Walloon Brabant withdraws the award of its bailiff pool before the hearing: not ‘without object’ but inadmissible — and the province still pays 996 euros
Five days before the hearing, the Province of Walloon Brabant withdrew the award of its joint framework agreement for a pool of judicial officers; because that withdrawal operates retroactively, Modero Brabant wallon was no longer harmed by the alleged infringements and its extreme-urgency application was declared inadmissible — after which the province, as the party disguisedly annulled, still had to bear the roll fee, the contribution and a procedural indemnity of 770 euros.
What happened?
The Province of Walloon Brabant, together with the Walloon Brabant emergency services zone and the Walloon Brabant social housing agency, awarded a joint public contract in the form of a framework agreement for the designation of a pool of judicial officers (huissiers de justice). By a decision of 16 July 2026 it approved the designation of three bidders for the seven lots concerned: the temporary association ‘Alexandre Marlène, Avaux Thierry, Vleugels Jean’, the Hagelstein practice and Brawalaw SRL. The decision was communicated by email on 17 July 2026. On 31 July 2026 Modero Brabant wallon applied for suspension under extreme urgency. By order of 4 August 2026 the procedural calendar was set and the case listed for the hearing of 24 August 2026. On 14 August 2026 Étude Hagelstein applied to intervene. The Council admitted it: the contested act designates it as one of the three successful bidders, without it being in a temporary association with the other two, so that as an addressee of the act it has an interest in the application being dismissed. Meanwhile the province reconsidered. By email of 13 August 2026 it informed the Council of State that the contested act would probably be withdrawn before the hearing of 24 August. By a decision of 20 August 2026 the act was indeed withdrawn — four days before the hearing. The auditor invited the applicant to state its position on whether, given that withdrawal, the application still met the conditions of article 15, which refers to article 14, of the Law of 17 June 2013. At the hearing of 24 August 2026 Modero referred to the Council’s recent case law on the point and confirmed that the withdrawal had deprived it of its interest in the suspension application. The Council followed that reasoning and spelled it out. Article 14 of the Law of 17 June 2013 opens the remedy to ‘any person having or having had an interest in obtaining a particular contract and having been or risking being harmed by the alleged infringement’. Those are two conditions, not one. The withdrawal of 20 August 2026 operates retroactively to the date on which the contested decision was adopted. It follows that the alleged infringements — even assuming them proven — neither harmed the applicant nor risked harming it. As one of the two admissibility conditions of article 14 was not met, the application had to be declared inadmissible. On confidentiality, the Council held that document 3 from Modero’s file and document 6 from the intervener’s file, for which both had made reasoned and uncontested requests, remain confidential at this stage of the proceedings. On costs it followed the settled line. The disappearance of the contested act through withdrawal is a form of disguised annulment — a ‘succédané d’une annulation contentieuse’ — so that the defending party counts as the losing party and the applicant as the prevailing party within the meaning of article 30/1 of the coordinated laws on the Council of State. The Province of Walloon Brabant therefore bears the costs: the roll fee of 200 euros, the contribution of 26 euros and the procedural indemnity of 770 euros claimed, together 996 euros. The intervening party bears its own costs, assessed at 150 euros. The judgment was delivered on 25 August 2026 by the VIth vacation chamber sitting in interim relief, composed of Councillor of State Raphaël Born as acting president, assisted by registrar Adeline Schyns; auditor Philippe Nicodème had given a concurring opinion.
Why does this matter?
This judgment is most interesting for what it does not say. In the familiar line of cases on withdrawn awards, the Council usually finds that the action has lost its object and that there is no longer any need to rule. Here it takes a different route: the application is declared inadmissible. The reasoning runs through article 14 of the Law of 17 June 2013, which lays down two conditions — an interest in obtaining the contract, and being harmed or at risk of being harmed by the alleged infringement. Because a withdrawal operates retroactively to the date of the contested decision, the second condition disappears: retroactively, there is nothing left to be harmed by. That is a doctrinally cleaner construction than loss of object, and the applicant itself accepted it at the hearing, citing the recent case law. In practice this changes little about the outcome, and that is precisely the reassurance. ‘Inadmissible’ sounds like losing, but the costs ruling follows economic reality: the act has gone because the authority itself withdrew it, and that counts as a disguised annulment. The province bears the roll fee, the contribution and the procedural indemnity; the intervening beneficiary bears only its own 150-euro intervention fee. A party that fails to claim its procedural indemnity in such a case leaves money on the table. The judgment also shows what an authority gains from speed. Walloon Brabant announced the withdrawal on 13 August and carried it out on 20 August, four days before the hearing. That confined the case to a question of admissibility and a costs ruling, with no assessment whatsoever of the award on the merits. An authority that reaches the same conclusion but leaves the execution too late does get a ruling on the merits — and the corresponding finding of its error on the file. Finally, a point for joint contracts with several beneficiaries: Étude Hagelstein was allowed to intervene as one of the three designated bidders, without being in a temporary association with the other two. Anyone competing in a contract where several parties are designated therefore has an independent interest in defending their position — and bears their own intervention fee for it.
The lesson
If the award you are challenging is withdrawn before the hearing, do not let the case quietly expire. Your application will be declared inadmissible, but that does not make you the losing party: the withdrawal counts as a disguised annulment, so the authority bears the costs. Claim your procedural indemnity expressly — here 770 euros, on top of the 200-euro roll fee and the 26-euro contribution. Feel free to acknowledge at the hearing that you have lost your interest; that is what the applicant did here, and it cost nothing. As a contracting authority that sees its decision will not hold, withdraw it quickly and effectively. An announcement is not enough: only a withdrawal actually adopted operates retroactively to the date of the contested decision and thereby removes the harm required by article 14 of the Law of 17 June 2013. Do it well before the hearing — here four days — so that the case stays confined to admissibility and costs. Do expect the bill: around a thousand euros, plus the loss of the procedure you must redo. That is usually still cheaper than a ruling on the merits recording your reasoning defect. As a beneficiary of a contract with several winners, you need not wait for a co-beneficiary to defend your interests: you can intervene independently, even without a temporary association, and you then bear your own 150-euro intervention fee.
Ask yourself
Do you know that a withdrawn award decision renders your application inadmissible rather than without object, and that the difference makes none to your recovery of costs? Have you expressly claimed your procedural indemnity, even though you will no longer see the case dealt with on the merits? As an authority: have you actually adopted the withdrawal rather than merely announcing it, and far enough before the hearing to avoid a ruling on the merits? Have you checked whether your file contains documents for which you must make a reasoned request for confidential treatment? And as one of several beneficiaries of a joint contract: do you know that you can intervene independently, even when you are not in a temporary association with the other designated bidders?
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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 →