Bailiff services for forced debt recovery: not a public contract, but still a competitive process
The Council of State rejects a bailiff firm's challenge against the award of a contract for forced recovery of municipal debts, finding that such bailiff services — as exercise of public authority — are excluded from the Public Procurement Act under article 28 §1, 4°, e), meaning the expedited procedures of the Remedies Act are unavailable and the applicant failed to prove urgency.
What happened?
The municipality of Quiévrain and its CPAS launched a contract for forced recovery of fiscal debts, non-fiscal debts and administrative fines through a bailiff, for the period until May 2029. The estimated value was €30,000. Five bailiff firms were invited to submit offers; three did so. The municipality awarded the contract to Unilex based on three qualitative elements: contractual guarantees (no charges in case of failed recovery due to the bailiff's own error), operational availability (four bailiffs reachable 24/7 by mobile phone), and the possibility of meetings at the municipality's offices or at Unilex's nearby premises. Price was not an award criterion — bailiff fees are set by law. LEGALINK, one of the unsuccessful firms, sought suspension under the extreme urgency procedure, invoking the Remedies Act of 17 June 2013 which creates a presumption of urgency for public procurement disputes. The municipality argued the contract falls outside the Public Procurement Act. It referred to article 28 §1, 4°, e) of the Act of 17 June 2016, which excludes 'other legal services linked, even occasionally, to the exercise of public authority in the Kingdom'. The Council of State examined the matter thoroughly. It found that bailiffs exercising forced recovery wield coercive power: they serve enforcement orders and carry out forced executions based on enforceable titles. This is a legal monopoly (article 519 §1 Judicial Code) with regulated tariffs (article 522 §1). Citing CJEU case law (Commission/Germany, Kirschstein) and an opinion from its own legislative section, the Council confirmed this constitutes direct and specific participation in the exercise of public authority under article 51 TFEU. Crucially, the Council distinguished amicable debt recovery (article 519 §2 Judicial Code), which is not monopolistic, has no regulated tariff, and does not involve exercise of public authority — amicable recovery therefore does fall under procurement law. But the contract at issue concerned exclusively forced recovery after issuance of enforcement orders. The Council also rejected the argument that the municipality had 'voluntarily' applied procurement law by organising a competitive process and using the term 'marché'. The award decision expressly referenced article 28 to indicate the contract fell outside procurement law, and specified the competition was organised based on general principles of good governance (equality, non-discrimination, transparency). Even voluntary submission to the procurement act would not make the Remedies Act applicable. The claim was rejected: without the Remedies Act's presumption of urgency, the applicant had to prove urgency itself, which it failed to do.
Why does this matter?
This ruling clarifies the boundary between bailiff services that do and do not fall under procurement law — a distinction often overlooked in practice. Three points matter. First, the Council confirms that forced debt recovery by bailiffs — based on enforceable titles, under a legal monopoly with regulated tariffs — constitutes exercise of public authority excluded under article 28 §1, 4°, e). Second, the Council draws a sharp distinction with amicable recovery, which has no monopoly and no public authority element: a contract covering both forced and amicable recovery could follow a different regime. Third, the fact that a contracting authority organises a competitive process for an excluded service — out of respect for principles of good governance — does not make the Remedies Act applicable. Choosing the wrong legal remedy costs precious time.
The lesson
As a bailiff firm competing for public recovery contracts: always verify whether the contract concerns forced recovery (enforceable titles, enforcement orders, legal monopoly) or amicable recovery. For forced recovery, procurement law does not apply and the Remedies Act's presumption of urgency is unavailable. To challenge the award, you must prove urgency yourself through the ordinary Council of State procedure. As a contracting authority: when awarding bailiff services for forced recovery through a competitive process, expressly reference article 28 §1, 4°, e) in your award decision and state explicitly that the competition is based on general principles of good governance, not on procurement law. This prevents disputes about the applicable regime.
Ask yourself
As a bailiff firm challenging an award for recovery services: have you verified whether the contract concerns forced or amicable recovery, and have you chosen the correct legal remedy? As a contracting authority: have you expressly referenced the exclusion under article 28 §1, 4°, e) in your award decision and explained why you nevertheless organised a competitive process?
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 →