In judgment C.25.0289.N of 4 May 2026, the Court of Cassation confirmed that a company relying on the capacity of a third party to meet a selection criterion must, in certain cases, also involve that third party in the performance of the contract. The Council of State had previously ruled along the same lines.
1. Facts
The procedure leading to the cassation judgment pertains to a public contract regarding a framework agreement for the supply, installation, and maintenance of automatic rising bollards and accessories, as well as a central remote monitoring system. In the selection phase, the contracting authority required candidates to demonstrate their technical capacity, among other things in relation to the supply and installation of anti-terrorism bollards, by means of references, as provided in Article 68, §4, 1° of the Royal Decree on Public Procurement (Execution) 2017.
The company that was ultimately awarded the contract relied on the capacity of a third party to demonstrate its technical capability but subsequently chose to have the bollards supplied by another provider. The third party whose capacity it initially relied on was no longer involved in the procedure.
2. Procedure
The company that was not awarded the contract considered the selection and award decision to be unlawful, among other reasons on the basis of Article 73, §1, of the Royal Decree on Public Procurement (Execution) 2017. This provision allows economic operators to rely on the capacities of other entities, but stipulates that, with regard to criteria relating to educational and professional qualifications or relevant professional experience, they are only permitted to do so where those entities will effectively perform the works or services for which such capacity is required.
The appellate judges ultimately ruled in favor of the claimant, holding that:
- The third party on whose relevant professional experience reliance was placed had to effectively carry out the works;
- The wording of Article 73, §1, of the Royal Decree on Public Procurement (Execution) 2017 shows that “criteria relating to relevant professional experience” include requirements to submit references within the meaning of Article 68, §4, 1° of the same Decree;
- The obligation for the third party to perform the works does not apply solely to criteria relating to educational and professional qualifications, but also to relevant professional experience, as those two elements are not inextricably linked.
The Court of Cassation has confirmed the reasoning of the appellate judges in its judgment of 4 May 2026.
In summary: you cannot win a contract based on the references of an external partner and then sideline that partner afterward.
3. Case law of the Council of State
This case law of the Court of Cassation is hardly surprising. Indeed, the Council of State had previously ruled similarly in relation to a consortium of economic operators relying on the capacity of one of its members. In judgment no. 259,964 of 31 May 2024, the Council of State held that “if a consortium relies on the capacity of one or more of its members to meet criteria relating, among other things, to professional qualifications, this is only possible to the extent that the member concerned will actually perform the works or services for which such capacity is required.”
4. The principle also applies in reverse
Public procurement legislation and the principle of equal treatment also prevent a contractor participating individually in a procurement procedure from relying on experience gained by a consortium in another public contract, where that contractor did not actually participate in the performance of that contract.[1]
Effective participation in the execution of the contract is therefore of key importance when it comes to references and reliance on capacity. Established case law of the Council of State also confirms that a recently established legal entity bidding for a public contract may rely on the experience gained by its partners when they were active within another natural or legal person, provided that such experience is decisive for the bidder’s actual technical and professional capacity to perform the contract.[2]
5. Take-away
In short, when your company relies on the capacity of a third party to meet selection criteria relating to educational and professional qualifications or relevant professional experience, you must also effectively involve that party in the performance of the contract. Furthermore, you may only rely on such third-party capacity if that party has actually participated in contract execution in the past.
Would you like to know more about the possibility to rely on the capacity of third-party entities? Feel free to contact Sophie Bleux, Elisabeth Robbroeckx, and Lauren Weemans.
[1] Court of Justice, 4 May 2017, C-387/14, Esaprojekt.
[2] Council of State, 5 November 2025, n° 264.752, NV C.
10 July 2026
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