Statutes approved on 16 May, delegation signed on 15 May: the Port of Namur awarded one day too early and lost its concession
The Council of State annuls the award of a domain concession because the awarding body — the 'bureau exécutif' — did not yet formally exist in the statutes on the day of the delegation.
What happened?
The Port autonome de Namur (PAN) tendered a domain concession for the multimodal platform in the port zone of Auvelais. Two candidates applied: Euro-Services (which had held the concession since 2013) and Ecodream. On 3 April 2019 the board of directors awarded it to Ecodream. After protest from Euro-Services, that same board withdrew its decision on 15 May 2019 and delegated — 'with a view to a swift decision before the expiry of the current contract on 30 June 2019' — the re-award to the 'bureau exécutif'. That bureau then awarded the concession again to Ecodream on 28 May 2019. Euro-Services went to the Council of State with one central question: was the bureau exécutif even allowed to take that decision? The facts are crucial. The decree of 29 March 2018 required PAN to amend its statutes: only one vice-chair could remain, and the concept of a 'bureau exécutif' was introduced. The board of directors had already approved those amendments on 11 July 2018 and submitted them to the Walloon Government, which approved them on 16 May 2019 — one day after the delegation of 15 May. But the approval decree was not published in the Belgian Official Gazette until 24 October 2019. The Council of State holds that moment to be decisive: before publication, the new statutes were not enforceable against third parties, and the old statutes (version of 27 May 2009) remained in force. In that old version, the 'bureau exécutif' did not exist. There was only a 'bureau' (chair, two vice-chairs, secretary) to which the statutes granted no powers whatsoever. Moreover, article 15 of the old statutes explicitly stated that the board of directors awards concessions. PAN defended itself with two arguments. First: the new article 12 would apply retroactively. Second: the old statutes permitted — in article 14, second paragraph — delegation of 'certain powers to one or more members' of the board. Both arguments are rejected. The Council of State holds that article 14(2) allows delegation only to individual members — not to a collegial body — and that those members must moreover be designated as individual delegates. The delegation of 15 May 2019 was therefore unlawful, and so too was the award of 28 May 2019. The first ground is well-founded. The decision is annulled.
Why does this matter?
Contracting authorities often operate with complex internal delegations: management committees, daily boards, restricted councils. Whenever time pressure arises — for instance because an existing contract is expiring — the reflex is to take the faster route. But if the statutes do not expressly provide for that delegation, or if a statutory amendment has not yet been published, you risk having your entire award overturned on a purely formal jurisdictional defect. For bidders, this also means it is worth checking which body actually took the award decision and whether that body has the power under the statutes then in force.
The lesson
As a contracting authority: before every award, verify that the decision-making body has the power to do so under the statutes legally in force on that day. For statutory amendments, what counts is not the approval date but the date of publication in the Official Gazette. As a bidder: look at who signed the award decision and compare that with the authority's statutes. A delegation to a 'collegial body' via a clause that only allows delegation to 'individual members' is not a valid delegation.
Ask yourself
Look at who signed the award decision: is it the board of directors itself, or a derived body (bureau, management committee, delegation)? If it is a derived body: is there a public statutory or regulatory text from which that power explicitly flows? And does that text predate the delegation decision?
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 →