Beach bars in Knokke: not a services concession, but the municipality did have to scrutinise a bid of EUR 25.25/m² — award of nine lots suspended
K. BV, which has run a beach bar in the Knokke zone since 2013 and finished eleventh, obtains suspension of the award of nine lots: the Council of State accepts that this is a public domain concession rather than a services concession, but holds that Knokke-Heist did not carefully examine the exceptionally high concession fees of EUR 25.25 and EUR 15.20/m² and too readily deferred the identified conflicts with the provincial zoning plan to the permit stage.
What happened?
Knokke-Heist holds the concession for the beach and seafront on its territory; its new head concession with the Flemish Region runs from 2027 to 2035 and may be renewed once for nine years. For sub-concessions for beach bars (lot group 1) and children’s play areas (lot group 2) the municipality organised a market consultation procedure. On 6 February 2026 the board of mayor and aldermen appointed an evaluation committee of three external experts (finance, hospitality and quality) and an internal chair, and on 26 February 2026 it adopted the concession guidelines. Those guidelines expressly declared the Concessions Act of 17 June 2016 and public procurement law inapplicable. Proposals were scored on a financial offer (35 points: 20 for the concession fee using the rule of three and 15 for the financial plan), the core team (15 points) and the quality of operation and layout (50 points). The multi-year financial plan had to be validated by a registered company auditor or accountant. Nine lots were available in the Knokke zone for twelve candidates. K. BV, which has run a beach bar there since 2013, finished eleventh in the evaluation report of 26 August 2026 with 47.03/100 points, 3.73 points behind the ninth-placed candidate. The intervening party, L. BV (candidate 28), came first with 77.55 points and was awarded lot 9. The board approved the report on 28 August 2026; the extreme-urgency application followed on 10 September, one of seven against the same decision. K. BV’s main argument relied on Article 15 of the Law of 17 June 2013, which allows suspension without proof of urgency, claiming that the beach bar concessions are in reality services concessions: the municipality determines the product range, opening period, layout and even aesthetics, and sanctions non-compliance. State Councillor Patricia De Somere, acting President of the Xth Chamber, first noted that the municipality’s own label is not decisive, but nonetheless did not follow K. BV. For a services concession, the contract must mainly concern services meeting requirements set by the authority whose performance it can enforce. A beach bar is the concession holder’s own hospitality business: it is not obliged to operate and may even stop for a while. The operating conditions are ancillary conditions for use of the public domain, the sanctions cannot compel operation, and operating risk distinguishes a concession from a public contract, but not from a public domain concession. Nor does the clause in the head concession that sub-concessions are awarded ‘in accordance with the applicable provisions, including the Law of 17 June 2016’ mean more than ‘where applicable’. K. BV therefore had to prove urgency, and it did: with an accountant-calculated funding gap of almost EUR 300,000 a year, more than EUR 900,000 in continuing bank debt and a beach bar generating about 85% of its turnover, it showed with verifiable data that it could not absorb even a brief loss. On the merits, the Council found two pleas serious. First, the financial review. The intervening party and candidate 30 offered EUR 25.25 and EUR 15.20/m², while the other bids ranged from EUR 1.5 to 5/m²; through the rule of three, those outliers determined every candidate’s price score. Neither financial plan contained a projected balance sheet. The evaluation report therefore called them ‘incomplete’ — the committee regarded a plan as complete only with an income statement, cash-flow statement and projected balance sheet — yet still drew far-reaching positive conclusions about a ‘very solid financing structure’ and the feasibility of the fee (scores of 9.45/15 and 9/15). The Council considers this prima facie contradictory. Even for a public domain concession, the duty of care requires the grantor to examine thoroughly whether the concession fees offered are realistic, and the fact that operating risk lies with the concession holder does not change that. Validation by an ITAA-registered accountant was not enough. Second, the planning review. For (almost) all sketch designs, the committee noted objections regarding compliance with the provincial zoning plan ‘Beach and seafront’ — toilets not at the seafront, closed walls blocking the sea view, additional terraces or staff rooms, a 60 m² sales kiosk plus a separate toilet block — and recommended adjusting the final plans, but deferred the actual assessment to the environmental permit. The Council accepts that not every deviation must lead to irregularity and that the municipality may score deviations negatively. But the municipality had to explain whether the layout stays within the limits of a permissible deviation, all the more so because deviations that are ‘in principle not permitted’ did count under other criteria such as house style, comfort, vision and financial plan. The general statement that a deviation is ‘not regarded as a substantial irregularity’ was insufficient. The objection that the points gap could not be bridged failed: together, the two grievances could close the 3.73-point gap or even render proposals irregular. The award of the nine lots in the Knokke zone was suspended; the decision is materially severable, so the other zones fall outside this suspension. The first auditor-head of section Ann Eylenbosch delivered a concurring opinion.
Why does this matter?
This judgment matters for two reasons. First, the Council draws a clear line between a public domain concession and a services concession. The decisive criterion is not operating risk — both share it — but whether the authority ‘orders’ a service whose performance it can enforce. A beach bar operated by the concession holder on its own initiative and at its own risk, subject to conditions on the use of the beach, prima facie falls outside the Concessions Act. That has direct procedural consequences: without the Concessions Act there is no automatic suspension under Article 15 of the Law of 17 June 2013, so the applicant must prove urgency. Second, the Council makes clear that ‘outside the Concessions Act’ does not mean ‘beyond review’. The duty of care also requires a grantor of a public domain concession to scrutinise conspicuously high bids — not to protect the bidder, but because an unexamined outlier distorts everyone else’s score through the rule of three and may jeopardise proper performance. And a grantor that itself requires the assessed proposal to be carried out cannot defer planning problems wholesale to the permit stage while awarding points for design features that may never be permitted. For every local authority that allocates pitches, terraces, car parks or advertising sites through its own guidelines, this judgment is a practical checklist.
The lesson
For candidates: invoking the Concessions Act to escape the burden of proving urgency is a risky bet with classic public domain concessions — so always build your urgency case on hard figures backed by an accountant, as K. BV did. Look in the evaluation report for bids far above the rest and for how the committee assessed those bidders’ financial plans: internal contradictions (‘incomplete’ yet ‘very solid’) make a strong grievance. And a low ranking is no reason to give up: 3.73 points behind with two serious pleas, the ranking was ‘no longer settled’. For grantors: examine exceptional bids explicitly and explain why they are feasible, especially when the price sets other candidates’ scores via a rule of three; an accountant’s validation is no substitute for your own review. If you include planning compliance in the assessment, decide for each proposal whether a deviation is within the permissible margin or substantial, and do not let deviations that are ‘in principle not permitted’ earn points under other criteria. And if you treat a projected balance sheet as part of completeness, do not draw conclusions that cannot be drawn without it.
Ask yourself
As a candidate: does my extreme-urgency application in a public domain concession rest on concrete, quantified proof of urgency, regardless of whether the Concessions Act applies? Have I compared the bids of the top-ranked candidates and checked how the grantor examined the feasibility of outliers? Have I calculated how many points separate me from the last awarded place, and can my grievances together close that gap? As a grantor: have I thoroughly examined conspicuously high concession fees and set out that analysis in the evaluation report? Are the conclusions in my evaluation report consistent with the findings (for example, an incomplete plan nonetheless described as ‘very solid’)? For each proposal with planning issues, have I decided whether the deviation is permissible, rather than deferring everything to the permit stage?
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 →