Council of State reopens debates and refers the case to ordinary procedure to examine the compensatory indemnity claim following withdrawal of the award decision
The Council of State reopens the debates and refers CWS Workwear's annulment appeal against the City of Charleroi's workwear rental award decision to ordinary procedure, in order to examine the applicant's interest in a finding of illegality of the withdrawn act and to rule on the compensatory indemnity claim of EUR 27,484.80 under Article 11bis of the Coordinated Laws on the Council of State.
What happened?
On 21 February 2023, the City of Charleroi's municipal executive awarded a public service contract for the rental and maintenance of workwear to SA Depairon. SA CWS Workwear Belgie, the unsuccessful tenderer, filed an annulment appeal on 2 May 2023 and obtained, by ruling no. 256,336 of 24 April 2023, suspension of the award decision under extreme urgency. Following this suspension ruling, the municipal executive withdrew the award decision on 13 June 2023. This withdrawal was notified to tenderers on 30 June 2023 with mention of available remedies, and became final. The reporting auditor, acting under Article 93 of the procedural rules (summary debates), proposed finding that the appeal had lost its purpose and that there was no longer any need to adjudicate. However, in its reply brief, CWS Workwear argued it retained an interest in having the illegality of the withdrawn act established, in support of a compensatory indemnity claim under Article 11bis of the Coordinated Laws on the Council of State. On 11 January 2024, CWS Workwear filed a compensatory indemnity claim for EUR 27,484.80 plus interest, seeking compensation for damage suffered as a result of the illegality of the withdrawn award decision. At the hearing, the reporting auditor requested, in light of this claim, that the debates be reopened and the case referred to ordinary procedure. The Council of State followed this advice: the report proposing to close the case in summary debates could not be maintained. It was necessary not only to rule on loss of purpose but also to examine the applicant's interest in a finding of illegality and, if such interest exists, to rule on the legality of the withdrawn act. The debates were reopened and the case referred to ordinary procedure. The respondent was granted a new sixty-day period to file a response brief.
Why does this matter?
This ruling illustrates the compensatory indemnity mechanism (Article 11bis of the Coordinated Laws) in the context of withdrawal of the award decision: even when the contested act is withdrawn and the annulment appeal loses its purpose, the applicant may retain an interest in having the illegality established if it has filed or intends to file a compensatory indemnity claim. The Council of State cannot then close the case in summary debates but must reopen them to examine both the question of interest and the legality of the withdrawn act.
The lesson
Withdrawal of an award decision does not necessarily end proceedings before the Council of State. The unsuccessful tenderer may preserve its interest by filing a compensatory indemnity claim under Article 11bis of the Coordinated Laws. In that case, the Council of State must examine the legality of the withdrawn act in order to rule on the indemnity. For the contracting authority, withdrawal is therefore not a means of escaping all judicial review: the illegality may be established and give rise to a compensatory indemnity award.
Ask yourself
As a contracting authority considering withdrawing an award decision after a suspension ruling: am I aware that withdrawal does not necessarily end the Council of State's examination, and that a compensatory indemnity claim may still be filed? Have I assessed the financial consequences of a possible finding of illegality? As an unsuccessful tenderer whose contested act is withdrawn: have I considered preserving my interest by filing a compensatory indemnity claim before the proceedings close? Have I quantified the damage suffered?
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 →