The Council of State suspends the Brussels casino award: the city passed over the EU foreign-subsidies rules and rewarded a server that had nothing to do with the specifications
The City of Brussels awarded the fifteen-year concession to operate the Brussels casino — valued at 750 million euros — to E.C.K., but the Council of State suspended that decision under extreme urgency because the city had taken into account, when scoring the vision note, a relocation of headquarters and online-gaming servers that appeared nowhere in the contract documents, described nine letters of recommendation as concrete commitments from about ten partners, and awarded the concession without the bidders having filed the declaration on foreign financial contributions required by the Foreign Subsidies Regulation.
What happened?
On 19 January 2026 the Brussels city council approved the terms of a call for a concession to operate the Brussels casino from 1 January 2027, for fifteen years — the duration of a class A licence — with an estimated value of 750 million euros excluding VAT. Well above the European threshold of 5,404,000 euros, hence published both in the Bulletin of Tenders and in the Official Journal of the European Union, and governed by the law of 17 June 2016 on concession contracts and the royal decree of 25 June 2017. Specification RF/26/CONCES/1026 defined the object precisely: the operation of a class I gaming establishment within the meaning of article 29, third paragraph, of the gaming act, in the former Galeries Anspach complex — 11,530 m² of casino, 950 m² of restaurant on the seventh floor and 1,885 m² of basement parking and storage, 14,365 m² in all — plus the hospitality outlets and the organisation of events. The building belongs to the city but is held on long lease by Nouvelles Galeries du Boulevard Anspach, which would grant the concessionaire a building right. The concession was to be awarded in a single phase without negotiation, to the regular tender that was economically most advantageous. After a contract notice of 26 March 2026 and four corrigenda, the final deadline for tenders was 5 June 2026. Six tenders came in: from Chaudfontaine Loisirs, E.C.K., Grand Casino de Dinant, Casinos Austria International Belgium, Circus Casino Bruxelles and Golden Palace Grand Casino Brussels. The city’s Property Board set aside Golden Palace’s tender for two substantial irregularities and proposed awarding to E.C.K. On 17 July 2026 the college adopted that report in full and awarded the concession to E.C.K. Casinos Austria International Belgium, present in Brussels since 2004 and operator of the Grand Casino Brussels Viage since 2010, lodged an application for suspension under extreme urgency on 31 July 2026. The margin was narrow: E.C.K. scored 91.02 points, Casinos Austria 87.74 — 3.28 points apart, while sub-criterion 1.1, the ‘vision note’, was worth 30 points on its own, on which E.C.K. received the maximum and Casinos Austria 20. The intervening party immediately objected that Casinos Austria’s own tender was irregular: its undertaking to make the premises available to the city 345 days a year would be unrealistic and contrary to article 9 of the royal decree of 26 June 2002, which excludes July and August. The Council did not follow it. The city had found no irregularity in that tender during its examination, and it is not for the Council to declare a tender irregular that the contracting authority did not so classify during the procedure; the exception for an indisputable irregularity was not met, since at the hearing the applicant gave a sufficiently plausible answer to each complaint. The Council did, however, find of its own motion that the application was inadmissible in its second object: a party seeking suspension of the implicit refusal to award it the concession must show that the authority had no option but to choose it, and Casinos Austria did not. On the merits the Council examined two pleas. The first concerned the vision note. In the contested decision the city weighed in that E.C.K. would move its registered office and its online-gaming servers to the Brussels-Capital Region. The city defended this as an element of local anchoring, which in its view was implicit in the vision note. The Council disagreed: the concession — and therefore the vision note — concerns only the operation of a physical class I gaming establishment in Brussels, for which a class A licence is required, and the award criteria mention neither online games nor servers. Citing the Court of Justice’s Succhi di Frutta judgment, it recalled that all conditions and arrangements of the award procedure must be set out clearly, precisely and unequivocally in the notice or the specifications, so that every reasonably informed and normally diligent bidder understands them in the same way. Bidders could not possibly infer from the contract documents that holding gaming servers on Brussels territory would be rewarded; by doing so anyway the city prima facie breached the principles of equality and transparency and the patere legem quam ipse fecisti principle. That the applicant did not demonstrate the concrete effect on the ranking was irrelevant: a risk of prejudice suffices, all the more because the Council may not assess the quality of the tenders itself. The second branch concerned nine documents E.C.K. had filed after the opening of the tenders at the city’s request, described in the award decision as concrete written commitments from about ten partners, on which the richness and credibility of its events vision was built. The Council read them. An employers’ association wishing Napoleon Games every success, a chess association saying it would be glad to extend its investments, two sports clubs and a sports federation with warm words, E.C.K.’s works council on the quality of social dialogue, the mayor of Knokke on a constructive collaboration, a former world chess champion and a production company. Only three of the nine contained any form of — still not firm — undertaking to organise events in Brussels; the rest were letters of recommendation containing no commitment at all. The wording in the award decision therefore found insufficient support in the file, and this branch too was held serious. The fourth plea brought into play a rule still rarely applied in Belgian procurement litigation: Foreign Subsidies Regulation (EU) 2022/2560. Reading articles 28(1) and 29(1) together, the Council held that once a contract or concession reaches the 250-million-euro threshold, every participating economic operator must either notify the foreign financial contributions concerned