Pool basis Princess Elisabeth: annulment

The royal decree of 20 May 2009, which governs the financial and material management of the Scientific Pool basis "Princess Elisabeth", has been amended by a royal decree of 10 August 2015. Among other things, the provision repealed contained in Article 4, paragraph 2 , of the royal decree of 20 May 2009, whereby the International Pool Foundation (IPF) was charged with maintenance and conservation of the basis (including operational logistics) under a partnership agreement. Pursuant to that new decision, the Pool secretariat may entrust the performance of those tasks to one or more government agencies or bodies or, with due regard to public procurement, to one or more third parties who have the necessary expertise and human and material resources.

The Pool Foundation brought an action for annulment before the Council of State claiming, inter alia, that the royal decree of 10 August 2015 infringed Article 62 of the Law of 24 July 2008 on various provisions (I), pursuant to this article the Pool secretariat is in charge of the financial and material management of the scientific basis "Princess Elisabeth" in the context of the donation to the State by the International Pool Foundation.

By judgment no. 235.839 of 23 September 2016, the Council of State suspended the implementation of the royal decree of 10 August 2015. Now, in its judgment no. 238.471 of 9 June 2017, the Council of State annulled the royal decree of 10 August 2015 and the ministerial decree of 24 August 2015 appointing the members of the Policy council of the Pool secretariat.

The Council is of the opinion that Article 62 of the above mentioned act, by referring to the donation of the basis, confirms the ratification of the Pool Foundation's partnership as stipulated in the agreement concluded between the Foundation and the State on 15 June 2007 . As the Council of State finds that the changes made in the royal decree of 20 May 2009 do not take into account the status of "privileged partner" granted to the Pool Foundation by the aforementioned agreement and consequently by the Legislature ratified, the Council declares that the plea is well founded. In the above mentioned judgment, the Council rejects the argument put forward by the State against the action based on the argument that the status of privileged partner was awarded to the Pool basis without appeal to competition because in this case it is not a project the state decides and for which he then seeks partners to implement it. The Pool basis was designed and built by the IPF and was subsequently granted to the State under certain conditions, one of which contained that the IPF keeps the responsibility for maintenance and conservation of the basis and its equipment in view of the course of the scientific activities. Any form of appeal to competition would have been unthinkable in that connection.

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