| | 32004L0017: u3-30Procedure for establishing whether a given activity is directly exposed to competition    
| 32004L0017 - Utilities (3rd generation) | Article 30 | Article 30
Procedure for establishing whether a given activity is directly exposed to competition
1. Contracts intended to enable an activity mentioned in Articles 3 to 7 to be carried out shall not be subject to this Directive if, in the Member State in which it is performed, the activity is directly exposed to competition on markets to which access is not restricted.
2. For the purposes of paragraph 1, the question of whether an activity is directly exposed to competition shall be decided on the basis of criteria that are in conformity with the Treaty provisions on competition, such as the characteristics of the goods or services concerned, the existence of alternative goods or services, the prices and the actual or potential presence of more than one supplier of the goods or services in question.
3. For the purposes of paragraph 1, access to a market shall be deemed not to be restricted if the Member State has implemented and applied the provisions of Community legislation mentioned in Annex XI.
If free access to a given market cannot be presumed on the basis of the first subparagraph, it must be demonstrated that access to the market in question is free de facto and de jure.
4. When a Member State considers that, in compliance with paragraphs 2 and 3, paragraph 1 is applicable to a given activity, it shall notify the Commission and inform it of all relevant facts, and in particular of any law, regulation, administrative provision or agreement concerning compliance with the conditions set out in paragraph 1, where appropriate together with the position adopted by an independent national authority that is competent in relation to the activity concerned.
Contracts intended to enable the activity concerned to be carried out shall no longer be subject to this Directive if the Commission:
- has adopted a Decision establishing the applicability of paragraph 1 in accordance with paragraph 6 and within the period it provides for, or
- has not adopted a Decision concerning such applicability within that period.
However, where free access to a given market is presumed on the basis of the first subparagraph of paragraph 3, and where an independent national authority that is competent in the activity concerned has established the applicability of paragraph 1, contracts intended to enable the activity concerned to be carried out shall no longer be subject to this Directive if the Commission has not established the inapplicability of paragraph 1 by a Decision adopted in conformity with paragraph 6 and within the period it provides for.
5. When the legislation of the Member State concerned provides for it, the contracting entities may ask the Commission to establish the applicability of paragraph 1 to a given activity by a Decision in conformity with paragraph 6. In such a case, the Commission shall immediately inform the Member State concerned.
That Member State shall, taking account of paragraphs 2 and 3, inform the Commission of all relevant facts, and in particular of any law, regulation, administrative provision or agreement concerning compliance with the conditions set out in paragraph 1, where appropriate together with the position adopted by an independent national authority that is competent in the activity concerned.
The Commission may also begin the procedure for adoption of a Decision establishing the applicability of paragraph 1 to a given activity on its own initiative. In such a case, the Commission shall immediately inform the Member State concerned.
If, at the end of the period laid down in paragraph 6, the Commission has not adopted a Decision concerning the applicability of paragraph 1 to a given activity, paragraph 1 shall be deemed to be applicable.
6. For the adoption of a Decision under this Article, in accordance with the procedure under Article 68(2), the Commission shall be allowed a period of three months commencing on the first working day following the date on which it receives the notification or the request. However, this period may be extended once by a maximum of three months in duly justified cases, in particular if the information contained in the notification or the request or in the documents annexed thereto is incomplete or inexact or if the facts as reported undergo any substantive changes. This extension shall be limited to one month where an independent national authority that is competent in the activity concerned has established the applicability of paragraph 1 in the cases provided for under the third subparagraph of paragraph 4.
When an activity in a given Member State is already the subject of a procedure under this Article, further requests concerning the same activity in the same Member State before the expiry of the period opened in respect of the first request shall not be considered as new procedures and shall be treated in the context of the first request.
The Commission shall adopt detailed rules for applying paragraphs 4, 5 and 6 in accordance with the procedure under Article 68(2).
These rules shall include at least:
(a) the publication in the Official Journal, for information, of the date on which the three-month period referred to in the first subparagraph begins, and, in case this period is prolonged, the date of prolongation and the period by which it is prolonged;
(b) publication of the possible applicability of paragraph 1 in accordance with the second or third subparagraph of paragraph 4 or in accordance with the fourth subparagraph of paragraph 5; and
(c) the arrangements for forwarding positions adopted by an independent authority that is competent in the activity concerned, regarding questions relevant to paragraphs 1 and 2. | | 32005D0015 - First amendment of Utilities (3rd generation) | Article 1+2=U30 | Article 1
1. Requests concerning the applicability of Article 30(1) of Directive 2004/17/EC must contain at least the information stipulated in Annex I to this Decision.
