A municipality that will later have to declare its earthworks to the concession-holder is not, for that reason alone, a valid challenger of the concession award
The Council of State dismisses the city of Andenne's annulment challenge against the Walloon Region's award of the 'soil management and traceability' concession to the non-profit Walterre as inadmissible for lack of standing — as a future user of that service Andenne is not distinguishable from any other landowner in Wallonia who might one day excavate soil.
What happened?
On 18 March 2019 the Walloon Minister of Environment awarded a service concession for the management and traceability of excavated soil in Wallonia to the non-profit Walterre. The concession implements the 1 March 2018 decree and the 5 July 2018 Walloon Government order, which subject every soil movement to prior notification, quality control and certification by the concession-holder. On 19 June 2019 the city of Andenne — not as a bidder, but as a future user of the service — sought suspension and annulment, arguing that as road manager and large landowner it would frequently be subject to Walterre's binding decisions. A prior ruling (n° 245.940 of 25 October 2019) had already rejected suspension. On the merits, the Council of State again addresses admissibility. Andenne argued (1) that the award decision had a mixed regulatory/individual character, and (2) that it had a personal and direct interest as a future user. Both rejected. The regulatory content lies in the underlying decree and order, not in the individual award. As to standing, Andenne's interest as 'future user' is not distinguishable from that of any landowner in Wallonia who might excavate soil — not sufficiently individualised under Article 19 of the consolidated laws on the Council of State. A request for a preliminary question to the Constitutional Court (asking whether Article 14 of the 17 June 2013 Act limits standing to evicted bidders) was rejected: standing was not denied because Andenne wasn't a candidate, but concretely examined and found absent. The Aarhus Convention did not help either: the award decision is not a 'specific activity' under Article 6 of that convention. Application dismissed; Andenne ordered to pay 400 EUR roll rights, 40 EUR contribution and 840 EUR procedural indemnity to the Region. Walterre bears its own 150 EUR intervention fee.
Why does this matter?
Service concessions are a growing tool for outsourcing public tasks — waste management, soil management, parking, mobility services. This ruling traces the outer boundary of who may challenge such an award: not every 'stakeholder' in a broad sense, but only someone with personal and direct interest — typically a rejected bidder or candidate. A local authority that will later be supervised by the concession-holder does not automatically qualify. For contracting authorities, the risk of annulment by 'third-party users' of a concession is small; for would-be challengers, the battle is often lost on admissibility unless they were candidates.
The lesson
If you want to challenge a concession award without having been a bidder, you must show an interest that is (1) personal and individualised — not identical to that of every other citizen or authority in similar position — and (2) flowing directly from the contested act itself, not from the underlying decree or implementing order. A grievance like 'we will later be subject to decisions of the concession-holder' is hypothetical and indirect, hence insufficient. The proper route is to challenge the underlying regulation, not the individual award.
Ask yourself
Are you a non-bidder seeking to challenge an award or concession? Ask yourself: can I point to a concrete, individualised harm that only I (or a small group like me) suffer, and that flows directly from this award and not from the general regulatory framework? If not, your appeal will end at the inadmissibility stage, with roll rights and procedural indemnity on your side.
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 →