Two letters from the registry, one ignored: Council of State dismisses damages claim because counsel didn't open the second envelope
The Council of State declares a second-ranked bidder's compensation claim concerning a Port of Brussels maintenance framework contract 'not filed' because its lawyers simply failed to open the second e-Procedure letter containing the separate €224 payment invitation — and the 'unavoidable error' plea they invoke is rejected.
What happened?
Atelier Jordens, a Brussels architecture firm, filed on 26 July 2024 an application with the Council of State against the 23 May 2024 award decision of the Société régionale du Port de Bruxelles. The Port had awarded the framework contract 'CSC 1445 — Maintenance of buildings and finishings' to IN ADVANCE, with Atelier Jordens ranked second. In the same application, Atelier Jordens requested both annulment and damages (indemnité réparatrice) — two distinct procedures, each requiring its own court fees of €224. The registry sent two separate letters via the e-Procedure platform on 26 July 2024: one for the annulment fees, one for the damages fees. Each letter contained its own structured communication code. The firm opened only the first letter, paid €224, and did not notice the second. On 31 July 2024 the platform sent an automatic reminder; this too went unnoticed. On 11 September 2024 the auditor requested application of Article 71, paragraph 4 of the Regent's Decree of 23 August 1948: if the bank account is not credited within thirty days, the claim is deemed not filed. At the 27 November 2024 hearing, Atelier Jordens invoked 'unavoidable error', arguing that the generic platform emails were indistinguishable. The Council rejects this. The two letters on the platform were materially different — the second opened with 'I hereby acknowledge receipt of your damages claim registered under G/A 242.579 / VI – 23086'. The payment invitations carried different structured communication codes, crucial for allocating payment to the correct file. And the automatic reminder of 31 July 2024 had gone equally unread. The damages claim is deemed not filed; the annulment application itself proceeds. Costs reserved.
Why does this matter?
For a second-ranked bidder considering both annulment and damages, this is a small but expensive lesson: each Council of State procedure has its own docket number and its own €224 court fee. Even if bundled in a single application. The registry sends two separate payment invitations via e-Procedure, each with a distinct structured communication code. One payment gets automatically allocated to the first procedure — the other is lost. 'Unavoidable error' is not accepted as an excuse when the letters themselves are distinguishable and an automatic reminder is sent. The practical consequence: your annulment may succeed, but the linked damages claim is forfeited — and a later, separate claim is bound by the sixty-day deadline of Article 11bis, which only begins running after a ruling on illegality.
The lesson
If you file a Council of State application combining annulment and damages: budget for 2 × €224 court fees (€448) and expect two separate payment invitations via e-Procedure. Open every letter the registry delivers on the platform — the generic email notification carries no reference and can look like a duplicate. Check that the number of payments matches the number of distinct claims in your application. Always copy the structured communication code verbatim — without it, your payment goes to the wrong docket.
Ask yourself
Have you filed an application combining annulment and damages? Log in to the e-Procedure platform and verify (1) you received two separate 'accusé de réception' letters, and (2) two €224 payments were made with distinct structured communication codes. If only one payment shows: make the second immediately — the thirty-day deadline is strict.
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 →