34 applications, 34 court fees, 34 procedural indemnities: OTW pays 12,784 euros after withdrawing its own school transport procedures
Coach Partners Brabant challenged, through 34 separate applications, the launch of as many OTW school transport routes for which only carriers listed in the operating perimeter were invited without any publication; when OTW abandoned the awards two weeks later, all the actions lost their object, yet the Council of State placed the full costs of the 34 proceedings on OTW — 6,800 euros in court fees, 748 euros in contributions and 5,236 euros in procedural indemnities.
What happened?
On 14 April 2022 Coach Partners Brabant lodged 34 applications against as many decisions of the Opérateur de Transport de Wallonie approving the contract documents for 34 school transport routes — routes 7007, 7010, 7028, 7035, 7060, 7061, 7093, 7106, 7108, 7112, 7114, 7128, 7130, 7138, 7332, 7521, 7533, 7534, 7537, 7716, 7730, 7736, 7826, 7832, 7835, 7839, 7844, 7847, 7856, 7857, 7861, 7875, 7876 and 7877. According to the applicant, each of those decisions contained the implicit decision to invite, under the Walloon Government decree of 1 April 1999, only the carriers listed in the operating perimeter, without publishing a contract notice or a notice on the existence of a qualification system. In each case it sought suspension under extreme urgency and annulment. An order of 22 April 2022 joined the 34 cases and set them down for the hearing of 12 May 2022; letters of 6 May 2022 adjourned them sine die, after which an order of 24 October 2022 listed them for the hearing of 23 November 2022. In the meantime, on 28 April 2022, OTW had decided to renounce the award of the routes concerned and notified that decision the same day by registered letter to all bidders concerned. Since no one sought annulment of that renunciation within the prescribed time limit, the withdrawal of the contested decisions could be regarded as definitive. Applying article 30, § 5 of the coordinated laws, the Council of State found in a single judgment that both the annulment actions and the applications for suspension had become without object. What remained was the question of costs, and there the debate ran high. OTW asked to be charged only the costs of a single action: the 34 applications were identical save for the route number, lodged by the same lawyers, manifestly connected and therefore predictably to be joined, and because of the withdrawal not even a memorial had to be written. It spoke of procedural abuse, or at least of a wrong choice whose financial consequences it should not bear. Coach Partners Brabant replied that the court fee and the contribution are due per application, that joinder changes nothing, and that it was OTW that had launched 135 award procedures at once for routes belonging to a single transport network; it did accept that the procedural indemnities be reduced to the minimum amount. The Council of State sided with the applicant. The withdrawal of the contested acts is a form of disguised annulment, so that OTW counts as the party losing on the merits and Coach Partners Brabant as the prevailing party. The court fee and the contribution are due per application at the moment of lodging and no provision creates an exception in the event of joinder: the registry had rightly claimed 7,548 euros. Moreover, an applicant cannot be criticised for bringing 34 separate actions rather than one; as a rule an application may target only one act, and a joint application is admissible for all the acts targeted only exceptionally, so there was a risk that it would be admitted only for its first object. That the applicant declined to run that risk is understandable in the light of OTW’s choice to launch separate, parallel procedures instead of dividing a single contract into lots. On the procedural indemnity, the Council held that no provision requires joinder to lead to a single indemnity; the limited legal work does justify reducing the amount, not reducing it to one indemnity. Since the ministerial decree of 22 June 2022, in force on 9 July 2022, the minimum is 154 euros, and because the acts had been withdrawn no increase was due. OTW therefore bears the court fees of 6,800 euros, the contributions of 748 euros and 34 procedural indemnities of 154 euros, together 5,236 euros — 12,784 euros in all.
Why does this matter?
This judgment is only superficially about costs. It is really about who pays for a procedural architecture the authority itself chose. OTW split a single school transport network into 135 separate award procedures instead of one contract divided into lots. That choice has consequences: anyone challenging it must in principle lodge one application per decision, because a joint application risks being admissible only for its first object. The Council refuses to place that risk on the applicant. For bidders wishing to attack a series of parallel decisions this is an important reassurance: a multiplicity of actions is not abusive when it mirrors a multiplicity of decisions. The judgment also refines the case law on withdrawal. As in other cases, withdrawal counts as a disguised annulment making the authority the losing party — but here that principle is magnified across 34 files, with a bill of nearly thirteen thousand euros for proceedings in which not a single memorial was written. Note finally the nuance between the two types of cost. Court fees and contributions are legally due per application and leave the Council no room. The procedural indemnity does: limited legal work justifies reduction to the indexed minimum of 154 euros, but not the leap to a single indemnity for everything.
The lesson
If you see an authority split one contract into dozens of parallel procedures and you want to challenge them, lodge one application per decision. You cannot be blamed for driving up the costs: a single joint application is as a rule admissible only for its first object, and you need not run that risk. Claim in each application the court fee, the contribution and a procedural indemnity, and be prepared — as Coach Partners was here — to have the amount of that indemnity reduced to the minimum where the applications are near-identical; that flexibility cost the applicant nothing and strengthened its credibility. If the authority withdraws the contested decisions or renounces the award, your action loses its object but you win on costs, since withdrawal counts as a disguised annulment. As an authority, the bill is twofold: choosing to cut a network into dozens of separate contracts rather than lots multiplies not only your administration but also your litigation exposure. And renouncing the award does not make the dispute free.
Ask yourself
When challenging a series of connected decisions, do you know that a single joint application is as a rule admissible only for its first object, and have you documented that assessment? Do you claim in each application both the court fee and contribution and a procedural indemnity? Do you realise that withdrawing or renouncing the award leaves your action without object but earns you the costs? As an authority: have you factored in that splitting one network into dozens of separate award procedures multiplies your exposure to court fees and procedural indemnities proportionately — here to 12,784 euros without a single memorial being written?
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 →