RTBF could not procure its own statutory auditor — that power belongs to the French Community Government
The Council of State annuls RTBF's decision to designate its statutory auditor for 2023-2025 via a public procurement procedure, because the decree of 9 January 2003 vests that designation power exclusively in the French Community Government — a mere formal post-hoc approval does not suffice.
What happened?
RTBF — the French-speaking public broadcaster — launched a negotiated procedure without prior publication (reference PNDAPP2023.036) to designate its statutory auditor for fiscal years 2023, 2024 and 2025. On 13 October 2023, RTBF's Director General awarded the contract to RSM Interaudit. Callens, Vandelanotte & Theunissen, a rejected bidder, sought suspension and annulment. The key dispute: the decree of the French Community of 9 January 2003 on transparency and control of public bodies provides in article 45 that 'statutory auditors are designated by the Government' — half from the Belgian Institute of Auditors and half from the Court of Audit. Article 52 adds that the Government determines their resources and remuneration. The parliamentary record makes clear that the legislator wanted to give the Government 'full discretionary power', because the auditors' control operates on behalf of, and in the interest of, the Government and Parliament — not of the controlled body. In ruling 258.265 of 20 December 2023, the Council had already suspended the award decision, finding the auditor's ex officio plea serious. Critical fact: the minutes of RTBF's board meeting of 20 October 2023 record the government commissioners stating that, after board approval, the Government merely had to 'proceed with the formal designation' — a 'purely formal step'. The note to the Government of 23 October 2023 likewise asked the Government to 'proceed with the formal designation'. The supposed Government decision of 9 November 2023 was therefore not the exercise of an autonomous designation power, but a rubber stamp on a decision already taken by RTBF — in flagrant breach of the decree. RTBF and RSM Interaudit defended themselves with three arguments: (1) the Government had exercised its power by deciding 'on a proposal', like a contracting authority deciding on a designer's report; (2) the designation also served RTBF's own needs; and (3) one could reason by analogy with the Companies Code and the Walloon decree of 12 February 2004. The Council rejected all three. A designer's report is a material act, not a legal decision — whereas RTBF actually issued a reasoned award decision with appeal rights mentioned. The auditors' control serves the Government and Parliament, not the controlled body. And analogy with other regimes cannot override a specific statutory framework. After the suspension, no party filed a request to continue the procedure. The Council then applied article 17, §6 and annulled the award decision through the abridged procedure. RTBF bears €200 court costs, €24 contribution and €770 procedural indemnity.
Why does this matter?
This ruling draws an important line between what can and cannot be procured. Not every 'designation' of a service provider is a procurement matter. Where a special law or decree expressly vests designation power in a specific authority (a minister, a government, a board), the controlled or beneficiary body cannot itself run the procedure with the sole intent of having the competent authority 'formally approve' afterward. That is not only legally invalid — it also subverts the purpose of the control mechanism. For public-sector bid managers, this means that before any procurement decision, you must verify that designation authority truly rests with the contracting authority — and not with a higher authority that is supposed to oversee it.
The lesson
Before launching a procurement for an appointment regulated by a specific decree or special law (statutory auditor, government commissioner, public-body auditor, jury member, external expert, ombudsperson), first check the legal designation authority. If the law assigns that power to a higher authority with full discretion, a procurement run by the controlled body is not a valid instrument — even with a formal post-hoc approval. Ask the competent authority to organize the procedure itself, or use a different selection mechanism that respects its full discretion.
Ask yourself
For every appointment of an auditor, expert or controller governed by a special law or decree: have you explicitly verified that statutory designation authority lies with your contracting authority, rather than with a higher supervisory body? A formal post-hoc approval does not 'rescue' the procedure.
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 →