2. When an independent authority that is competent in the activity concerned has adopted a reasoned position on matters which are relevant for the purposes of Article 30(1) and (2) of Directive 2004/17/EC, this position shall accompany the requests.
3. The requests and the positions referred to in paragraphs 1 and 2 shall be sent by electronic means to the following e-mail address:
Markt-C3@cec.eu.int.
If transmission by electronic means is not possible, these requests and positions shall be sent in triplicate to the following address:
European Commission
Directorate-General for Internal Market and Services
Directorate for Public Procurement Policy
B-1049 Brussels
Article 2
1. When the Commission receives a request concerning the applicability of Article 30(1) of Directive 2004/17/EC, it shall publish a notice containing the information stipulated in Part A or Part B of Annex II to this Decision, depending on the origin of the request.
2. If, in the cases provided for in the second and third sentences of the first subparagraph of Article 30(6) of Directive 2004/17/EC, the period allowed to the Commission to take a decision on the request is extended, the Commission shall publish a notice containing the information stipulated in Part A or Part B of Annex III to this Decision, depending on the origin of the request.
3. The applicability of Article 30(1) of Directive 2004/17/EC, in accordance with the second or third subparagraphs of Article 30(4) or in accordance with the fourth subparagraph of Article 30(5) of the said Directive, shall be the subject of a notice published by the Commission containing the information stipulated in Part A or Part B of Annex IV to this Decision, depending on the origin of the request.
4. The notices provided for in paragraphs 1, 2 and 3 shall be published in the Official Journal of the European Union, C series. | | 31993L0038 - Utilities (2nd generation) | Article 8 | Article 8
1. This Directive shall not apply to contracts which contracting entities exercising an activity described in Article 2 (2) (d) award for purchases intended exclusively to enable them to provide one or more telecommunications services where other entities are free to offer the same services in the same geographical area and under substantially the same conditions.
2. The contracting entities shall notify the Commission at its request of any services which they regard as excluded under paragraph 1. The Commission may periodically publish the list of services which it considers to be covered by this exclusion for information in the Official Journal of the European Communities. In so doing, the Commission shall respect any sensitive commercial aspects the contracting entities may point out when forwarding this information. | | 31990L0531 - Utilities (1st generation) | Article 8 | Article 8
1. This Directive shall not apply to contracts which contracting entities exercising an activity described in Article 2 (2) (d) award for purchases intended exclusively to enable them to provide one or more telecommunications services where other entities are free to offer the same services in the same geographical area and under substantially the same conditions.
2. The contracting entities shall notify the Commission at its request of any services they regard as covered by the exclusion referred to in paragraph 1. The Commission may periodically publish the list of services which it considers to be covered by this exclusion, for information in the Official Journal of the European Communities. In so doing, the Commission shall respect any sensitive commercial aspects the contracting entities may point out when forwarding this information. |
| Case | Pte | Ref | Text | C392/03
British Telecommunications | 24-28 | U1-4.2-impl
U1-8.1
RU1-2.1.1.c.p1 | 24 Article 8(2) of the directive, like Articles 6(3) and 7(2), provides that contracting entities are to notify the Commission at its request of any services which they regard as excluded under the aforementioned articles. If it were for the Member States to determine the services in question, they would also be obliged to notify the Commission of the services so excluded from the scope of the directive, in order to enable the Commission to accomplish the task assigned to it by those provisions.
25 Since the directive does not impose any such obligation on the Member States, as it does in Article 3(4), it is for the contracting entities alone to determine the services excluded pursuant to Article 8(1).
26 That interpretation is confirmed by the objective of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14), namely to provide adequate legal protection for suppliers or contractors in the event of infringement of Community legislation on public procurement (see, in that regard, the fifth recital in the preamble to Directive 92/13).
27 If the decision to exclude certain services from the scope of the directive were left to the Member States, economic operators would be denied recourse to the legal remedies afforded by Directive 92/13 in the event of infringement by contracting entities of the Community rules on public procurement, in particular the right to claim damages and to apply for injunctive relief, as provided for by Article 2(1), with a view to prevention or termination of any infringement.
28 Lastly, that interpretation makes it possible to ensure equality of treatment between contracting entities and their suppliers, who thereby remain subject to the same rules. |
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