Communication from the Commission pursuant to Article 8 of Directive 93/38/EEC

(1999/C 156/03)

(Text with EEA relevance)

List of services regarded as excluded from the scope of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors pursuant to Article 8 thereof

Directive 93/38/EEC is applicable in particular to contracts awarded by telecommunications operators; however, its constraints are no longer justified where there is effective competition after the recent liberalisation of this sector. For this purpose Article 8 of the Directive lays down that where there is effective competition in the telecommunications services market, the procurements for the provision of these services may be exempted from the scope of the Directive. In its communication on public procurement in the European Union(1) the Commission indcated that it would examine whether this Article could be applied.

In a notice published on 2 September 1998 in the Official Journal of the European Communities(2), the Commission invited contracting entities in the telecommunications sector to notify it, under Article 8(2) of Directive 93/38/EEC, of any telecommunications services they regarded as excluded from the scope of that Directive, pursuant to Article 8(1) thereof, on the ground that other entities were free to offer the same services in the same geographical area and substantially under the same conditions(3).

Moreover, in its fourth report on the implementation of the telecommunications regulatory package(4), the Commission noted the progress achieved by the Member States in implementing the legislative framework underpinning the full liberalisation of telecommunications markets. In particular, it noted that the national regulatory authorities are operational in all Member States and have started to apply the principles set out in the regulations.

The analysis of the declarations of exemption from the contracting entities was based, on the one hand, on the factors submitted by the operators as indicating the existence, as a matter of law and of fact, of a competitive situation as referred to by the Court of Justice of the European Communities in its judgment of 26 March 1996 in Case C-392/93 The Queen v. H. M. Treasury, ex parte British Telecommunications plc(5) in connection with the interpretation of the same article in an earlier directive(6) and, on the other, on the progress achieved by the Member States in implementing the regulations on telecommunications and the tangible results in the Member States' telecommunications markets of effective application of the measures transposed into national law, as indicated by the data contained in the aforementioned fourth report. Liberalisation has now occurred in the telecommunications sector and effective competition exists in most Member States, despite the fact that some Member States still benefit from transitional periods as regards the implementation of the telecommunications regulatory package.

In view of the above, the Commission is publishing, for information purposes, the following list of telecommunications services exempted from the scope of Directive 93/38/EEC by virtue of Article 8 thereof. The list will be updated according to developments in the conditions of effective competition in telecommunications markets in question. The effect of the applicability of Article 8(1) is that purchases by the entities providing an excluded service within the geographical area concerned will no longer be subject to the detailed provisions of the Directive.

The categorisation of the services has been done to facilitate the task of analysing competition and to help industry understand the practical impact of the telecommunications liberalisation on the application of procurement rules. Taken togehter, the Commission considers that these categories cover all of the telecommunications services referred to in Article 1(14) and (15) of the Directive and comply with the terminology used in Article 1(4)(c)(ii) of that Directive.

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(1) "Public procurement in the European Union", Communication of the Commission of 11 March 1998 (COM(1998) 143 final).

(2) Notice to contracting entities in the telecommunications sector (98/C 273/07) (OJ C 273, 2.9.1998, p. 12).

(3) 32 contracting entities from the Member States replied to the Commission's invitation.

(4) Communication to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions (COM(1998) 594 of 25 November 1998).

(5) [1996] ECR I, p. 1631.

(6) Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ L 297, 29.10.1990, p. 1).