A registered letter from the Council of State left unclaimed? Six years of litigation for nothing
The Council of State declares the applicant's withdrawal in a six-year-old annulment case against a selection decision by TMVW (Flemish water utility), because the applicant left a registered letter with the negative auditor's report unclaimed at bpost and then failed to file a request to continue proceedings.
What happened?
In March 2019, NV G. filed an annulment appeal against two decisions of the Flemish water utility TMVW: a selection decision from 1 March 2018 and a decision of 28 February 2019 excluding NV G. from lot 6. NV A., the selected company, intervened. Six years later — in March 2025 — auditor Frederick Ongena issued a report recommending dismissal. On 30 April 2025, the chief registrar sent the statutory notice under Article 14quater of the procedural rules: after a negative auditor's report, the applicant has 30 days to file a request to continue, failing which withdrawal is presumed. Bpost attempted delivery at NV G.'s domicile (her lawyer's office in Dilbeek) on 2 May 2025. No one was there. The letter was never collected and returned to the registry. NV G. did not file a continuation request. The Council applied the presumption of withdrawal and closed the case. Costs: €200 filing fee + €20 contribution + €770 procedural indemnity to TMVW + €150 to the intervening party — €1,140 total to lose the case without any substantive ruling.
Why does this matter?
Article 21, seventh paragraph is a silent trip-wire in every annulment case. Once the auditor recommends dismissal, you have 30 days to confirm you want to continue. The clock starts from service of the report by registered mail to the chosen domicile. A law firm that moves, a secretary who is out, a bpost delivery that goes wrong — you may not even know, but the case dies. The costs are manageable, but six years of litigation for nothing is painful.
The lesson
Always verify that your chosen domicile (usually your lawyer's office) reliably receives and collects registered mail from the Council of State. Ask counsel explicitly to treat Council registered mail as top priority — especially once an auditor's report is expected. And if you've heard nothing after a long procedure, call your lawyer yourself. The 30-day deadline of Article 21, §7 waits for no one.
Ask yourself
Does my lawyer know the auditor's report has been issued, and does the firm have a process to handle registered mail from the Council of State the same day it arrives?
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 →