Concession or public contract? The difference comes down to one question: who loses money if the market collapses?
The Council of State rejects Clear Channel's extreme-urgency suspension against the award to JCDecaux of the Antwerp concession for 150 city advertising signs (8 years, 85% price / 15% sustainability) because the operational risk lies entirely with the concessionaire — who must invest in the infrastructure, pay an annual retributie even for signs without advertisers, and bear what the Court of Justice calls 'the whims of the market'.
What happened?
On 23 September 2022 the city of Antwerp approved a tender for an 8-year exploitation of 150 city signs (probably 135 analog and 15 digital, spread across the city and its districts). The city chose a sui generis procedure with prior publication under the 2016 Concessions Act, with two award criteria: annual concession fee (85/100) and sustainability, CSR & transport (15/100). The concessionaire would itself install, maintain and repair the infrastructure, and pay a fee per analog and digital location. Part of the advertising space would be reserved for the city's public communications and — at metro entrances — passenger information for De Lijn (free for the authority). On 27 January 2023 the city awarded the concession to JCDecaux Belgium. Clear Channel Belgium filed an extreme-urgency suspension on 13 February 2023. Two pleas. First plea — the central question: the agreement should have been qualified as a public contract (not a concession), which would have meant the city could not have used 'sui generis with negotiation', because public contracts are in principle awarded under open or restricted procedures without negotiation. Clear Channel argued that the agreement meets all the criteria of a public contract (services rendered to the city, contracting authority, onerous title) and pointed to an earlier judgment (no. 220,141 of 3 July 2012, coincidentally between JCDecaux as applicant and Clear Channel as intervener) on dog-waste street furniture, where the Council had qualified a comparable agreement as a public contract. The Council does not follow that argument. The crucial criterion separating concession from public contract — since Directive 2014/23/EU and the 2016 Concessions Act — is the transfer of operational or exploitation risk to the concessionaire. Here that risk lies entirely with JCDecaux: it must invest in the signs, install and maintain them, and pay an annual fee to the city, while its revenue depends entirely on advertiser demand. The fact that part of the signs is reserved for public communication (free for the city) does not shift the risk to the city — on the contrary, it increases the concessionaire's risk, because those parts of the signs generate no revenue. The 2012 judgment does not apply: it concerned the older figure of 'public service concession' (Belgian administrative law), which is materially distinct from 'service concession' under EU law. Second plea: violation of the equality principle because the award decision would deviate from the tender documents on when the fee is due (from year 2 onwards). The tender documents say the fee is due for every location that has been 'made available' to the concessionaire as soon as there are no obstacles to placing infrastructure and advertising — so not only for signs that are actively exploited. The award decision, however, speaks of 'active signs' on the inventory from year 2. Clear Channel sees a substantial modification giving JCDecaux an unfair advantage (less price risk). The Council does not follow this either: the term 'active signs' in the award decision is an administrative summary for financial reporting under the local government decree, not a deviation from the tender. The confidential JCDecaux offer confirms it filled in the inventory in conformity with the tender, without reservations or modifications. Both pleas are 'not serious'. The suspension is rejected.
Why does this matter?
This is one of the clearest judgments in recent years on the dividing line between concession and public contract — a distinction that decides over multi-million-euro contracts (think not only of advertising signs, but also parking concessions, bike-sharing systems, paid terraces, coffee bars in public buildings, and all other 'exploitable public spaces'). Three practical consequences follow. One: for every 'mixed' agreement, both as a bid manager and as an authority's lawyer, you must run the exploitation-risk test. Who pays for the infrastructure? Who pays whom? And who loses money if the market collapses? The answer to that third question determines the legal qualification. Two: the fact that the contracting authority imposes requirements on appearance, location, or even reserves part of the capacity for itself (like public communication here) does NOT shift the exploitation risk to it — those elements actually reinforce the concessionaire's risk. Anyone arguing the opposite carries a high burden of proof. Three: old case law (pre-2014/2016) on 'public service concession' can no longer be relied on against a 'service concession' under EU law. They are distinct figures with one shared key feature (exploitation risk) but different subject matter (public service requirement versus any service). Building new arguments on old case law leads nowhere.
The lesson
Before preparing a suspension claim against a 'sui generis concession' awarded by a local authority, ask three questions, in this order: (1) Who invests in and pays for the physical infrastructure? If the operator does, you are likely in concession territory. (2) Who pays whom? If the operator pays the authority (concession fee), that is a strong concession signal; if the authority pays the operator for services, that points to a public contract. (3) Who loses money if the market collapses — if there are no advertisers, no tenants, no customers? If the answer is 'the operator', that is a concession and the authority can use a more flexible procedure under sui generis rules. Arguing that 'the authority benefits' or 'imposes requirements' does not tip the analysis. Build your pleas on the exploitation risk itself — for instance by showing that the authority guarantees the operator a minimum revenue or would directly pass through revenue — and not on secondary features of the agreement.
Ask yourself
For the contract you are challenging, have you mapped three financial flows: (1) the investment in infrastructure (who pays?), (2) the annual flows between the parties (who pays whom?), and (3) the end users (do they pay the operator directly or the authority?). On which of these flows does market-demand risk rest? If the operator could realistically lose money under normal conditions, this is most likely a concession and the authority has a wide choice of procedure. Have you tested the older case law (pre-2016) you are relying on against the new statutory definition of 'service concession' — or are you still arguing under the framework of the 'public service concession'?
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 →