Council of State lacks jurisdiction over termination of beach bar domain concession in Wenduine (De Haan) — decision originates in the concession agreement (art. 14-15 specifications), not in unilateral governmental authority — civil courts competent
The Council of State rejected the annulment appeal against the decision of De Haan's College of Mayor and Aldermen of 15 September 2023 to terminate the concession agreement for commercial-recreational space WEN1 (Wenduine beach bar) due to repeated non-operation, as the challenged decision is not a unilateral act of authority but originates in Articles 14 and 15 of the concession specifications to which the concession holder was contractually bound — the dispute falls under the jurisdiction of the civil courts and the Council of State lacks jurisdiction under Articles 144 and 145 of the Constitution — the claim for compensatory damages was likewise rejected as accessory.
What happened?
In 2015, the De Haan municipal council approved specifications for operating commercial-recreational spaces on the municipality's beaches. In December 2016, the College of Mayor and Aldermen awarded the concession for beach spot WEN1 in Wenduine to the applicant for 2017-2023, at an annual fee of EUR 5,500. During operation, the municipality repeatedly found the beach bar closed without valid reason (weekends of 10-11 June, 17-18 June, 25 August and 8 September 2023). After repeated formal warnings, the College decided on 15 September 2023 to terminate the concession agreement under Articles 14-15 of the specifications. The applicant argued before the Council of State that this was a unilateral administrative act within a domain concession. The Council found that the determining motive was the contractual sanction mechanism for non-operation, not unilateral authority, and declared itself without jurisdiction under Articles 144-145 of the Constitution. The compensatory damages claim was also rejected.
Why does this matter?
This ruling clarifies a fundamental jurisdictional question regarding domain concessions: the determining criterion is the legal basis of the decision — whether it derives its force from governmental authority conferred by law, or from the contract binding both parties. Even where the authority retains some discretionary power, the dispute remains essentially contractual when the termination is based on contractual provisions.
The lesson
As a concession holder: do not automatically assume that every decision by the authority within your domain concession is a unilateral act of authority. Analyze whether the decision is grounded in the contractual provisions (specifications) or in unilateral governmental power. As an authority: include clear contractual termination provisions in the specifications and follow the procedural steps carefully.
Ask yourself
As a concession holder: is the challenged measure based on contractual provisions from the specifications? Did you analyze the distinction between contractual disputes (civil courts) and unilateral administrative acts (Council of State) before filing the appeal? As an authority: did you follow the contractual sanction procedure carefully?
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 →