Council of State lacks jurisdiction over appeal against three-year exclusion under Article 48 of the Execution Decree — dispute regarding contract performance belongs to the judicial courts
The Council of State rejects the annulment appeal against the decision by the Municipality of Beveren to exclude NV Norré-Behaegel from participation in contracts for three years due to persistent shortcomings (34 formal notices of default), because the exclusion under Article 48 of the Execution Decree falls within the performance of a contract and therefore belongs to the jurisdiction of the judicial courts.
What happened?
In 2018, the Municipality of Beveren awarded the public works contract 'Renovation of the Gaverlandwijk' to NV Aannemingsbedrijf Norré-Behaegel. During execution, 34 formal notices of default were drawn up. On 27 September 2021, the college refused provisional acceptance. On 19 April 2022, it imposed fines and approved final acceptance. On 9 May 2022, the college announced its intention to exclude the contractor for three years under Article 48 of the Execution Decree of 14 January 2013 due to persistent shortcomings. The contractor was heard on 31 August 2022. On 3 October 2022, the college confirmed the three-year exclusion from the date of acceptance (19 April 2022). It noted the contractor had taken self-cleaning measures but held these could be assessed in future procurement procedures under Article 70 of the Public Procurement Act 2016, not in the exclusion decision itself. The contractor appealed to the Council of State. The respondent raised a jurisdictional objection: the Article 48 exclusion is a measure within contract performance, and contract performance disputes belong to the judicial courts. The applicant invoked the authority's discretionary power and ruling no. 255,438 of 9 January 2023. The Council held that the contested decision falls within contract performance: discretionary power does not change the contractual nature of the dispute. The reference to Article 70 (self-cleaning measures) applies to future procurement procedures, not to the current contract's execution. Ruling no. 255,438 concerned a different situation — withdrawal from a qualification system — and actually confirmed the lack of jurisdiction for Article 48 decisions. The jurisdictional objection was well-founded and the appeal was rejected. The case was decided without a hearing under Article 26 §2 of the procedural rules.
Why does this matter?
This ruling confirms the established case law that the Council of State lacks jurisdiction over appeals against exclusion decisions under Article 48 of the Execution Decree. Such decisions fall within contract performance and belong to the judicial courts (Article 144 of the Constitution). The ruling also clarifies that self-cleaning measures (Article 70 of the 2016 Act) only apply to future procurement procedures: an excluded contractor can demonstrate in a new procedure that it has taken sufficient corrective measures, but this does not apply to the exclusion decision itself.
The lesson
A three-year exclusion under Article 48 of the Execution Decree is a contractual measure falling under the jurisdiction of the civil courts, not the Council of State. Anyone wishing to challenge such an exclusion must go to the ordinary courts. Self-cleaning measures (Article 70) are not relevant to assessing the exclusion decision itself, only to future procurement procedures — an excluded contractor can then prove it has taken sufficient corrective measures to demonstrate reliability.
Ask yourself
As contracting authority: when I want to exclude a contractor under Article 48 of the Execution Decree, am I aware that any appeal will go to the judicial courts, not the Council of State? Have I heard the contractor beforehand and reasoned the decision as Article 48 requires? As excluded contractor: have I filed my appeal with the correct court (civil court, not Council of State)? Am I aware that self-cleaning measures are only relevant for future procurement procedures?
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 →