ENVU lets its action against Infrabel lapse and loses nothing: discontinuance, but Infrabel pays the costs because it had withdrawn its own decision
After Infrabel had withdrawn its decision declaring ENVU’s tender for the weed-control train irregular and the application for suspension had been dismissed, ENVU did not ask for its annulment action to be continued; the Council of State records the discontinuance but, because of that withdrawal, places all costs, including EUR 770 in procedural indemnity, on Infrabel.
What happened?
Infrabel put out a public services contract for weed control on the main tracks of its network: the hire of a weed-control train with qualified staff. On an unknown date Infrabel declared the tender of the French company Environmental Science FR (ENVU) irregular and awarded the contract to another bidder. ENVU sought suspension of that decision and brought an action for annulment on 16 February 2026. On 3 March 2026 Infrabel withdrew the contested decision. By judgment no. 266.107 of 19 March 2026 the Council of State dismissed the application for suspension. After that, ENVU went quiet. Article 17(10) of the coordinated laws on the Council of State provides that an applicant is presumed to discontinue the proceedings if, after its application for suspension has been dismissed, it does not file a request to continue within thirty days of notification of that judgment. ENVU filed no such request. On 12 May 2026 auditor Marie Lambert de Rouvroit asked for the simplified procedure of Article 11/3 of the general rules of procedure to be applied, and on 18 May 2026 the registry informed ENVU that the chamber would record the discontinuance unless it asked to be heard within fifteen days. That did not happen either. ENVU did, however, ask for the costs to be borne by Infrabel, including the procedural indemnity at the basic amount of EUR 770. The acting President of the VIth Chamber recorded the discontinuance but granted the costs request ‘because of the withdrawal that occurred’: Infrabel bears the EUR 200 roll fee, the EUR 26 contribution and the EUR 770 procedural indemnity.
Why does this matter?
Discontinuance sounds like giving up, and the presumption of Article 17(10) serves to close proceedings that the applicant no longer actively pursues after a dismissed application for suspension. This judgment shows that in practice it can also simply be the logical end of an action that has already achieved its aim. Infrabel had itself withdrawn the contested decision, so ENVU had no further reason to pursue annulment. By not filing a request to continue, it let the proceedings end in the simplest way. The decisive element is the costs ruling: the Council looks past the procedural form to the cause of the end of the proceedings, which is Infrabel’s withdrawal. That is why Infrabel bears the costs and the procedural indemnity. Together with judgment no. 266.107, this judgment completes the story of a single file: an award is challenged, the authority withdraws its decision, and the proceedings end twice without a ruling on the merits — with the costs ultimately landing on the contracting authority.
The lesson
For bidders: if the contracting authority has withdrawn the decision you are challenging, you need not doggedly pursue your annulment action. You can let the presumption of discontinuance operate, but then expressly ask for the costs and the procedural indemnity to be charged to the authority, referring to the withdrawal. Keep an eye on the time limits too: thirty days from notification of the suspension judgment for a request to continue, fifteen days from the registry’s letter to ask to be heard. For contracting authorities: a withdrawal ends the dispute, but not the bill. Even if the applicant drops the action, the Council may charge the costs to you because your withdrawal was what brought the proceedings to an end.
Ask yourself
As a bidder: has the contested decision been withdrawn, and have I made a conscious choice whether or not to continue the proceedings? If I do not ask for continuation, have I expressly claimed that the costs and the procedural indemnity be borne by the authority? Do I know the thirty-day time limit for a request to continue after an application for suspension has been dismissed? Am I monitoring whether the authority takes a new decision after the withdrawal? As a contracting authority: do I realise that a withdrawal after an action has been brought can leave me with the costs, even if the applicant discontinues?
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 →