Church fabric withdraws the restoration-works award: waiving costs does not save it from the roll fee and the contribution
When the Sint-Lambertus church fabric in Neeroeteren, shortly before the hearing on an extreme-urgency suspension action, withdrew its award of the church-restoration works, the unsuccessful bidder’s action became entirely without object; the bidder waived its costs at the hearing, but the Council of State makes clear that one may waive one’s procedural indemnity, not the roll fee and the contribution — taxes that in any event remain payable by the losing church fabric.
What happened?
The Sint-Lambertus church fabric in Neeroeteren, acting as contracting authority, awarded the public works contract ‘Restoration works on St Lambertus church, Phase 1: exterior restoration works’ to a third party and did not award it to NV V., an unsuccessful bidder. The latter brought, on 27 March 2026, an action for suspension under extreme urgency of the award decision and of the implicit decision not to award the contract to it. After the hearing was first set for 22 April 2026, the church fabric withdrew the contested award on 8 April 2026. Through that withdrawal the action became entirely without object, including as regards the requested suspension of the implicit non-award decision. The dispute thereby shifted to the costs. At the hearing, counsel for NV V. waived the costs, including the procedural indemnity. The Council then distinguished two kinds of costs. The procedural indemnity is a fixed contribution to the costs and fees of the prevailing party’s lawyer (article 30/1, § 1, of the coordinated laws), which must be claimed by the party concerned in a procedural document or a settlement note (article 84/1 of the general procedural rules); a party may therefore waive it. Because of that waiver, the request for a procedural indemnity made earlier in the application no longer had an object, so the Council did not have to rule on it. For the other costs it was different. The roll fee (article 70, § 1, 2°, of the general procedural rules) and the contribution to the Fund for second-line legal aid (article 66, 6°, and article 4, § 4, of the law of 19 March 2017) are taxes within the meaning of article 170 of the Constitution, as the Constitutional Court confirmed in its judgments no. 124/2006 and no. 22/2020. Under article 68, third and fifth paragraphs, of the general procedural rules, the Council assesses the costs and places ‘in any event the whole of the costs on the party that loses on the merits’. No party may derogate from that rule or prevent the Council from ruling on it. The Council therefore formally ‘rejected’ the action and ordered the church fabric — which, through the withdrawal, was the losing party — to pay the roll fee of 200 euros and the contribution of 26 euros.
Why does this matter?
This judgment belongs to a series of cases in which a contracting authority withdraws a contested award and the action thereby becomes without object, but it adds a sharp and often misunderstood distinction. Not all ‘costs’ in a Council of State procedure are of the same nature. The procedural indemnity is a compensation between parties: it must be claimed and a party may freely waive it. The roll fee and the contribution to the legal-aid fund, by contrast, are not compensations between parties but taxes; the parties have no say over them. Who owes them is determined by law: the party that loses on the merits, and in the case of a withdrawal that is the withdrawing authority. An unsuccessful bidder who, out of courtesy or strategy, waives ‘the costs’ may thus give away its own procedural indemnity, but cannot thereby exonerate the authority from the roll fee and the contribution — and the Council must in any event place these on the losing party. The judgment also confirms the broader line: withdrawing an award makes the authority the losing party. And it is a reminder that a church fabric, too, is a contracting authority subject to procurement law and its litigation.
The lesson
Distinguish between the procedural indemnity and the court costs in the strict sense. You may waive your procedural indemnity, and if you do so at the hearing, the Council no longer rules on it. But the roll fee and the contribution to the Fund for second-line legal aid are taxes: no party has any say over them, and the Council places them in any case on whoever loses on the merits. If the authority withdraws the contested award, it is that losing party. As an unsuccessful bidder who in effect wins because the award falls, weigh whether you really want to give away your procedural indemnity — your waiver does not free the authority from the roll fee and the contribution, but it does free it from a compensation that was meant for you. As a contracting authority — which may also be a church fabric — realise that withdrawing a contested award makes you the losing party and costs you at least the roll fee and the contribution.
Ask yourself
Do you know that in a Council of State procedure you may waive your procedural indemnity, but not the roll fee and the contribution, because these are taxes over which the parties have no say? Do you realise that the Council places the roll fee and the contribution in any event on the party that loses on the merits — in the case of a withdrawal, the withdrawing authority? As an unsuccessful bidder considering a waiver of ‘the costs’, do you keep in mind that you thereby give away only your own procedural indemnity and do not exonerate the authority? And as a contracting authority, including a church fabric: do you know that withdrawing a contested award makes you the losing party, with at least the roll fee and the contribution as a result?
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 →