Challenging a public procurement by the Catholic University of Louvain ? Not before the Council of State!

Article 24 of the Law of 17 June 2013 provides that the competent review body to hear an application for suspension in extreme urgency in the field of public procurement is the Council of State when the relevant awarding authority is an administrative authority. Otherwise, the judicial court has jurisdiction to hear appeals.

The notion of the administrative authority is a complex concept that has already been much discussed. In this case, the ousted bidder argued that the case law is particularly divided on the question of whether independent universities are administrative authorities. In this context, he brought proceedings before both the State Council and the ordinary courts.

In its judgment, the Council of State referred to the case law of the Court of Cassation, according to which a private law corporate entity may qualify as an administrative authority only in so far as it may take decisions binding on third parties. However, the decision to award a public contract to a particular company rather than another does not create obligations for third parties. As a result, the Council of State has no jurisdiction to decide on the suspension as a matter of extreme urgency of the University’s decision to award a public contract. Such an appeal must be brought before the ordinary courts.