Annulment appeal for Oostende casino concession rejected: 15-year duration linked to gaming permit is lawful, capacity commitment need not be reconfirmed in lengthy procedure, and competition distortion not proven
The annulment appeal against the third award decision for the exclusive Oostende casino concession is rejected — the 15-year duration (once renewable) is justified by the indissoluble link with the Class A gaming permit, the third-party capacity commitment need not be reconfirmed during a lengthy procedure absent indications of withdrawal, and the allegations of competition-distorting conduct via IT access to the competitor's server are insufficiently proven given the shared server's 'apartment model' and the absence of a criminal complaint.
What happened?
The City of Oostende tendered a concession for the exclusive operation of a Class I gaming establishment (casino) via negotiated procedure with prior publication. Two bidders: Casino Kursaal Oostende (incumbent) and Infinity Gaming Knokke. Infinity offered a higher price and scored 100 points versus 84.4. The case had a turbulent procedural history: the first award was suspended because competition-distorting allegations were not investigated; the second was suspended because the expert report was not shared with bidders. After a thorough IT expert investigation, a third award decision was taken in Infinity's favour. Casino Kursaal raised three grounds. The first challenged the 15-year concession duration (once renewable to 30 years) under Article 37 of the Concessions Act. The Council found this is a hybrid concession governed by both the Concessions Act 2016 and the Gaming Act 1999; the 15-year period mirrors the Class A gaming permit duration, and the renewal is conditional, not automatic. The second ground challenged the currency of CAIB's capacity commitment after 2.5 years. The Council distinguished between the offer validity period and the capacity commitment, which applies for the concession period under Article 49. Without indications of withdrawal, no reconfirmation is required. The third ground alleged that Infinity accessed Casino Kursaal's confidential accounting data through IT systems. The expert found the server was shared ('apartment model') by five entities; login did not equal access to private sections. The knowledge of turnover figures was explained by a director's previous operational management experience and public Gaming Commission reports. No criminal complaint was filed, undermining the allegations' credibility. All three grounds were rejected.
Why does this matter?
This ruling is instructive on three fronts. First, for hybrid concessions linked to sector-specific permits, the concession duration may be aligned with the permit duration without violating duration limits. Second, a third-party capacity commitment differs from the offer validity period and need not be periodically reconfirmed absent indications of withdrawal. Third, allegations of competition distortion via IT access face a heavy burden of proof: hypothetical possibilities and findings on a shared server are insufficient, and the absence of a criminal complaint undermines credibility.
The lesson
As authority awarding a hybrid concession: align the duration with the sector-specific permit and document the link. As tenderer relying on third-party capacity: the commitment applies for the concession period, not the procedure's duration — but monitor changes that could affect capacity. When alleging competition distortion: provide concrete evidence, not hypotheses. The burden of proof is high — consider filing a criminal complaint if you believe IT crimes occurred, and don't store sensitive data on servers shared with competitors.
Ask yourself
As authority: have I linked the concession duration to the relevant permit duration and documented the rationale? As tenderer: is my third party's capacity commitment still current? Are there corporate structure changes the authority should know about? When alleging competition distortion: do I have concrete technical evidence beyond hypothetical possibilities? Have I considered filing a criminal complaint?
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 →