Even without a bid, you can still demand the paperwork: intermunicipal associations must disclose everything, not only their 'public task'
The Council of State annuls the Flemish FOI appeals body's inadmissibility ruling against Proximus's transparency request on the Fluvius-Telenet NetCo deal, because intermunicipal associations qualify as 'local authorities' under the Governance Decree and are therefore required to disclose all their administrative documents — not only those relating to a 'public task'.
What happened?
In 2020 Fluvius System Operator — the operating arm of eleven Flemish intermunicipal associations — launched a call for an operational partner to roll out a FTTH fibre network in Flanders. In June 2020 Telenet was selected as partner; in July 2022 Fluvius and Telenet signed a framework agreement creating a joint venture 'NetCo' pooling both parties' cable networks. Proximus, a losing contender from the start, requested under the Flemish Governance Decree (Bestuursdecreet) all administrative documents concerning the deal, both from Fluvius itself and from each intermunicipal association. On 9 September 2022 Fluvius's counsel refused, invoking commercial confidentiality exceptions. Proximus appealed to the Flemish FOI appeals body. On 28 October 2022 that body declared the appeal inadmissible: Fluvius qualifies only as an 'institution with a public task' under Article II.28(1)(3) of the Governance Decree, meaning transparency only applies to its 'public task' — i.e. regulated gas and electricity distribution. Fibre, the body held, is a purely commercial activity outside the scope of the transparency regime. It invoked a VREG opinion and the Council of State's earlier ruling no. 254.340 (25 August 2022), which had confirmed that the NetCo project itself falls outside public procurement and concession law. Proximus challenged this before the Council of State. The Council sided with Proximus on the second ground. The critical point: Article II.28(1) of the Governance Decree carefully distinguishes categories. The 'public-task' restriction applies only to category 3° ('institutions with a public task') — not to category 2° ('local authorities'). Intermunicipal associations are local authorities under Article I.3(5)(e). The FOI appeals body therefore wrongly subjected them to the public-task test. For local authorities, full transparency applies — subject only to the specific exceptions in Articles II.33-II.39 (commercial secrets, confidentiality of negotiations, etc.). The Council annuls the FOI appeals body's inadmissibility ruling. The case returns to that body, which must now rule on the merits of whether the intermunicipal associations can justify their refusal under specific exceptions.
Why does this matter?
The case is not about a tender award, but it addresses a question every bid manager faces: how do you obtain information about a deal concluded outside any formal tender? When a semi-public player like an intermunicipal association sets up a commercial joint venture with a private partner — and the deal itself falls outside procurement law — FOI law remains the most effective lever. This ruling confirms that intermunicipal associations cannot hide behind a 'not a public task' argument. Their full administrative documentation is in principle disclosable, unless they can concretely substantiate a specific exception.
The lesson
As a competitor seeking visibility on a non-tendered deal: request the underlying documents at every level simultaneously — from the operating company AND from each of the individual intermunicipal associations or municipalities. The 'public-task' restriction only applies to 'institutions with a public task'. Intermunicipal associations and municipalities are local authorities: all their documentation is in principle disclosable. If you receive a refusal, scrutinise which specific exception is invoked — a generic 'commercial interest' or 'outside public task' argument is insufficient.
Ask yourself
Are you filing an FOI request with a semi-public body? First verify its category: 'local authority' (Art. II.28(1)(2) Governance Decree — no public-task limitation) or 'institution with a public task' (Art. II.28(1)(3) — limited to the public task). Intermunicipal associations fall in the first category. If refused because 'commercial activity falls outside public task', you have strong grounds to challenge.
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 →