Delta Maintenance obtains the suspension, the housing company withdraws — and whoever sees an annulment action declared without object does not get the 20% extreme-urgency increase on the procedural indemnity
After the Council of State had suspended under extreme urgency, on 1 October 2020, the award by the Société de Logements du Plateau of a heating-maintenance contract to JPAL, the housing company withdrew that award on 28 October 2020; Delta Maintenance’s annulment action thereby became without object, the suspension was lifted and the company, as the party disguisedly annulled, pays the costs — but the procedural indemnity of 1,400 euros claimed ‘for both instances’ is reduced to the indexed basic amount of 770 euros, because the 20% increase for an extreme-urgency application accompanied by an annulment action is not due when that action is declared without object.
What happened?
On 17 June 2020 the Société de Logements du Plateau, a social housing company, awarded the contract for the maintenance and repair of the individual and collective heating installations and of the gas and oil water heaters in its dwellings to JPAL of Liège, the bidder with the most economically advantageous tender on the basis of price: a verified tender amount of 188,791.31 euros excluding VAT, or 200,118.85 euros with 6% VAT, for two years, renewable once for two years (so four years at most). Delta Maintenance, an unsuccessful bidder, challenged that decision. By judgment no. 248.416 of 1 October 2020 the Council of State ordered the suspension of execution under extreme urgency and dismissed the application for the remainder. On 21 October 2020 Delta Maintenance filed its annulment action; the housing company requested continuation of the proceedings on 30 October 2020, but by letter of 10 December 2020 reported that it had already withdrawn the contested decision on 28 October 2020. That withdrawal was notified to all bidders by registered letter of 15 January 2021, stating the remedies and the forms and time limits to be observed; no bidder challenged it in time. First auditor and head of section Christian Amelynck drew up a report, and by order of 1 August 2022 the chamber proposed to deal with the case without a hearing; no party requested one. The Council found that the withdrawal was definitive and the action had lost its object. On costs it applied its settled case law: the disappearance of the contested act through withdrawal is a form of disguised annulment (‘succédané d’une annulation contentieuse’), so the defending party counts as the losing party within the meaning of article 30/1 of the coordinated laws. Delta Maintenance had claimed a procedural indemnity of 1,400 euros ‘for both instances’. The Council recalled article 67, § 2 of the general procedural rules: the basic amount is increased by 20% when an extreme-urgency application is lodged together with an annulment action, but the third paragraph provides that no increase is due, among other cases, when the administrative litigation section decides that the annulment action is without object. The indemnity was therefore limited to the basic amount as indexed by ministerial decree of 22 June 2022: 770 euros. The operative part: the suspension of 1 October 2020 is lifted, there is no longer any need to rule on the annulment action, and the Société de Logements du Plateau bears the costs — roll fees of 400 euros, contributions of 40 euros and the procedural indemnity of 770 euros.
Why does this matter?
The judgment confirms the familiar mechanism — suspension, withdrawal, action without object, authority pays — but adds a concrete calculation rule that is often overlooked in practice. Whoever lodges an extreme-urgency application accompanied by an annulment action is in principle entitled to a procedural indemnity 20% above the basic amount (article 67, § 2 of the procedural rules). But that increase lapses as soon as the Council declares the annulment action without object, which is exactly what happens when the authority withdraws its decision. Delta Maintenance claimed 1,400 euros for ‘both instances’ and received 770 euros: the basic amount as indexed since 9 July 2022. The judgment thus illustrates two things at once. First, that the 2022 indexation also applies to proceedings introduced before that date but decided afterwards. Second, that for the authority a withdrawal is not only a way to correct a suspended award, but also limits the opposing party’s bill: the increased indemnity for the double action is lost, even though it was the suspension that prompted the withdrawal. For bidders it is a useful correction of inflated expectations: the practical result (the award is gone) is secured, the costs are reimbursed, but the amount remains modest against the cost of extreme-urgency proceedings. Note, finally, how long such a formal winding-up can take: the withdrawal dated from October 2020, the judgment from November 2022.
The lesson
For bidders: in the event of a withdrawal after suspension, do not count on the 20% increase of the procedural indemnity for the combined extreme-urgency and annulment action; article 67, § 2, third paragraph excludes it as soon as the annulment action is declared without object. Claim the basic amount and the costs, and budget your litigation strategy on that reality. Do check that the withdrawal was properly notified to all bidders, with the remedies, because only then is it definitive and does the case become without object. For authorities: withdrawing a suspended award is a legitimate way out, but you remain the losing party and pay roll fees, contributions and the indexed procedural indemnity — albeit without the extreme-urgency increase. If you notify the withdrawal immediately and completely, you close the proceedings faster than here, where more than two years passed between withdrawal and judgment.
Ask yourself
Do you know that the 20% increase of the procedural indemnity for an extreme-urgency application with annulment action lapses when that annulment action is declared without object? Have you tailored your claim for the procedural indemnity accordingly, or are you claiming an amount ‘for both instances’ that the Council will reduce anyway? Do you know the indexed basic amount applicable since 9 July 2022 (770 euros)? As an authority, have you notified the withdrawal to all bidders stating the remedies, forms and time limits? And do you realise that a withdrawal does not exempt you from the costs, but does cap them?
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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 →