Application rejected for lack of jurisdiction: university hospital established by private initiative is not an administrative authority within the meaning of article 14, §1 coordinated laws – status as contracting authority is insufficient
The Council of State rejected under extreme urgency the application by PEO BV against CHU Dinant-Godinne-Sainte-Élisabeth-UCL Namur for lack of jurisdiction, because the CHU — established by private initiative and managed by private-law persons — is not an administrative authority within the meaning of article 14, §1 of the coordinated laws on the Council of State, and the status of contracting authority under the Act of 17 June 2013 does not automatically entail that of administrative authority.
What happened?
PEO BV filed an application for suspension under extreme urgency against CHU Dinant-Godinne-Sainte-Élisabeth-UCL Namur concerning the technical specifications of tender file PO-18, which PEO BV claimed were linked to a specific product or brand and restricted competition. PEO BV requested suspension of the specifications and an order to publish an addendum with neutral performance criteria. PEO BV also filed an annulment action against the discriminatory technical clauses, including the 'zero points mechanism' for non-identical systems. The CHU raised a plea of lack of jurisdiction ratione personae, arguing it is not an administrative authority within the meaning of article 14, §1 of the coordinated laws on the Council of State. Under article 24 of the Act of 17 June 2013, the Council of State only has jurisdiction when the contracting authority is also an administrative authority under article 14, §1. PEO BV offered no rebuttal at the hearing. The Council held that the status of contracting authority under the 2013 Act does not necessarily and immediately entail the qualification of administrative authority under article 14, §1. The CHU was established by private initiative and managed by private-law persons, with no apparent power to take unilateral binding decisions vis-à-vis third parties. The Council therefore lacked jurisdiction and rejected the applications.
Why does this matter?
This ruling reaffirms a fundamental jurisdictional principle: the Council of State only has jurisdiction under article 24 of the Act of 17 June 2013 when the contracting authority is also an administrative authority under article 14, §1 of the coordinated laws. Being a 'contracting authority' under procurement law does not automatically confer the status of 'administrative authority'. For entities established by private initiative, managed by private-law persons, and lacking the power to take unilateral binding decisions — such as certain private hospitals — tenderers must turn to the civil courts.
The lesson
As a tenderer, before filing an application with the Council of State, verify whether the contracting authority is also an administrative authority under article 14, §1 of the coordinated laws. For private hospitals, non-profit organisations, and other private-law entities acting as contracting authorities, the Council of State may lack jurisdiction and you must turn to the civil courts under article 24 of the Act of 17 June 2013. PEO BV's silence at the hearing on the jurisdictional plea illustrates the importance of thorough preliminary analysis of the jurisdiction question.
Ask yourself
As a tenderer considering legal action: is the contracting authority a public-law entity with the power to take unilateral binding decisions (administrative authority), or a private-law entity that acts as contracting authority but is not an administrative authority? Have you verified whether the Council of State has jurisdiction under article 24 of the Act of 17 June 2013, or should you turn to the civil courts?
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 →