A solar park on municipal land is not yet a public contract: WPD Benelux founders on the urgency requirement it thought it did not have to prove
WPD Benelux challenged under extreme urgency the decision by which the municipality of Les Bons Villers declared its bid for an agrivoltaic project on 6.2 hectares of municipal land irregular and awarded the project to its only competitor, but the Council of State held prima facie that granting a 25-year building right is neither a public contract nor a concession, so that not the lenient suspension regime of the Act of 17 June 2013 applied but article 17 of the coordinated laws on the Council of State — and the urgency requirement, which WPD believed it did not have to prove, was not met.
What happened?
The municipality of Les Bons Villers, owner of two parcels totalling about 6.2 hectares in Frasnes-lez-Gosselies near the N5, launched a call for candidates for the study, realisation and operation of an agrivoltaic project: combining solar panels with sustainable agriculture and biodiversity, legally structured as a 25-year building right (superficies). WPD Benelux submitted a bid with an annual fee of 20,000 euros — explained in its project presentation as 4,000 euros per installed MW for an estimated capacity of 4.7 MWp — or 500,000 euros over the full term. By letter of 18 October 2022, received by WPD on 20 October, the municipality stated that although the bid met all minimum technical requirements, it was irregular because that explanation allegedly contained a reservation making comparison of the fees impossible; the project went to the only other candidate, according to the file Ether Energy. WPD protested by telephone and email the same day — the fee was indeed a fixed amount — but received no written reply. On 4 November 2022, fifteen days later, it filed an action for annulment with an application for suspension under extreme urgency. At the hearing of 23 November the Council first had to determine the applicable regime. Prima facie the operation is not a public contract: the municipality acquires no services for its own economic needs — the operator manages installations and land autonomously and independently. Nor is it a concession: no service to users is being outsourced, and the municipal interest in green energy does not change that. The lenient article 15 of the Act of 17 June 2013, which allows suspension without proof of urgency, therefore did not apply; WPD fell back on article 17 of the coordinated laws, under which the applicant must demonstrate urgency in or with the application. That is precisely where things went wrong: WPD had expressly stated in its application that it did not have to prove ‘the specific elements of the urgency’, and the disadvantages invoked under the heading ‘admissibility’ — loss of profit and of experience in a niche market — remained unsubstantiated. The application was rejected on 8 December 2022 by acting president David De Roy, on the concurring opinion of first auditor head of section Christian Amelynck. At the municipality’s request both bids remain provisionally confidential on grounds of business secrecy; the costs, including the procedural indemnity, were reserved.
Why does this matter?
The qualification question here is no academic issue but the hinge on which the whole case turns. Within the scope of the Act of 17 June 2013 an unsuccessful bidder can obtain suspension ‘without proof of urgency having to be provided’; outside it, the ordinary law of article 17 applies, with a full burden of proof for urgency plus the exceptional conditions of the extreme-urgency procedure. The Council draws the line sharply: an authority that makes land available through a building right and lets the operator do business autonomously is not purchasing services (no contract) and is not outsourcing a service to users (no concession) — even though the project unmistakably serves the municipal interest. For the fast-growing market of renewable-energy projects on public land that is a substantial warning: competing for such projects does not automatically bring the legal protection of procurement litigation. The judgment also shows mercilessly what happens when an applicant misjudges its procedural regime: WPD built its application on the premise of article 15 and stood empty-handed when the Council applied article 17 — a strategic gamble that sank the application three weeks after the qualification debate, without the merits ever being addressed.
The lesson
Anyone competing for a project on public land must qualify the operation itself before every procedural step: is it a contract or concession under the Act of 17 June 2013, or an ordinary grant of rights in immovable property? Do not count on the lenient suspension regime of article 15 if the qualification is debatable: plead in the alternative, and provide in the application itself the full proof of urgency that article 17 requires — concrete, quantified and personal, not a mere reference to lost profit and experience. Waiting fifteen days to file an extreme-urgency application is, moreover, playing with fire. For authorities monetising land for renewable energy: the structure of the operation determines the litigation regime. A pure building-right construction without purchased services falls outside the public procurement rules — but whoever writes services for its own benefit into the project documents brings the whole of procurement law back in.
Ask yourself
Before starting suspension proceedings, have you yourself qualified whether the operation is a public contract, a concession or a purely property-law construction — and what that means for your burden of proof? Does your application contain a full, concrete urgency argument, even if you believe you are exempt from it? Can you substantiate the alleged harm — lost profit, lost reference experience — with figures and documents? And as an authority: do your project documents reflect the chosen qualification, or do they create the impression that you are purchasing services and are therefore subject to procurement law?
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 →