The battle over the NMBS AM30 trains ends in a discontinuance: after the rejected suspension, the applicants drop their annulment action and bear the costs
After their suspension application had already been rejected, S. (GmbH) and S. (NV) discontinued their annulment action against the decision of the NMBS board of directors of 23 July 2025 designating a preferred bidder for the AM30 trains; the Council of State recorded that discontinuance and ordered the applicants, each for half, to pay the costs — a roll fee of 400 euros, a contribution of 26 euros and a procedural indemnity of 770 euros for the NMBS.
What happened?
On 23 July 2025 the board of directors of the NMBS designated a preferred bidder with a view to awarding the contract for the AM30 trains. Against that reasoned decision, S. (GmbH) and S. (NV) brought an annulment action on 22 September 2025, in so far as the decision (i) designated the first intervening party as preferred bidder, (ii) placed the applicants and the second intervening party in the waiting room, and (iii) granted approval to negotiate the contractual documents with the preferred bidder. By judgment no. 264.231 of 19 September 2025 the Council of State had already rejected the application to suspend the execution of that same decision; at the same time it admitted the interventions of C. (SA) and A. (NV) and rejected the other applications to intervene. In the annulment phase the defending party and the two intervening parties exchanged pleadings. By letter of 15 January 2026, however, the applicants informed the Council that they discontinued the proceedings. The Council recorded that discontinuance and ordered S. (GmbH) and S. (NV), each for half, to pay the costs of the annulment action: a roll fee of 400 euros, a contribution of 26 euros and a procedural indemnity of 770 euros, owed to the NMBS. The case was dealt with without a public hearing and taken under advisement on 22 April 2026.
Why does this matter?
Designating a preferred bidder and placing the other candidates in the waiting room are typical intermediate steps in a complex, negotiated contract such as the purchase of rolling stock. The judgment shows how such a challenge often ends in practice: not with a ruling on the merits, but with a procedural closure. The applicants had already lost the first, fast round — the suspension — by judgment no. 264.231; when they then did not pursue the annulment action and discontinued, the Council recorded the discontinuance without examining the substance. The costs ruling is the final piece: a party that discontinues is the losing party and bears the costs. The practical value lies in timing and stakes: a rejected suspension is not a formal ruling on legality, but it weighs heavily on the chances of success and on the decision whether to press on. The judgment also recalls that a discontinuance does not remove the costs — the procedural indemnity and the roll fees remain due, here split between the two applicants.
The lesson
If, after a rejected suspension, you are weighing whether to pursue your annulment action, weigh not only your chances on the merits but also the cost of a discontinuance. If you discontinue, the Council records it without ruling on your pleas, and you are ordered, as the losing party, to pay the costs — here a roll fee of 400 euros, a contribution of 26 euros and a procedural indemnity of 770 euros, split equally between two applicants. A discontinuance is thus a legitimate exit, but not a cost-free one. If you are the authority or the benefiting preferred bidder, this judgment shows that a solid win at the suspension stage often makes the opponent drop out at the annulment stage, with a costs order to follow. Timely, well-founded defence in the extreme-urgency round therefore pays off all the way to the close of the case.
Ask yourself
After a rejected suspension, have you realistically assessed whether the annulment action still stands a chance before deciding whether to pursue it? Do you know that discontinuing the proceedings leads the Council to record it without ruling on your pleas? Do you account for the fact that a discontinuance has you ordered, as the losing party, to pay the costs, including the procedural indemnity? With several applicants: do you know that the Council can split the costs between them, here each for half?
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 →