A letter withdrawing your case is not enough: fail to appear at the hearing and your extreme-urgency application is dismissed — with the roll fee to pay
Sotrelco sought the suspension, under extreme urgency, of the award to ENTRA of the energy renovation of five buildings on the Monceau-Fontaines site, wrote a week later to say it wished to discontinue, and then did not appear at the hearing; because article 11 of the royal decree of 19 November 2024 requires all parties to be present or represented at the hearing, the Council of State dismissed the application and left Sotrelco with the 200-euro roll fee and the 26-euro contribution, even though the other party had waived its procedural indemnity.
What happened?
The non-profit association Monceau-Fontaines tendered a public works contract for the energy renovation of five buildings on its site in Monceau-sur-Sambre. By a decision taken and notified on 8 July 2026 it awarded the contract to the non-profit association ENTRA – Entraide par le Travail, and therefore not to Sotrelco, whose tender came to 2,275,527.08 euros excluding VAT. On 16 July 2026 Sotrelco lodged an application for suspension of that decision under extreme urgency. By order of 22 July 2026 the procedural calendar was fixed and the case set down for the hearing of 6 August 2026; the contribution and the roll fee under articles 66, 6°, and 70 of the Regent’s decree of 23 August 1948 were paid. Then things turned. By letter of 23 July 2026 Sotrelco informed the Council of State that it wished to discontinue its action. By letter of 30 July 2026 the defending party in turn indicated that it waived the procedural indemnity. At the hearing of 6 August 2026 Sotrelco was neither present nor represented; counsel Guillaume Ergo appeared for Monceau-Fontaines. The Council then applied article 11 of the royal decree of 19 November 2024 governing interim-relief proceedings. Its second and third paragraphs provide that all parties must be present or represented at the hearing, and that the application for suspension, a penalty payment or interim measures is dismissed where the applicant is not. The Council therefore dismissed the application without examining any plea. As to Sotrelco’s request that its tender, document 2 of the annexes to the application, be treated as confidential, it held that there was no longer any need to rule, since the judgment brought the proceedings before the Council to an end. Finally, Sotrelco bore the costs, namely the 200-euro roll fee and the 26-euro contribution.
Why does this matter?
The judgment is short, but it exposes a trap that can prove costly. A party wishing to stop its extreme-urgency application easily assumes a letter to the registry will do: the matter is settled, the authority and the applicant have come to terms, why still travel to Brussels? The royal decree of 19 November 2024 leaves no such route. It expressly requires all parties to be present or represented at the hearing, and it attaches an automatic consequence to the applicant’s absence: the application is dismissed. In law that is something other than a discontinuance. A dismissal is a decision against the applicant, with the corresponding consequences for costs, whereas a properly handled discontinuance would have given it a say in the costs ruling. The judgment also shows the limits of the other party’s goodwill. Monceau-Fontaines expressly waived its procedural indemnity — the amount the parties can dispose of. But the roll fee and the contribution are not an indemnity between parties; they are levies that remain on the losing party, and the other side cannot waive them. Sotrelco thus paid 226 euros for a case in which no plea was examined. Finally, a detail that matters in practice: the request to keep its own tender confidential lapsed with the proceedings. Anyone wanting to shield their price structure must reckon with the possibility that the file is closed after a dismissal without any ruling on confidentiality.
The lesson
If you want to withdraw your application for suspension under extreme urgency, still appear at the hearing or have yourself represented, even if you have already written to say you are discontinuing. Article 11 of the royal decree of 19 November 2024 turns your absence into a dismissal, and that is not a neutral outcome. Preferably agree with the other party beforehand who bears which costs, and record it in writing — but be aware that its waiver of the procedural indemnity does not relieve you of the roll fee and the contribution, which remain on you as levies. Calibrate your expectations on confidentiality too: once the proceedings end, the request to keep your tender confidential may lapse. If you are the contracting authority and your opponent steps back, have yourself represented all the same: your presence is required, and it allows you, if you wish, expressly to waive the procedural indemnity without weakening your own position.
Ask yourself
Do you know that in an extreme-urgency procedure you must be present or represented at the hearing, even where you have already discontinued in writing? Do you realise that your absence leads to a dismissal of your application and not to a recorded discontinuance? Have you agreed with the other party who bears the costs, and do you know that its waiver of the procedural indemnity does not remove the 200-euro roll fee and the 26-euro contribution? Have you allowed for the fact that your request to keep the tender confidential lapses as soon as the judgment ends the proceedings? And as a defending party: do you have yourself represented, even where the applicant has said it is giving up?
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 →