Emphyteusis padel courts Asphaltcosite Asse: annulment – policy objectives as assessment elements insufficiently clear in specifications, creating near-unlimited discretion
The Council of State annuls the Asse municipal council's decision to grant an emphyteusis for padel courts, because the award criterion 'socially responsible operation' (50 points) referred to 'policy objectives' on a website containing a 191-page multi-year plan with dozens of objectives, from which the authority selected assessment elements for the first time in the evaluation report — elements not identifiable as such on the website — granting the authority near-unlimited discretion and providing insufficient safeguards against arbitrary and discriminatory assessment.
What happened?
The municipality of Asse decided to grant an emphyteusis for padel courts on the Asphaltcosite via an open bidding procedure. The specifications — which explicitly stated that public procurement legislation did not apply — provided three award criteria: offered lease payment (10 points), vision (40 points), and socially responsible operation (50 points). For the third criterion, the specifications referred to the municipality's 'policy objectives and priorities' on its website. Eighteen candidates submitted offers; five were found irregular. S.A. and partners scored 84.86/100 and Swaldo came second with 84.58/100 — a difference of only 0.28 points. The decisive gap was on the third criterion: S.A. scored 50/50 versus Swaldo's 40/50. After gubernatorial intervention regarding the competent body, the municipal council took its own decision on 21 June 2021. Swaldo filed annulment proceedings. The Council rejected the first plea regarding variants and options: the specifications gave broad freedom to formulate a 'vision', and the 'unconditional' bidding procedure referred to the procedure itself (open to all), not to the content of the offers. The 'no variants/options' indication on e-Notification resulted from the authority not checking the box (automatically displaying 'no'), while the entire variants/options framework from procurement law was inapplicable. No discriminatory advantage was established. The second plea succeeded on its first branch: the assessment elements for 'policy objectives' in the evaluation were not sufficiently identifiable from the specifications. The website referenced a 191-page multi-year plan with dozens of policy objectives in no apparent logical order. None of the seventeen assessment elements used in the evaluation report (except local economy) were identifiable as such in the referenced documents. This created near-unlimited discretion and provided insufficient safeguards against arbitrary assessment. Given the minimal point difference (0.28), this sufficed to conclude the entire procedure lacked adequate safeguards. Annulment ordered. Costs: court fee €800, contribution €80, legal costs €1,540.
Why does this matter?
This ruling clarifies that transparency and equality principles apply to the granting of real rights (emphyteusis) outside public procurement law. A reference in the specifications to 'policy objectives' on a website containing a 191-page multi-year plan, without specifying which objectives are relevant for assessment, provides insufficient safeguards against arbitrariness. The ruling also confirms that moral interest suffices for annulment proceedings even after the emphyteusis deed has been executed.
The lesson
As a municipality granting an emphyteusis: formulate assessment elements clearly — a reference to a voluminous multi-year plan does not suffice. Specify which objectives are relevant. If you ask for a 'vision' on a 50-year lease, be aware that tenderers have room to propose alternatives. As a tenderer: unforeseen assessment elements are a strong ground for annulment, especially with a minimal score difference.
Ask yourself
As granting authority: are my assessment elements foreseeable from the specifications? Am I not referring to an overly broad source without concretizing? As a tenderer: could I foresee the assessment elements from the specifications and referenced sources?
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 →