Pointing wrongly to 'an appeal to the Council of State' in your rejection letter cannot create that Council's jurisdiction — and costs you your procedure indemnity
The Council of State declares itself incompetent to hear Philippe Lesur's extreme-urgency challenge to the award of a scrap contract to BST, because Bruxelles-Energie — a cooperative in which Agence Bruxelles-Propreté holds only 40% of compartment A — is not an 'administrative authority', and immediately penalises Bruxelles-Energie for wrongly referring to the Council in its rejection letter by stripping it of its procedure indemnity.
What happened?
Bruxelles-Energie SCRL is a private-law cooperative that operates a waste-energy plant, a district heating network and a paper/PMC sorting centre. Its capital is split into two compartments. Compartment A: 40% held by the Agence Bruxelles-Propreté (ABP), 60% by the NV Centre de tri. Compartment B: entirely held by NV Centre de tri. On 30 June 2022 the Bruxelles-Energie board decides to renew its 'mitraille' (scrap) contract and approves the tender documents for a 'marché public' for the transport and recycling of scrap, run through a negotiated procedure without publicity. Eleven operators are invited, including Philippe Lesur and Belgian Scrap Terminal (BST). Only these two bid. On 28 November 2022 the board approves the analysis report and awards to BST. The rejection is notified to Lesur by registered post on 23 December 2022 — that letter explicitly mentions the possibility of seeking suspension before the Council of State. Lesur files such a challenge on 20 January 2023. He argues that Bruxelles-Energie is a 'person of public law' and therefore an 'administrative authority' under Article 14 § 1, 1° of the coordinated laws on the Council of State. At the hearing he refines: a private-law legal person can act as the agent of a public-law legal person and thereby be its extension. He points out that the administrateur délégué running Bruxelles-Energie's day-to-day management is the same person as the gedelegeerd to ABP's day-to-day management. ABP itself is a public-interest body created by ordinance of 19 July 1990, under the supervision of the Brussels Region. According to Lesur, Bruxelles-Energie is a partnership in which ABP carries out commercial activities, and the scrap contract must be regarded as a contract awarded by ABP in that partnership. The Council rejects this reasoning. First: the articles of association of Bruxelles-Energie, in light of its corporate purpose and operating arrangements, do not provide sufficient indicia to qualify it as an administrative authority — neither organically nor functionally. Nothing suggests it has prerogatives of public power letting it take binding decisions against third parties. Second: Lesur asserts in his application that Bruxelles-Energie is a person of public law without offering any evidence, and contradicts himself at the hearing by arguing that a private-law person may be the agent of a public-law person — a quite different proposition. Even taking that proposition seriously, Lesur fails to show that Bruxelles-Energie acts as agent of ABP; his explanations of a 'partnership between ABP and Centre de Tri' are confused and unsupported. The fact that the same individual is administrateur-délégué of both entities does not suffice to claim that Bruxelles-Energie's operations are driven by ABP, absent further specifics. Decisively: the jurisdictional split between the ordinary courts and the Council of State comes from the Constitution and the parties cannot derogate from it. Bruxelles-Energie's reference to a remedy before the Council of State in its rejection letter therefore has no bearing on jurisdiction. Conclusion: Bruxelles-Energie is not an 'autorité administrative' within Article 14 § 1, 1°. The Council is incompetent. The suspension application is rejected. The Council, however, denies Bruxelles-Energie its 770 EUR procedure indemnity: by misleading the bidder about the competent forum, it cannot be regarded as the party 'who has won the case' under Article 30/1 of the coordinated laws. For the same reason, Bruxelles-Energie itself bears the other costs (200 EUR roll fee + 24 EUR contribution). The intervener BST pays the 150 EUR intervention fee.
Why does this matter?
This ruling lays out two sharp lessons that rarely come together. First: the Council of State's jurisdiction flows from the Constitution, not from how the contracting authority chooses to label itself. A private company cannot become an 'autorité administrative' simply by pointing to the Council of State on its rejection letter. For bidders this means: before launching an extreme-urgency challenge to the Council, explicitly verify whether the contracting authority in your specific case is an administrative authority. A cooperative with a public minority shareholder does not in principle meet that test, even if the public shareholder plays a major role in day-to-day management. If in doubt, the ordinary civil court (interlocutory referral to the President of the court of first instance) stands ready — a wrong choice of forum costs you two or three weeks in the extreme-urgency context. Second: the Council penalises a contracting authority that points to the wrong forum in its notification by depriving it of its procedure indemnity and even loading the roll fees on it, even when it wins on the merits. That is an important nuance in Article 30/1 of the law on the Council of State: 'won the case' is not automatic, it requires that the winning party did not itself mislead the other party. For authorities: do not copy an 'appeal to the Council of State' paragraph into your rejection letter without first carefully checking whether you fall under that jurisdiction. Otherwise you will end up, even with complete vindication, with the bill.
The lesson
Before filing a suspension challenge against an award decision, conduct a formal jurisdictional analysis: is the contracting authority an 'autorité administrative' within Article 14 of the law on the Council of State? Check (a) the legal form, (b) the organic features (capital structure, articles of association, prerogatives of public power), and (c) the functional features (can it take unilateral binding decisions against third parties?). Never rely blindly on a reference in the rejection letter: an incorrect designation by the authority does not give the Council jurisdiction. For authorities that are not administrative authorities: do not mention a remedy before the Council of State in your rejection letters, otherwise you shoot yourself in the foot and, even when you win, you lose your procedure indemnity and pay the roll fees.
Ask yourself
For a contracting authority that is not obviously a 'classic' public authority (commune, social welfare office, ministry): have you sought a reasoned opinion on your qualification as an administrative authority before drafting your rejection letters? For a bidder considering an extreme-urgency challenge against a borderline entity's contract: have you verified in the first 48 hours after rejection whether the Council of State is competent — and kept the option of an interlocutory injunction before the President of the court of first instance as a plan B?
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 →