Withdrawal four days before the hearing — and still a 994 euro bill: the price of a quick course change in extreme urgency
Days before the hearing, SA Entreprises Herphelin withdraws both its extreme-urgency and annulment action against SOFICO over the E429 motorway maintenance contract, but still bears 994 euros in procedural costs.
What happened?
On 16 December 2022 SOFICO — the Walloon motorway authority — awarded a 'bail d'intervention d'urgence autoroutier' for Lot 1 District de Ghislenghien (around the E429/E42 motorway) to SA T.S.S. SA Entreprises Herphelin was told its tender was not selected and had been declared 'irregular'. On 6 January 2023 — twenty days later — Herphelin filed both an extreme-urgency action and an annulment action. SOFICO replied with observations and the administrative file. The hearing was set for 23 January 2023. But four days earlier, on 19 January 2023, Herphelin wrote to the Council to withdraw — both the urgency and annulment actions. Counsel Me Guillaume Poulain confirmed this at the hearing. SOFICO, represented by Me Pacôme Noumair, asked for 770 euros procedural indemnity — the new indexed basic amount in force since 9 July 2022 after the ministerial decree of 22 June 2022. Presiding judge Florence Piret (VIth chamber) acknowledged the withdrawal and ordered Herphelin to pay: 200 euros filing fee + 24 euros contribution + 770 euros indemnity = 994 euros. A side question: both parties had requested confidentiality of their tenders. The Council declares these requests 'moot' now that the ruling ends the proceedings. The ruling therefore said nothing on the merits about the irregularity declaration of Herphelin's tender — that discussion will certainly return another day.
Why does this matter?
Extreme urgency is the Council's most intensive and expensive procedure — no wonder some bidders withdraw when the substantive outlook weakens during preparation. The problem: withdrawal after service does not escape the costs order, and since 9 July 2022 the basic procedural indemnity has risen through indexation to 770 euros. In public procurement disputes this can rise to 3,080 euros (the 2,800 euro maximum indexed). More important: a quick assessment of your chances can save money. Had Herphelin withdrawn before filing, no fee would have been due; had it withdrawn before SOFICO's observations, dialogue with the opposing counsel might have produced a lower indemnity. For authorities: even on withdrawal you can claim the new indexed basic amount, and the Council awards what is requested.
The lesson
If you doubt your extreme-urgency chances: decide fast. The later in the procedure you withdraw (after the opposing note, after preparation, after hearing is set), the harder it becomes to keep the indemnity low. Always build an exit scenario into your extreme-urgency decision: what if the administrative file disappoints? For authorities: always request the indexed basic amount (770 euros since 2022) and consider a higher amount in procurement cases.
Ask yourself
About to file an extreme-urgency action against an award? Have you (a) assessed the opposing party's note based on the administrative file, (b) built a go/no-go checkpoint before the hearing, and (c) internally agreed that a quick withdrawal is always better than pushing through against better judgement?
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 →