Middelkerke withdraws the events contract: the whole extreme-urgency action loses its object — and here no costs are awarded
After the municipality of Middelkerke had awarded a framework agreement for sound, light and technical staff at events not to BV V. but to a third party, and the applicant had sought suspension under extreme urgency, the municipality withdrew the contested decision during the proceedings; the action thereby lost its object in its entirety — including the requested suspension of the implicit non-award decision — and the Council of State dismissed it, this time without any order as to costs.
What happened?
The municipality of Middelkerke organised a public contract to conclude a framework agreement for the rental of additional sound and light equipment and the provision of additional technical staff at events, choosing an open procedure under article 36 of the Law of 17 June 2016. By decision of 6 January 2026 the municipality decided not to award the contract to BV V.; the contract was awarded to a third party. On 5 March 2026 BV V. brought an action and sought suspension under extreme urgency of three decisions: the choice of the open procedure, the decision not to award to it, and the award to the third party. By orders of 5 and 20 March 2026 the procedural calendar was set in consultation with the designated member of the auditorate; the hearing took place on 22 April 2026, with chamber president Geert Debersaques reporting and first auditor Ines Martens giving an opinion concurring with the judgment. No substantive debate followed: the municipality withdrew the contested decision during the proceedings, after the extreme-urgency hearing had first been scheduled. Because of that withdrawal, the Council of State held, the action was without object in its entirety, including the requested suspension of the implicit decision not to award the contract to the applicant. The Council therefore dismissed the action. Unlike in two parallel cases of the same day, the operative part of this judgment contains no order as to costs: the Council did not rule on the roll fee, the contribution or a procedural indemnity.
Why does this matter?
This judgment belongs to a series of same-day rulings in which a contracting authority withdrew a contested decision and the extreme-urgency action thereby lost its object. It is instructive precisely because it diverges from its neighbours on one point: here no costs are awarded. In the parallel cases against Actiris and Fluvius the Council ordered the authority to pay the costs, including a procedural indemnity of 770 euros; in this case against Middelkerke the Council dismissed the action without ruling on costs. In practice this means that the cost consequence of a withdrawal does not automatically favour the applicant: the fact that the action loses its object does not, in itself, lead to an order for costs against the authority. On the merits, the judgment also shows that the extreme-urgency procedure is open not only against the express award to a competitor, but also against the implicit decision not to award to the applicant and even against the prior choice of the procurement procedure — though here all those objects fell away together through the withdrawal.
The lesson
For an unsuccessful bidder the message is twofold. First, extreme-urgency suspension remains effective: here too the action moved the authority to withdraw its decision before any ruling on the merits. Second, you must not assume that a withdrawal will earn you your costs. In this judgment the Council dismissed the action without any order as to costs, whereas in the parallel cases of the same day the authority was ordered to pay the costs and the procedural indemnity. Anyone who wants to recover costs and a procedural indemnity is therefore well advised to claim them expressly and in time, so that the Council can rule on them. For the authority, the judgment shows that withdrawal remains an effective way to remove a contested procurement or award decision and deprive the action of its object — and that, contrary to a common fear, this does not always come with an order for costs.
Ask yourself
As an unsuccessful bidder, did you challenge not only the award to the competitor but also the implicit decision not to award to you, in time, through the extreme-urgency procedure? And if the authority withdraws its decision: did you expressly claim your procedural indemnity and costs, aware that a loss of object does not automatically lead to an order for costs against the authority — as this judgment, ending without any costs ruling, illustrates? As an authority: do you know that withdrawing a contested decision can render the action without object in its entirety, and that an order for costs is not a matter of course?
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 →