Applications for an exemption of public procurement rules for activities directly exposed to competition in the utilities sector

According to EEA rules on public procurement, the provisions of Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors should not apply to activities directly exposed to competition on markets to which access is not restricted.          

EEA States or, where national legislation provides for it, the contracting authority, may therefore submit a request to the Authority aimed at establishing the fulfilment of the conditions referred to above. The Authority will carry out the necessary competition assessment within a deadline of generally 90 or 130 working days, with possible extensions, depending on the circumstances of the case.

Requests should be complete and may be accompanied by a reasoned and substantiated position, adopted by an independent national authority that is competent in relation to the activity concerned (e.g. national competition authority, national telecommunication regulator, etc), which thoroughly analyses the conditions for the possible applicability of an exemption. However, the final decision whether an exemption from public procurement rules is to be granted to the activity in question is incumbent upon the Authority. The administrative procedure is cost-free. The Authority does not claim any fees.

In the interest of good administration, it is strongly advised to conduct pre-notification discussions with the Authority, in which the matter would be discussed informally. During these pre-notification discussions, the Authority would inform the potential applicant about the information to provide and discuss with him the situation of competition in the respective sector. The Authority would further assess whether a specific draft application would comply with the legal requirements and discuss its chances of success in order to avoid unnecessary work.

During the formal procedure, once the application has been submitted, the Authority might request information from national authorities, competitors, etc, based on the instruments available to the Authority in the area of EEA competition law. The procedure foresees cooperation with the European Commission where necessary.

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