Annulment of ministerial refusal to sell municipal forest estate due to motivation by reference to non-appended opinion
The Council of State annuls the ministerial decree refusing the municipality of Aubange authorisation to sell the Domaine des Croisettes (136 ha of forest) by public auction, because the minister motivated the decision solely by reference to an opinion from the Department of Nature and Forests that was neither incorporated into nor appended to the decree and of which the parties had no knowledge.
What happened?
The municipality of Aubange sought to sell by public auction the Domaine des Croisettes — a 136-hectare forest estate on the territory of Chiny, acquired in 1941 — for a minimum of €3.5 million. The sale was motivated by funding needs for urban renewal, social housing and a swimming pool project, and by the difficulty of managing a forest far from the municipality. Under the Walloon Forestry Code, ministerial authorisation was required to withdraw the estate from the forestry regime. Following a public inquiry by the city of Chiny (797 objections, predominantly against the sale) and a negative opinion from the Department of Nature and Forests, the Walloon minister refused authorisation on 31 October 2018. Two potential buyers (R.R. and B.D., owners of an adjacent estate who had repeatedly bid) and the Groupement Forestier Les Croisettes d'Ardennes et de Gaume challenged this refusal. The Council first examined admissibility. The two potential buyers had standing as owners of adjacent land and repeated bidders with a sufficiently direct, personal and current interest. The forestry grouping was declared inadmissible: it could not demonstrate how annulment would provide a concrete advantage — it had no pre-emption right, no property connection, and merely pursuing good forest management was insufficient as personal interest. On the merits, the Council examined the plea based on breach of the formal duty to state reasons. The ministerial decree merely stated 'having regard to the unfavourable opinion issued by the Department of Nature and Forests' and 'considering that there is reason not to authorise the municipality'. The Council found that motivation by reference to an opinion is only permissible if the opinion is actually incorporated into or appended to the decision, so the party concerned can learn the reasons by reading the decision itself. Here, the Department's opinion was neither incorporated into nor appended to the decree. The Walloon Region argued the municipality knew the opinion, but the Council held this irrelevant: the formal duty requires the reasons to be readable in the decision itself, not that the addressee might know them through other channels. The plea was well-founded and the refusal was annulled.
Why does this matter?
This ruling reaffirms a fundamental principle of the formal duty to state reasons: an administrative decision may not be motivated solely by reference to an external opinion that is neither incorporated into nor appended to the decision itself. It is not sufficient that the addressee knows the opinion through other channels — the reasoning must be readable in the decision itself, both for the parties and for judicial review. This applies equally to refusal decisions.
The lesson
Only motivate by reference to an opinion if that opinion is actually incorporated into or appended to the decision. A mere mention 'having regard to the unfavourable opinion of…' without making that opinion accessible constitutes a breach of the Act of 29 July 1991. This applies to negative decisions as well: a refusal requires the same standard of reasoning as a grant.
Ask yourself
If I motivate my decision by reference to an opinion, is that opinion actually incorporated into or appended to my decision? Or am I assuming the party concerned will find it through other channels? Does the motivation in my decision suffice on its own to understand the decision without consulting external documents?
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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 →