Procedural indemnity doesn't double for extreme urgency plus annulment — and 'no hearing' is no ground for awarding the minimum
When Proximus withdrew its annulment challenge against the Fluvius-Telenet NetCo deal after three years of proceedings, the Council of State ruled that Fluvius receives only one procedural indemnity — not two — but increased by 20% above the base amount, and that the absence of a hearing is no special reason to reduce the indemnity to the minimum.
What happened?
In June 2020 Fluvius System Operator — the operating arm of the Flemish intermunicipal associations — launched an open call for an operational partner to build a high-speed electronic communication network in Flanders. After selection, Fluvius chose Telenet as partner; in July 2022 both companies signed a framework agreement pooling their fibre and cable assets into a joint venture called 'NetCo'. Proximus — a competitor in electronic communications — filed on 3 August 2022 an annulment application before the Council of State, with an accompanying extreme-urgency suspension request. By ruling no. 254.340 of 25 August 2022, the Council rejected the UDN: the NetCo project falls outside public procurement and concession law. Telenet's intervention was accepted. Proximus continued the annulment procedure through briefings. Three years later, on 13 February 2025, Proximus withdrew its application. The case was handled without hearing, deliberated on 2 April 2025. The only remaining dispute concerned the procedural indemnity. Fluvius claimed €770 for the UDN plus €770 for the annulment — €1,540 total. Proximus asked, citing the absence of a hearing, for the minimum amount under Article 30/1(2) of the coordinated laws. The Council took its own position. Under Article 67(2) of the Regent's Decree of 23 August 1948: when a UDN is combined with an annulment, the winning party does NOT receive two separate base amounts, but the base amount INCREASED by 20%. That is: €770 × 1.20 = €924. Fluvius thus receives less than requested, but more than a single base amount. On Proximus's minimum-amount request, the Council observed that Article 30/1(2) lists the criteria for deviation exhaustively: (1) financial means of the losing party, (2) complexity of the case, (3) manifestly unreasonable character of the situation. None justified reduction. The absence of a hearing does not of itself indicate a 'non-complex' case nor an 'unreasonable situation'. Proceedings ran normally; Fluvius's counsel did the work (filing brief, preparing for a possible hearing). Early termination was Proximus's own doing. Final account: withdrawal acknowledged. Proximus pays UDN + annulment costs: €400 filing fee (€200 × 2) + €44 contribution + €924 procedural indemnity = €1,368 to Fluvius. Telenet bears its own intervention costs (€150).
Why does this matter?
For every bid manager combining a UDN with an annulment — or considering doing so — this ruling is an important financial warning. Fluvius's calculation (2 × €770 = €1,540) was not an unreasonable expectation: each procedure its own base amount. The Council definitively confirms this is not how it works. UDN + annulment are treated as one whole for indemnity calculation, with a 20% flat increase for the extra work. Conversely, the ruling shows 'no hearing held' does not automatically lead to the minimum indemnity: the Council is guided by exhaustive legal criteria (means, complexity, unreasonableness), not by procedural formality. A party withdrawing after full briefing will pay the full indemnity. That may weigh in the decision to withdraw: early withdrawal does not automatically save on indemnity.
The lesson
If you combine a UDN suspension with an annulment appeal: upon loss (or withdrawal) budget for ONE procedural indemnity with 20% uplift — not two separate base amounts. At a base of €770, that equals €924. Plus filing fees (2 × €200 = €400) and contributions (2 × €22 = €44). Total exposure on loss of both procedures: at least €1,368 to the winning party. Do not withdraw assuming 'no hearing = minimum indemnity': the Council works with exhaustive legal criteria, and 'absence of hearing' is not one of them.
Ask yourself
Are you facing the choice to withdraw a UDN and/or annulment challenge at the Council of State? Calculate your total cost: 2 × €200 filing fee + 2 × €22 contribution + €924 procedural indemnity (= €770 × 1.2) + possibly intervener costs. Under €1,400? Count on that amount on withdrawal. Do not assume 'withdrawal before hearing' automatically reduces costs — that argument is not accepted.
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 →