You lost on 10 lots, won 1 lot via withdrawal — and still get the full procedural indemnity for that one lot
The Council of State awards Johnson & Johnson the full €770 procedural indemnity for lot 29 after ISPCC withdrew that lot — even though J&J had lost in an earlier judgment on the other 10 lots of the same procurement.
What happened?
On 31 August 2022 the Intercommunale de Santé publique du Pays de Charleroi (ISPCC) awarded a 2022-2027 framework for viscerosynthesis and endoscopy supplies across multiple lots: lot 1 to Peters Surgical, lot 2 to Molnlycke, lots 3-15-21-22-24-25-26-29-32 to Medtronic, lot 25 to Duo-Med. Johnson & Johnson got nothing and filed an emergency suspension on 23 September 2022 against all these awards. Five days later, on 28 September 2022, ISPCC withdrew one of the awards — lot 29, awarded to Medtronic. The withdrawal was notified on 4 October. Nobody contested it. Meanwhile the Council of State had already, in judgment 254.758 of 14 October 2022, rejected the action on the other 10 lots. That left lot 29, postponed sine die. In this judgment the Council rules on costs. ISPCC argued: 'but J&J lost on all other lots, so no full indemnity.' The Council answered dryly: 'it doesn't matter that the action was rejected on the other lots.' For lot 29, withdrawal is a 'succédané of annulment', so ISPCC is the losing party. J&J gets the full €770 procedural indemnity, plus €200 roll fee and €22 contribution. Intervening party Molnlycke pays its own €150 intervention fee.
Why does this matter?
In multi-lot procurements you often lose a few lots and win one. The procedural indemnity isn't divided 'proportionally' across lots — if your action succeeds on one lot (even via withdrawal), you get the full base indemnity. For contracting authorities this means: withdrawing one lot to avoid pressure costs the same as losing the entire appeal. The financial incentive to withdraw early is therefore limited — especially in large multi-lot procurements where a single 'loss' on one lot automatically triggers a full indemnity package.
The lesson
If you file an emergency suspension against a multi-lot award and the authority withdraws one of the contested lots, ask in your conclusions for the full procedural indemnity — not pro rata. Each lot is legally treated as a separate 'litige', and winning on one lot is enough for the full indemnity.
Ask yourself
If you have a multi-lot appeal and 'win' on one lot (withdrawal, suspension, or annulment): expressly request the indemnity in your conclusions, and argue that the outcome on other lots doesn't affect your interest.
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 →