Loss of purpose of annulment action after withdrawal of SNCB rolling stock supply award — increased procedural indemnity for late notification of withdrawal
The Council of State found there was no longer cause to rule on NORDGLASS's annulment action against the SNCB's award of a supply contract for bay frame chassis for M6 rolling stock, the SNCB having withdrawn the contested decision on 29 January 2021 — but only informing the Council and the applicant on 11 January 2024 — with an increased procedural indemnity of €924 due to the late notification.
What happened?
The SNCB launched a supply contract for complete bay frame chassis for M6 rolling stock via negotiated procedure with prior competition. The contract was awarded to SA Industrias Diaz. The Council of State ordered suspension of the award on 22 December 2020. Polish company NORDGLASS filed an annulment action on 6 January 2021. On 29 January 2021, the SNCB withdrew the award decision and terminated the procurement procedure. However, it only informed the Council and the applicant of the withdrawal on 11 January 2024 in its final pleading — nearly three years later. All tenderers had been notified by registered letters of 12 July 2021, which reproduced the withdrawal reasons and mentioned legal remedies, though the decision instrument was not enclosed. The Council found the withdrawal had become definitive. The SNCB was deemed the unsuccessful party. The SNCB's request to halve the procedural indemnity on connexity grounds was rejected: the cases were not joined, the applicants' situations differed, and the applications were not identical. The Council awarded an increased indemnity of €924, as the late notification forced NORDGLASS to file unnecessary pleadings. Costs (€400 + €40 + €924) were charged to the SNCB.
Why does this matter?
This ruling highlights two important aspects. First, a withdrawal not notified to the Council or the applicant for nearly three years can still be considered definitive and deprive the action of its purpose, provided tenderers were informed and none challenged the withdrawal. Second, late notification of withdrawal has financial consequences: the Council awards an increased procedural indemnity to compensate unnecessarily incurred litigation costs.
The lesson
As a contracting authority: if you withdraw the contested decision, immediately inform the Council and all parties. Late notification justifies an increased procedural indemnity. Enclose the withdrawal decision instrument. As a tenderer: maintain your action after withdrawal — you will obtain a costs award. If notification was late, request an increased indemnity for unnecessarily incurred costs.
Ask yourself
As a contracting authority: have you notified the withdrawal to the Council and all parties? Was the decision instrument enclosed? Was notification timely? As a tenderer: were you informed of a withdrawal? Has it become definitive? Did you incur unnecessary costs due to late notification?
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 →