Partial annulment of remarketing domain concessions Genk-Zuid: halting the procedure justified, but new minimum transhipment volume of 20,800 tonnes per hectare not substantiated
The Council of State annuls De Vlaamse Waterweg's decision to organise a new award procedure for domain concessions at the Genk-Zuid industrial site with a mandatory minimum annual transhipment volume of 800 TEU or 20,800 tonnes per hectare, finding that the realistic character of this volume — nearly four times higher than the minimum for the first-line plot — was not examined, but rejects the appeal against the decision to halt the original procedure.
What happened?
De Vlaamse Waterweg manages industrial land near the Albert Canal and organised a market consultation in 2021 for granting domain concessions at the Genk-Zuid industrial estate (former Ford site), divided into five plots (A to E) for 27 years. Only plot C had direct canal access (first-line waterfront); the other plots were second-line. The consultation explicitly stated this was not a public procurement but that principles of good governance, transparency and equal competition would apply. Only plot C had a minimum transhipment obligation (60,000 tonnes/year or 5,454 tonnes/ha); no minimum applied to the other plots. Four criteria applied: concession fee (30 points), waterway transhipment guarantees (50 points), business plan (10 points) and speed of commissioning (10 points). Eleven companies submitted candidacies. MG Real Estate and EUTRACO applied for plots B and D. An initial evaluation report of 18 May 2022 proposed awarding plot D to the applicants, who offered an average annual transhipment of 8,597 tonnes per hectare. This item was however not placed on the board agenda. A second report of 8 June 2022 noted that the selected candidate for plot C (Z) offered volumes many times higher than both the minimum and other candidates. The conclusion was that insufficient transhipment was guaranteed for plots A, B and D and a new procedure with minimum obligations was required. The board decided on 13 July 2022 to award plot C to Z, halt the procedure for remaining plots, and launch remarketing with a minimum of 800 TEU or 20,800 tonnes per hectare. The applicants challenged both decisions for breach of the duty of substantive reasoning and the duty of care. Regarding the first decision (halting the procedure for plot D), the Council found the motive legitimate: pursuing higher volumes given the scarcity of waterfront land. The appeal was rejected on this point. Regarding the second decision (remarketing with a minimum of 20,800 tonnes/ha), the Council found that the applicants credibly showed there was no link between imposing a minimum in the first procedure and the height of offered volumes. The minimum of 20,800 tonnes/ha was nearly four times higher than the minimum for the better-located first-line plot C (5,454 tonnes/ha). De Vlaamse Waterweg did not contest that it had not examined the realistic character of this volume. Its reference to the contractual penalty mechanism rather confirmed the suggestion that Z's proposed volumes for plot C might be speculative. The plea was well-founded to this extent. The Council annulled the remarketing decision with minimum 800 TEU/20,800 tonnes/ha for plots B and D, and rejected the appeal for the remainder.
Why does this matter?
This ruling shows that principles of substantive reasoning and due care also apply outside the domain of public procurement when a public authority grants concessionary rights or restarts procedures. The Council accepts that De Vlaamse Waterweg may adjust its ambitions and halt a running procedure to pursue higher transhipment volumes — that falls within its discretionary power. But when it launches a new procedure with a minimum volume nearly four times higher than the previously applied minimum, it must substantiate why this volume is achievable and realistic, especially for less favourably located plots. Referring to the exceptionally high volumes of one candidate for a different, better-located plot is insufficient — particularly when the speculative character of those volumes cannot be excluded.
The lesson
As an authority granting domain concessions or organising market consultations: halting a procedure to pursue higher ambitions is permissible, but imposing a minimum requirement that drastically deviates from earlier benchmarks requires proper substantiation. Do not base your minimum volumes solely on outlier proposals from one candidate for a different, better-located plot without examining whether those volumes are realistic. A contractual penalty mechanism does not replace prior reality testing — on the contrary, it may confirm the suggestion of speculative bidding.
Ask yourself
When halting and restarting an award procedure with stricter conditions: can I substantiate why the new minimum requirements are achievable and realistic? Am I relying on representative data or on an outlier proposal from one candidate? Have I examined whether the volumes offered in the first round — which I now use as a benchmark — are realistic or potentially speculative?
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 →