or draw up a declaration listing all contributions received and confirming that they are not subject to notification. That obligation does not depend on proof that foreign contributions exist, let alone that they distort competition — the value of the concession is enough. In this file only the applicant appeared to have filed a compliant declaration; the other operators, including E.C.K., had not. The Council turned around the complaint that the applicant had not proved this: she has no access to the confidential tenders, and it is for the contracting authority to place the supporting documents in the administrative file. The city’s argument that the regulation binds only economic operators also failed. Article 29(2) requires the contracting authority to transmit the notifications and declarations to the European Commission without delay; article 29(3) requires it to declare irregular and reject a tender lacking a declaration or notification — after possibly allowing ten working days; and article 32(1) provides that during the examination all steps of the procedure may continue except the award itself. Compliance must therefore precede the award decision, not merely the conclusion of the concession. The Council stressed that the authority need not itself detect distortive subsidies; its only duty is to ensure the Commission can exercise its powers. It did not rule on the regularity of the individual tenders, but on that of the award decision: by not complying with articles 28 and 29 the city affected the regularity of the award procedure and therefore of the award. This plea too was serious. The Council admitted E.C.K.’s intervention, suspended the execution of the decision of 17 July 2026, dismissed the application for the rest, ordered immediate execution of its judgment, kept the tenders and related documents confidential at this stage, and reserved the costs including the procedural indemnity.
Why does this matter?
This is, as far as is known, one of the first Belgian judgments in which the Foreign Subsidies Regulation decides the outcome of an award dispute, and the reasoning is strict and clear. The declaration or notification duty is not a substantive test for distortive subsidies but a threshold rule: if the contract or concession reaches 250 million euros, every participant must file a document, including those that received no foreign contribution at all. That shifts the centre of gravity to a formality easily overlooked — and the sanction is heavy: the authority must reject a tender without the document and may not award until it has complied with the regulation. The City of Brussels argued that it was enough to be in order before concluding the concession; the Council rejected that on the basis of the text itself. For large Belgian contracts and concessions this means, concretely, that the FSR element belongs in the drafting of the notice, not in contract signature. The first plea is at least as usable, because it exposes two classic traps. The first is weighing something the authority genuinely values — here local anchoring through a relocation of headquarters and servers — that appears nowhere in the contract documents. However sympathetic the motive, rewarding it after the tenders are opened rewards a bidder for something the others could not prepare for. The second is the temptation to present documents in an award report as stronger than they are. Nine letters became ‘concrete written commitments from about ten partners’; the Council counted three with any undertaking and none with a firm one. That is not a difference of appraisal but a factual inaccuracy, and it suffices where the points gap is small enough — 3.28 points against a sub-criterion worth 30. Finally, the judgment confirms two procedural lines that recur in every procurement dispute: the Council will not declare irregular a tender the authority itself found regular, and for an interest in a plea a risk of prejudice suffices — the applicant need not prove that the ranking would actually have been different.
The lesson
If, as a contracting authority, you value a contract or concession at 250 million euros or more, the Foreign Subsidies Regulation belongs in your file from day one: state the notification or declaration duty in the notice, require the document with the tender, allow whoever forgets it the ten working days, reject the tender that still lacks it, transmit everything to the European Commission without delay — and only then award. You need not go looking for foreign subsidies yourself; you only need to ensure the Commission can play its part. Beyond that, reward nothing that is not in your contract documents, however legitimate it seems. If you want to reward local anchoring, write it out beforehand as a criterion, with the elements you will assess. And draft your award report so that every characterisation withstands a check against the file: do not call a letter of recommendation a commitment, or an intention a firm undertaking. As a bidder, always file the FSR declaration for a contract above the threshold, even if you are certain you received no foreign contributions — its absence makes your tender irregular. If you receive an award decision with a narrow points gap, read the reasoning word by word against the administrative file: an element that was not among the criteria, or a document presented as weightier than it is, suffices for a serious plea. And remember that you need not prove the concrete effect on the ranking: a risk of prejudice is enough. Do not, however, simply seek suspension of the refusal to award to you, unless you can show the authority had no other option.
Ask yourself
Does your contract or concession reach the 250-million-euro threshold, and if so does your notice state the notification or declaration duty under the Foreign Subsidies Regulation? Have you received the notification or declaration from every bidder, have you transmitted them to the European Commission, and did you do so before awarding? Can every element you weigh in your assessment be traced back to the award criteria as you published them? Does your award report describe the documents filed exactly as they are, or does it make more of them? As a bidder: did you attach the FSR declaration, even though you received no foreign contributions? Have you checked whether your competitor scored points for something that was not in the specifications? And do you know that a risk of prejudice suffices to give you an interest in your plea, as long as the points gap is smaller than what the contested criterion can yield?
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 →