Suspension application rejected as inadmissible after withdrawal of award decision by Bruxelles-Propreté: retroactive withdrawal for illegality removes prejudice – applicant considered successful party for costs
The Council of State rejected the application for suspension under extreme urgency by GENETEC SA against Bruxelles-Propreté as inadmissible, after Bruxelles-Propreté retroactively withdrew the award decision of 26 August 2025 on 10 October 2025 on account of an illegality raised in the suspension application, so that GENETEC was no longer harmed or at risk of being harmed within the meaning of article 14 of the Act of 17 June 2013 — but GENETEC was considered the successful party and Bruxelles-Propreté was ordered to bear the costs.
What happened?
GENETEC SA filed an application for suspension under extreme urgency on 3 October 2025 against two decisions by Bruxelles-Propreté (Regional Agency for Cleanliness): the award decision of 26 August 2025 and the non-attribution decision of 19 September 2025, both notified on 22 September 2025. Before the hearing, Bruxelles-Propreté informed the Council on 13 October 2025 that on 10 October 2025 it had implicitly withdrawn the contested decision and renounced the award of the disputed contract, on account of an illegality raised in the suspension application. The Council analysed the admissibility conditions. Article 14 of the Act of 17 June 2013 requires the applicant to have been or risk being harmed by the alleged violation. The contested decision had been retroactively withdrawn. This withdrawal operated retroactively to the date of the contested decision. Even assuming the alleged violations were proven, they had neither harmed nor risked harming GENETEC. Since one of the two admissibility conditions under article 14 was not met, the application was declared inadmissible. The confidentiality of GENETEC's tender was maintained. Despite rejection, GENETEC was considered the successful party given the withdrawal; Bruxelles-Propreté was ordered to bear costs of €200 court fee, €26 contribution, and €770 procedural indemnity.
Why does this matter?
This ruling refines the case law on the consequences of withdrawing an award decision on pending extreme urgency applications. The Council specifies the legal mechanism: retroactive withdrawal by the contracting authority on account of an illegality raised in the application removes the prejudice suffered or risked by the applicant, so the admissibility condition under article 14 of the 2013 Act is no longer met. The ruling also confirms that despite rejection, the applicant is considered the successful party when the withdrawal was prompted by the illegality raised — the respondent bears the costs.
The lesson
As a contracting authority, when you recognise an illegality in your award decision after a suspension application, retroactive withdrawal can render the application inadmissible — but you bear the costs. This is often preferable to a suspension order. As a tenderer, even when the authority withdraws before the hearing and your application is rejected, you are considered the successful party and recover costs. Remember to request confidentiality of your tender when filing it as evidence.
Ask yourself
As a tenderer: has the contested decision been withdrawn? If so, your application will likely be declared inadmissible, but you can recover costs. Check whether the withdrawal is effectively retroactive and whether a new decision has been taken that is itself challengeable. As a contracting authority: considering withdrawal? Be aware you will be considered the unsuccessful party and bear the costs.
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 →