In a series of judgments rendered on 16 December 2020 the Belgian Council of State ruled on the allocation of FM radio frequencies to radio stations in Flanders.
One of the key questions at issue was whether the Flemish authorities, in the context of a so-called beauty contest, could assess the candidates’ applications on the basis of criteria that were not explicitly included in the applicable legal framework.
The Council of State concluded that the application of additional award criteria is not necessarily in breach with the obligation of transparency as laid down in the Framework Directive and in the Authorisation Directive. According to the Council of State, this is only the case in the event the applicants can
demonstrate that the additional criteria are arbitrary. This conclusion may come a surprise since the approach in the context of public tenders is quite different. Indeed, it is settled case-law that the transparency obligation and the obligation of equal treatment in the context of public tenders imply, inter alia, that all the elements taken into consideration by the public authorities, as well as their relative importance, are known to the potential candidates from the outset and that no new award criteria can be added irrespective of the fact whether they are arbitrary or not.