The Belgian railways withdraw their non-selection five days before the hearing: no suspension, but no harm either — the application is declared inadmissible
The SACE – T-PALM consortium sought suspension under extreme urgency of its non-selection for the platform-raising works at Namur station, but the SNCB/NMBS withdrew that decision on 7 August 2026, four days before the hearing; because the withdrawal takes effect retroactively as of the date of the contested decision, the alleged illegalities had not harmed the applicants, and the second admissibility condition of article 14 of the Remedies Act was not met.
What happened?
The Belgian railway company tendered a works contract for raising platforms 1, 2-3 and 4-5 at Namur station (file no. WS2988197902, specifications no. 20-0000507 – KCC.006). By a decision of 7 July 2026, notified the same day by registered letter and email under the heading ‘Notice of non-selection’, it did not select the request to participate of the SACE – T-PALM consortium, citing an alleged lack of technical and professional capacity. On 22 July 2026 both companies sought suspension under extreme urgency and annulment of that decision. By order of 24 July the procedural calendar was set and the case listed for the hearing of 11 August 2026. By letter of 10 August the railway company announced that it had withdrawn the contested non-selection decision on 7 August 2026. At the hearing the parties were invited to comment on whether, in the light of that withdrawal, the application still met the conditions of article 15, which refers to article 14, of the Act of 17 June 2013. They referred to the Council of State’s recent case law and agreed that the applicants had lost their interest in the application for suspension. The Council followed that reading and spelled out the reasoning: the withdrawal operates retroactively as of the date on which the contested decision was taken, so that the alleged infringements — even assuming them established — neither harmed the applicants nor risked doing so. One of the two admissibility conditions of article 14 is therefore not met and the application must be declared inadmissible. The Council dismissed the application for suspension under extreme urgency, kept item 4 of the applicants’ file confidential at this stage, and reserved the costs, including the procedural indemnity.
Why does this matter?
An authority that withdraws its own decision while proceedings are pending dismantles the case — but the legal route by which that happens is not always the same, and the difference hits the wallet. Where a contested award is withdrawn after it has already been suspended, the Council usually speaks of an action that loses its object, treats the withdrawal as a disguised annulment, and places the costs on the authority. Here the Council takes a different entrance: it tests the admissibility condition of article 14 of the Remedies Act and finds that the retroactive withdrawal removes any harm, including threatened harm. The application therefore fails not for loss of object but for lack of interest, and is dismissed. For anyone litigating a suspension, that is no detail: the ruling says nothing about the merits of the criticism of the non-selection, and the costs and procedural indemnity are here expressly reserved rather than immediately charged to the authority. That the parties agreed at the hearing speeded up the disposal but did not remove the question. In practical terms the gain remains: the non-selection has disappeared from the legal order and the consortium can be assessed afresh — exactly what a suspension should have produced, but without any ruling on the capacity requirements the dispute was actually about.
The lesson
If you are not selected as a candidate or bidder and the authority withdraws that decision after you have gone to the Council of State, do not count on the Council still ruling on your complaints: the withdrawal operates retroactively and removes the harm on which your interest rests. Prepare for two things. Follow closely what happens after the withdrawal — a fresh selection decision may repeat the same reasons, and the clock then starts again with a new fifteen-day window for an extreme-urgency application. And keep your claim to the costs alive: if, as here, they are reserved, that discussion is postponed, not settled. If you are the contracting authority, this judgment shows how effective a timely withdrawal is: by withdrawing its decision four days before the hearing, the railway company deprived the application of its basis without the Council having to examine the alleged illegalities. That is a legitimate correction, not a ruse — but do not wait until after a suspension judgment, because the picture then changes and you usually foot the bill.
Ask yourself
Do you realise that a withdrawal during proceedings operates retroactively as of the date of the contested decision and thereby removes the harm on which your interest rests? Have you checked whether the new decision taken after the withdrawal relies on the same reasons, and which appeal period applies to it? Do you know that the Council may reserve the costs in such a case rather than charging them to the authority straight away? And as an authority: have you actually remedied the defects that prompted the withdrawal, or will you simply take the same non-selection decision again?
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 →