Olne withdraws the concession for the Bay Bonnet quarry three days before the appeal deadline expires — whoever still files an annulment action gets the procedural indemnity
The municipality of Olne awarded the concession for operating the Bay Bonnet quarry to a consortium around Entreprise Marcel Baguette and withdrew that decision on 14 December 2020, four days after the Council of State had dismissed the extreme-urgency application of the unselected consortium of Remo Milieubeheer, Recom, Cmix and Carrières de Sprimont et de Chanxhe; when those four nevertheless filed an annulment action, the municipality argued that they should bear the costs because the withdrawal had been communicated to them before the end of the appeal period — but the Council held that they could not be blamed, since the withdrawal was not yet definitive and the deadline was expiring, and ordered Olne to pay roll fees of 800 euros, a contribution of 20 euros and a procedural indemnity of 770 euros.
What happened?
Through specification no. 20191118 the Walloon municipality of Olne sought an operator for its Bay Bonnet quarry, in the form of a ‘contrat de fortage’, a concession under which the operator may extract stone against payment. Two consortia competed. By decision of 29 October 2020 the municipal executive decided not to select the tender of the consortium Remo Milieubeheer, Recom, Cmix and Carrières de Sprimont et de Chanxhe and to award the concession to a consortium without legal personality made up of Entreprise Marcel Baguette, Bodarwé Carrières, Joly and F.A.S. Services. The four unselected companies applied for suspension under extreme urgency; by judgment no. 249.195 of 10 December 2020 the Council of State admitted the intervention of the successful consortium, dismissed the application for suspension and settled the costs of those proceedings. Four days later, on 14 December 2020, the municipality nevertheless withdrew the contested decision. It notified that withdrawal to all bidders by registered letter of 16 December 2020. On 24 December 2020 — the sixty-day appeal period was coming to an end — the four companies still filed an annulment action. In a letter of 8 February 2021 informing the Council of the withdrawal, the municipality’s counsel argued that the withdrawal had been communicated to the applicants before the expiry of the period for the annulment action, so that the costs should be borne by them. No one challenged the withdrawal within the time limit. First auditor and head of section Christian Amelynck drew up a report; by order of 1 August 2022 the chamber proposed to deal with the case without a hearing, and no party requested one. The Council found that the withdrawal had become definitive and the action had lost its object. On costs it repeated that the disappearance of the contested act through withdrawal is a form of disguised annulment, so the municipality counts as the losing party within the meaning of article 30/1 of the coordinated laws. It rejected the municipality’s argument: the applicants cannot be blamed for filing an annulment action at a time when the withdrawal, communicated to them a few days earlier, was not yet definitive and the appeal period was expiring. They had requested ‘a procedural indemnity at the basic amount’; since the entry into force on 9 July 2022 of the ministerial decree of 22 June 2022, that basic amount is 770 euros. The Council admitted the intervention, found that there was no longer any need to rule on the annulment action, and ordered the municipality of Olne to pay the costs: roll fees of 800 euros, a contribution of 20 euros and a procedural indemnity of 770 euros, awarded to the four applicants at one quarter each. Strikingly, the operative part also lifts ‘the suspension ordered by judgment no. 249.195’, whereas according to the procedural history that same judgment had precisely dismissed the application for suspension — wording that recurs in the parallel judgment no. 255.089 of the same day.
Why does this matter?
The judgment answers a question that arises whenever an authority withdraws its decision while the appeal period is still running: must the bidder still file an annulment action, and who bears the costs if it does? The municipality of Olne considered that the applicants could have spared themselves the proceedings, because they knew of the withdrawal before lodging their application. The Council of State sees it differently. A withdrawal is definitive only once it has been notified to all bidders and no one challenges it within the time limit. As long as that is not established, the bidder runs the risk that the withdrawal itself is challenged or revoked while its own period for appealing the original award has meanwhile expired. Filing an action to preserve that period is therefore not abuse but prudence, and the authority that created the situation pays for it. The judgment is also one of the relatively rare cases concerning a concession rather than a classic public contract: a ‘contrat de fortage’ for a quarry falls under the same litigation, with the same cost rules. Finally, it confirms that the indexation of the procedural indemnity to 770 euros since 9 July 2022 applies to every case decided after that date, even if the application was filed in 2020, and that with several applicants the basic amount is shared between them, not multiplied.
The lesson
For bidders: never let a running appeal period expire because the authority ‘has withdrawn anyway’. As long as the withdrawal has not been notified to all bidders and the period for challenging it has not expired, file your annulment action to preserve your rights; the Council will not hold it against you and will award you the procedural indemnity. Expressly request the basic amount: the indexed 770 euros applies to every case decided after 9 July 2022. Be aware, though, that a single indemnity is shared among all applicants together. For authorities: if you want to avoid a further action after your withdrawal, notify it immediately and completely to all bidders, with the remedies and time limits, and consider letting those concerned know that you will not re-adopt the decision. But do not count on the Council placing the costs on the bidder because it ‘already knew’ of the withdrawal: as long as it is not definitive, you remain the losing party.
Ask yourself
Is the withdrawal you received already definitive — notified to all bidders, with the remedies, and has the period for challenging it expired — or is your own appeal period meanwhile running out? In that case, do you file an annulment action to preserve your rights, knowing that the Council will not treat it as recklessness? Have you requested the basic amount of the procedural indemnity, and do you know that it is shared among several applicants? As an authority, do you realise that a withdrawal during the appeal period does not exempt you from the costs of an action filed afterwards? And if you work with a concession: do you know that the same rules on withdrawal and costs apply as for a classic public contract?
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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 →