Council of State rejects annulment appeal against award of tennis and padel court concession in Lembeke due to lack of interest after termination and new procedure
The Council of State rejected the annulment appeal against the award of the concession for the operation and investment in the tennis and padel zone at the Lembeke sports centre to BV Padelworld, because the concession agreement had been unilaterally terminated by the concessionaire, a settlement had been reached, a new concession procedure with the same object had been launched, and the applicants had applied for the new procedure — leaving them without interest in the annulment of the original award decision.
What happened?
On 25 March 2021, the municipal council of Kaprijke approved the concession conditions for the operation and investment in tennis and padel courts at the Lembeke sports centre. The concession covered 3,382.27 m² with four zones. Eight candidates submitted initial offers, including the applicants' team and BV Padelworld. After a second phase with a draft concession agreement and a 'best and final offer' (BAFO) round, three BAFOs were submitted. On 15 November 2021, the college of mayor and aldermen awarded the concession to Padelworld. The applicants' offer ranked third. On 23 February 2022, the concession agreement was signed. The applicants filed an annulment appeal on 23 December 2021. In June 2023, Padelworld unilaterally terminated the concession. On 28 September 2023, the municipal council approved a settlement with Padelworld. On 16 November 2023, the council approved specifications for a new concession with the same object. The applicants applied for the new procedure. The Council held that while a moral interest in annulment generally suffices — even after conclusion and termination of the concession agreement — the applicants' disadvantage had factually disappeared. Through the new procedure, they had a new opportunity to obtain the concession. The appeal was declared inadmissible for lack of interest. Costs were charged to the applicants, but the respondent was not considered the successful party given the termination and new procedure.
Why does this matter?
This ruling clarifies the interest requirement for annulment appeals against concession award decisions when the concession has been terminated and a new procedure launched. In principle, a moral interest in annulment survives conclusion and termination of the concession agreement. But when a new procedure with the same object is launched and the applicant participates, the disadvantage disappears: the applicant gets a new chance at the concession and can file a new appeal if unsuccessful.
The lesson
When a concession agreement is terminated and the contracting authority launches a new procedure with the same object, an applicant participating in the new procedure loses interest in the annulment appeal against the original award. The new procedure offers a fresh opportunity. Moral interest alone does not suffice when the concrete disadvantage has factually disappeared.
Ask yourself
As an applicant: have I considered that participating in a new procedure with the same object may undermine my interest in the pending annulment appeal? And can I concretely explain at the hearing what interest I still have? As a contracting authority: could launching a new procedure render a pending annulment appeal inadmissible for lack of interest?
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 →