Same quarry, same withdrawal, 70 euros less: whoever asks for a procedural indemnity of 700 euros in the application does not get 770
The consortium Nelles Frères, Loiseau and Établissements Jaco, whose tender for the concession of the Bay Bonnet quarry had been rejected by the municipality of Olne as substantially irregular, saw its extreme-urgency application dismissed on 10 December 2020 and filed an annulment action on 21 December 2020, a few days after the municipality had withdrawn the award; the Council of State declared the action without object, rejected the municipality’s argument that the applicants should bear the costs because they already knew of the withdrawal, and ordered Olne to pay roll fees of 600 euros, a contribution of 20 euros and a procedural indemnity of 700 euros — the amount requested in the 2020 application, and not the basic amount since indexed to 770 euros that the parallel applicants in judgment no. 255.088 did receive.
What happened?
For the operation of its Bay Bonnet quarry through a ‘contrat de fortage’ the municipality of Olne received, among others, a tender from the consortium Nelles Frères, Loiseau and Établissements Jaco. By decision of 29 October 2020 the municipal executive considered that tender substantially irregular and awarded the concession to the consortium Entreprise Marcel Baguette, Bodarwé Carrières, Joly and F.A.S. Services. The three companies applied for suspension under extreme urgency; by judgment no. 249.194 of 10 December 2020 the Council of State dismissed that application, admitted the intervention of the successful consortium and settled the costs of the suspension proceedings. On 14 December 2020 the municipality withdrew the award decision; it notified that withdrawal to all bidders by registered letter of 16 December 2020. On 21 December 2020 Nelles Frères, Loiseau and Jaco nevertheless filed an annulment action, requesting ‘a procedural indemnity of 700 euros’ — the basic amount applicable at the time. In its letter of 8 February 2021 to the Council, the municipality’s counsel argued that the withdrawal had been communicated to the applicants before the expiry of the appeal period, so that they should bear the costs. No one challenged the withdrawal within the time limit. After the report of first auditor and head of section Christian Amelynck and the order of 1 August 2022, the case was dealt with without a hearing. The Council found that the withdrawal was definitive and the action had lost its object, and repeated that the disappearance of the contested act through withdrawal is a disguised annulment, so that the municipality counts as the losing party. The applicants cannot be blamed for filing their action while the withdrawal, communicated to them a few days earlier, was not yet definitive and the deadline was expiring. The Council therefore awarded them ‘a procedural indemnity of 700 euros’ — the amount requested — and not the 770 euros that has been the basic amount since the indexation of 9 July 2022 and that the Council awarded the same day, in twin judgment no. 255.088, to the other consortium, which had requested ‘the basic amount’ without a figure. The operative part: intervention admitted, ‘the suspension ordered by judgment no. 249.194’ lifted (although according to the procedural history that judgment had dismissed the suspension), no further ruling needed, and the municipality of Olne bears the costs: roll fees of 600 euros, a contribution of 20 euros and a procedural indemnity of 700 euros, to the three applicants at one third each.
Why does this matter?
Read side by side, judgments nos. 255.088 and 255.089 reveal a detail with financial consequences. Both consortia lost their extreme-urgency application, both filed an annulment action after the withdrawal, both prevailed on costs. But one had asked in 2020 for ‘a procedural indemnity at the basic amount’ and received 770 euros, the amount applicable since 9 July 2022; the other had written ‘700 euros’ — the correct basic amount at the time — and received exactly that. The Council of State awards no more than what is claimed, and does not of its own motion correct an outdated figure upwards. The difference is small, but the principle is not: whoever fixes an amount in the application bears the risk of any later indexation, especially in proceedings that, as here, drag on for two years. For the rest, the judgment confirms what no. 255.088 also states: a withdrawal during the appeal period does not exempt the authority from the costs of an action filed afterwards, as long as that withdrawal was not yet definitive.
The lesson
For bidders: phrase your claim for the procedural indemnity as ‘the basic amount’ or ‘the indexed basic amount’, not as a fixed figure. Annulment proceedings easily take two years; if the amount is indexed in the meantime, you only get the new amount if your claim leaves room for it. And file your action as long as the withdrawal is not definitive and your deadline is expiring — the Council will not hold it against you. For authorities: a withdrawal after the opposing party has lost its extreme-urgency application is often sensible, but you pay the costs of the annulment action that still follows; so notify the withdrawal immediately and completely.
Ask yourself
Do you claim ‘the basic amount’ of the procedural indemnity in your application, or a figure that may be outdated in two years? Do you know that the Council awards no more than you have claimed, even after indexation? Did you file your annulment action while the withdrawal was not yet definitive and your deadline was expiring? And as an authority: have you notified the withdrawal to all bidders with the remedies, and do you accept that you bear the costs of an action filed before it became definitive?
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 →