The turnover requirement for the July 21st celebrations triples — but the authority forgets to explain why
The Council of State annuls the specifications for organizing the Belgian National Day festivities because the State tripled the financial capacity requirement — from €2M cumulative over three years to €2M per year for each of the last three years — without adequately justifying why this increase was proportionate to the contract.
What happened?
The Belgian State tendered the organization of July 21st National Day festivities. The selection criterion for economic capacity required €2M annual turnover for each of the last three years. For the previous edition, the requirement was €2M cumulative over three years — a threefold increase with comparable scope and budget. Shadow To Live challenged the specifications. In suspension proceedings (arrest 259.655), the Council found the increase unjustified. The State argued (1) its freedom to tighten criteria, and (2) the new contract covers three editions instead of one. Both were rejected: the freedom to tighten is not a justification in itself, and the administrative file showed the tightening was planned before the contract was expanded to three editions. A third justification ('clarification') was raised only at the hearing and was absent from the file. After the suspension, the State did not request continuation of proceedings within 30 days. The Council annulled via the accelerated procedure (art. 17, §6).
Why does this matter?
This ruling illustrates the proportionality principle for selection criteria. An authority may tighten requirements, but must concretely justify why the new threshold is proportionate. Tripling a turnover requirement without substantive justification — while scope and budget remain comparable — is disproportionate and artificially restricts competition.
The lesson
For contracting authorities: your freedom to tighten selection criteria is not self-justifying. Explain concretely why the new threshold is proportionate to the contract. Preserve the chronology of your decision-making in the administrative file — if it contradicts your justification, it will be exposed. For tenderers: compare selection criteria with previous similar contracts from the same authority. An unexplained tightening may indicate disproportionate restriction of competition.
Ask yourself
Have you tightened a selection criterion compared to a previous similar contract? Can you concretely explain — with elements from the administrative file — why the new threshold is proportionate? Or was the tightening decided before the substantive change that would justify it?
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 →