Two procedures, one indemnity: no double €770 when the case becomes moot
The Council of State declares Cohezio's annulment appeal against the award of the SEPPT contract to CESI moot after the contracting authority withdrew the decision, but grants Cohezio only one €770 procedural indemnity — not two — despite its parallel suspension proceedings.
What happened?
On 10 November 2023, the Fédération Wallonie-Bruxelles awarded the contract for the appointment of an External Service for Prevention and Protection at Work (SEPPT, MP5167) to CESI. Cohezio, a competing prevention service, challenged the award. It first filed an urgent suspension request, which succeeded: ruling no. 258.355 of 16 January 2024 suspended the award and allowed CESI's intervention. On 8 January 2024 Cohezio had already filed its annulment appeal. Less than a month later — on 9 January 2024, one day before the suspension ruling — the Fédération Wallonie-Bruxelles itself withdrew the contested decision. All bidders were notified by email and registered letter that same day. Notably, it does not appear from the file that those withdrawal letters mentioned appeal deadlines. Nevertheless, the general 60-day appeal deadline plus 4 months for defective notification (Article 19 of the coordinated laws) has long expired without anyone challenging the withdrawal. The withdrawal is therefore final, and the annulment appeal loses its purpose. Cohezio requested a €700 procedural indemnity 'both in the urgent procedure and the annulment procedure' — doubled. The Council refused. Article 67, §2, third paragraph of the procedural rules allows no increase when the case is moot. Only one indemnity, at the basic indexed rate: €770. The intervening party CESI also bears its own €150 intervention fee. The remaining costs (€200 filing fee + €24 contribution + €770 indemnity) are borne by the Fédération Wallonie-Bruxelles.
Why does this matter?
This ruling corrects a common misunderstanding: that you can stack two procedural indemnities when you first file for suspension and then for annulment. The Council says clearly: for a case declared moot, only one indemnity — and no increase. For bid managers challenging an award: do not count on stacked recovery. It also illustrates that contracting authorities under pressure withdraw quickly — here literally one day before the suspension ruling — which confirms the impact of a well-prepared suspension request.
The lesson
If you file both a suspension request and an annulment appeal against the same decision and the authority withdraws it, request only one procedural indemnity — not two. You get €770, period. Focus your strategic energy on the substantive result (the withdrawal itself) rather than on stacked cost recovery that will not happen.
Ask yourself
Am I requesting only one €770 procedural indemnity in my annulment appeal after a successful suspension, or am I trying to stack two — which will not work when the case is declared moot?
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 →