Beach bar next to the Zwin, run for 39 years: Council of State questions the 18-year term of Knokke’s beach concessions and suspends the award in Het Zoute
An operator who has run a beach bar on the lot next to the Zwin nature reserve for 39 years and finished tenth obtains suspension of the award of seven lots in the Zoute zone: the Council of State holds that beach concessions fall under Article III.11 of the Code of Economic Law and require an ‘appropriate limited duration’, while Knokke-Heist never justified the maximum term of 18 years — and that the municipality also failed to examine carefully concession fees of up to EUR 34.99/m² and the proposals’ conflicts with the provincial zoning plan.
What happened?
In 2026 the municipality of Knokke-Heist held a market consultation procedure for sub-concessions for beach bars on its beach. Under Article 13 of the concession guidelines a concession runs for nine years (2027-2035) and may be renewed once for nine years (2036-2044), provided the Flemish Region grants the beach to the municipality again. Proposals were scored on the financial offer (35 points), the core team (15) and the quality of operation and layout (50). In the Zoute zone seven lots were to be shared among eleven candidates. The applicant has run a beach bar as a sole trader for 39 years on lot 7, the only lot in Het Zoute set apart from the commercial centre and bordering the Zwin nature reserve. She finished tenth with 40.31/100 points, 9.75 points behind the seventh. The board approved the evaluation report on 28 August 2026; the extreme-urgency application followed on 11 September. Six parties intervened, each acting on behalf of a company being formed. Some procedural points first: a pleading note filed by the applicant on 28 September was accepted not as a procedural document but as ‘mere information’, since it contained no new facts. The application against the implicit decision not to award her a lot was inadmissible: for that, an applicant must show that after a suspension the authority would have no choice but to award to it. As in the cases for the Knokke and Duinbergen zones, State Councillor Patricia De Somere, acting President of the Xth Chamber, rejected the argument that these are services concessions: the reference to the Concessions Act in the head concession with the Region means only ‘where applicable’. The applicant therefore had to prove urgency, and did so on the basis of the financial plan in her own proposal: the survival of her only business is at stake. The first serious plea concerns the term. The municipality objected that the criticism of the guidelines came too late. The Council rejected that, referring to its judgment no. 265.966 of 11 March 2026: a bidder may assume the documents are lawful and need not raise an illegality during the procedure to preserve access to the court. Interest was also present: if no concession could be awarded for 9 plus 9 years, that affects the award decision itself, and the renewal depends only on a new regional concession. On the merits, the Council holds that a public domain concession is prima facie an ‘authorisation scheme’ within the meaning of the Code of Economic Law, and that the beach is a scarce natural resource, limited by its nature and not merely by policy. Article III.11 of the Code, which transposes the Services Directive, then requires a selection procedure with guarantees of impartiality and transparency, an ‘appropriate limited duration’ and no automatic renewal. According to recital 62 of the Services Directive, that duration must not restrict competition more than necessary to amortise the investments and provide a fair return on the capital invested. The administrative file contained no justification for a maximum term of 18 years, nor did the municipality offer one in its brief. The second serious point is the financial review. Precisely the three proposals from companies being formed offered EUR 34.99, 18.42 and 10/m², against EUR 1.94 to 8/m² from the other candidates. For two of the three, the evaluation report noted that a projected balance sheet was missing, ‘so that the financial position and ratios cannot be objectively assessed’, and for all three it raised reservations (high depreciation, reliance on external financing, high debt ratio, dependence on turnover growth). Yet the fees were called ‘feasible’, with a reference to ‘realised margins’ that new companies do not have — only projections. Validation by an ITAA-registered accountant or company auditor changed nothing. The third serious point is the planning review: pergolas prima facie do not fall within the single temporary structure of at most 60 m² that the zoning plan permits as a ‘consumption area’, paved terraces are not permitted, and deviations ‘in principle not permitted’ did count under other criteria. The general statement that such deviations are not a substantial irregularity was insufficient. Together the grievances could close the 9.75-point gap or render proposals irregular. The award of the seven lots in the Zoute zone was suspended; the remainder of the application was dismissed. The first auditor-head of section Ann Eylenbosch delivered a concurring opinion.
Why does this matter?
Of the three Knokke beach bar judgments of 23 October 2026, this one goes furthest, because it affects the concession documents themselves. The Council accepts that a beach bar is not a services concession, but brings in the Code of Economic Law: anyone allocating scarce sites on a natural resource such as the beach must do so for an ‘appropriate limited duration’ and be able to justify that duration by reference to the payback period of the investments. A term of 9 plus 9 years without any reasoning in the file is prima facie vulnerable. That argument applies beyond Knokke-Heist: every coastal municipality, and every authority allocating pitches, moorings or terraces at scarce locations, should check whether the chosen duration is substantiated. The judgment also confirms two lines from the parallel case for the Knokke zone (no. 268.134): even in a public domain concession the grantor must scrutinise exceptionally high bids — all the more awkward here because the evaluation report relied on ‘realised margins’ of companies that do not yet exist — and zoning deviations cannot be deferred to the permit stage with a general formula. Procedurally, the confirmation that a bidder may challenge the lawfulness of the guidelines only after the award, without any earlier reservation, is important.
The lesson
For candidates: criticism of the concession documents themselves — such as an excessive term — can still be raised after the award; you need not flag it during the procedure. In extreme-urgency proceedings, do not seek suspension of the ‘implicit refusal’ to award to you unless the authority would have no other choice after suspension; that part will be declared inadmissible. Do not file a pleading note expecting it to count as a procedural document. And look at who makes the conspicuously high bids: for new companies with no operating history, any ‘feasibility’ rests solely on projections. For grantors: explain in the file why the chosen term is needed to recoup the required investments with a reasonable return, and do not provide for a renewal that could be read as automatic. Test high concession fees against substantiated turnover forecasts, not against figures described as ‘realised’ when they are not. And decide for each proposal whether planning deviations fall within the permissible margin.
Ask yourself
As a grantor: does the file contain a quantified justification for the term, linked to the payback period of the investments? Does my procedure provide an impartial and transparent selection and avoid any advantage for the outgoing concession holder? For bids from companies being formed, have I checked whether the turnover and margin forecasts themselves are realistic? As a candidate: do the guidelines contain provisions (term, renewal, participation conditions) that I can challenge after an unfavourable award? Is my extreme-urgency application aimed at the award decision rather than at an implicit refusal for which I would have to prove a legal duty to award? Have I calculated how my grievances together could close the gap with the last awarded place?
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