Applicant loses on urgency — but the State still pays all costs for misleading reference to article 15 of the 17 June 2013 Act
The Council of State rejects an urgent suspension request against a non-selection for a legal-representation contract of the Immigration Office because such contracts fall outside the 17 June 2016 Procurement Act under article 28 and therefore also outside the 17 June 2013 Remedies Act — but orders the State to pay all costs because its notification letter wrongly referred to article 15 of that Act and misled the applicant.
What happened?
The Belgian Immigration Office (DVZ) has worked since 1 July 2021 with seven law firms for representing the Belgian State in disputes under the Aliens Act of 15 December 1980. The contract runs until 30 June 2026. On 13 May 2025 the DVZ invited new candidates through the bar associations, explicitly referring to the exclusion in article 28, §1, 4°, a) and b) of the 17 June 2016 Procurement Act. The applicant — a sole practitioner already working for DVZ since 2021 — applied under the published selection criteria (experience in immigration law and firm organisation, with particular emphasis on availability, on-call duty and simultaneous representation). On 18 February 2026 DVZ decided not to retain the applicant: sole practitioner, no structurally built secretariat (reliance on a freelance assistant), insufficient detail on weekend and night availability, external collaborations not structurally organised, structural capacity limited to a single lawyer. The notification letter referred the applicant to article 15 of the 17 June 2013 Remedies Act and a 15-day appeal period. The applicant filed for urgent suspension on 4 March 2026 on that basis. The State argued: the contract falls under the article 28 exclusion for legal representation services; the 17 June 2013 Act applies only to contracts covered by the 17 June 2016 Act, so article 15 cannot apply. The applicable regime is article 17 of the coordinated Council of State Acts, which requires a serious plea AND concretely substantiated urgency. The 14th Chamber agreed. Urgency requires precise, concrete and verifiable evidence that an ordinary suspension procedure would come too late. A mere reference to the 1 July 2026 start date of the new contract — more than three months away — is insufficient. Urgency not established; application rejected. The twist: the Council of State nonetheless ordered the State to pay the costs, because its notification letter wrongly referred to article 15 of the 17 June 2013 Act and thereby misled the applicant about the correct remedies and procedure. The defect that led to the rejection is, to a decisive extent, attributable to the State's lack of care in drafting the notification. Consequently the State receives no procedural indemnity and must bear the court fee (200 euros) and contribution (26 euros) itself — an unusual costs decision that makes the sanction on a careless remedy notice visible.
Why does this matter?
Legal representation contracts and other 'intuitu personae' services under article 28 of the 17 June 2016 Act are often placed without the parties fully realising that the 17 June 2013 Remedies Act (with its urgent-suspension regime, standstill period and shortened appeal deadlines) does not apply. Applicants relying on the wrong provision risk losing on urgency — as here. Conversely: authorities that routinely refer to article 15 of the 17 June 2013 Act 'just to be safe' create an expectation they themselves do not meet, and may be ordered to pay costs even if they win on the merits. For both contracting authorities and candidates the lesson is the same: check first whether the contract falls inside or outside the scope of the Procurement Act.
The lesson
If you award a contract that falls under the article 28 exclusion (legal representation, certain legal advice, some R&D services), do not use your standard notification template referring to article 15 of the 17 June 2013 Act. Refer correctly to article 17 of the coordinated Council of State Acts. If you receive a non-selection decision referring to article 15, check first yourself whether the contract falls under that Act — do not blindly rely on what the letter says. For urgent suspension under article 17, urgency must be concretely, specifically and verifiably substantiated: a reference to the start date of the successor contract alone does not suffice if that date is more than three months away.
Ask yourself
For contracting authorities: does your standard notification automatically include 'article 15 of the 17 June 2013 Act' in the remedies paragraph? Have you checked this for contracts that fall under the article 28 exclusions (legal, certain R&D, civil protection…)? For candidates: before filing urgent suspension, did you independently verify which legal basis applies, and did you substantiate urgency with concrete figures (deadlines, damage, revenue loss) rather than merely pointing to a future date?
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 →