdrawing a suspended award is the right reflex to correct the procedure, but you pay the costs of the proceedings. And the intervening beneficiary bears only the court fee of its own intervention, here 150 euros.
Ask yourself
Do you know that a suspension under extreme urgency is automatically lifted if you subsequently lodge no application for annulment? Before skipping that step, do you have written confirmation that the authority has definitively withdrawn the contested decision? Do you expressly request the procedural indemnity in your pleadings, even where the case seems headed for a lifting of the suspension? And as an authority: do you realise that withdrawing a suspended award costs you the court fee, the contribution and the procedural indemnity, even without a ruling on the merits?
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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 →