EN Official Journal of the European Union L 12/53

COMMISSION IMPLEMENTING DECISION (EU) 2018/71

of 12 December 2017

exempting the production and wholesale of electricity in the Netherlands from the application of Directive 2014/25/EU of the European Parliament and of the Council on procurement by entities operating in the water, energy, transport and postal services sector and repealing Directive 2004/17/EC

(notified under document C(2017) 8339)

(Only the Dutch text is authentic)

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (1), and in particular Article 35(3) thereof,

Having regard to the request submitted by DONG Energy A/S (DONG) (2), Eneco B.V. (Eneco) and N.V. Nuon Energy (Nuon) (hereinafter referred to as the Applicants) by email of 30 January 2017,

After consulting the Advisory Committee for Public Contracts,

Whereas:

1. FACTS

(1) On 30 January 2017, DONG, Eneco and Nuon transmitted to the Commission, by email, a request pursuant to Article 35 of Directive 2014/25/EU (hereinafter to referred to as ‘the Request’).

(2) The Request submitted by DONG, Eneco and Nuon, which are considered as contracting entities in the meaning of Article 4 of Directive 2014/25/EU, concerns, as described in the request, ‘the production and wholesale market for electricity’.

(3) The Applicants are ‘public undertakings’ within the meaning of the Directive, as they are ultimately controlled by State, regional or local authorities: (a) DONG is part of the DONG Energy group. Of the shares in the ultimate holding company of DONG Energy, 50,4 % are currently held by the Kingdom of Denmark which holds sole control. Until recently, the Kingdom of Denmark held joint control together with Goldman Sachs (3), but in an IPO that took place on 9 June 2016, the Kingdom of Denmark brought down its shareholding from 58,8 %, but acquired sole control over DONG. According to a political agreement by a majority in the Danish parliament, the Kingdom of Denmark is to retain its majority shareholding at least until 2020. (b) Eneco is controlled by Eneco Holding B.V. The shares in Eneco Holding B.V. are held by 53 municipalities, which are mainly located in the Dutch Provinces of South Holland, North Holland, Utrecht and Friesland. (c) The shares in Nuon are held by Vattenfall AB. Vattenfall AB is a non-listed company, 100 per cent owned by the Swedish state.

(4) As the Request has not been accompanied by a position adopted by an independent national authority within the meaning of Article 35(2) of Directive 2014/25/EU, the Commission informed the Dutch authorities about the Request and also requested additional information by email of 24 March 2017. The reply to this request for information was transmitted by the Dutch authorities by email, on 19 June 2017. The response was deemed to be incomplete and led the Commission to ask further clarifications on 27 July 2017, which the Dutch authorities provided on 25 September 2017.

(5) Given the fact that the replies to the request for information had not been received within the deadline fixed by the Commission, the time-limit for taking a decision was suspended during the period between the expiry of the deadline set in the request for information (17 April 2017), and the receipt of complete information (25 September 2017), therefore the new deadline for adoption a Commission Decision became 12 December 2017.

2. LEGAL FRAMEWORK

(6) Directive 2014/25/EU applies to the award of contracts for the pursuit of activities related to the production and wholesale of electricity, unless this activity is exempted pursuant to Article 34 of that Directive.

(7) Article 34 of Directive 2014/25/EU provides that contracts intended to enable the performance of one of the activities to which the Directive applies shall not be subject to the Directive if, in the Member State in which it is carried out, the activity is directly exposed to competition on markets to which access is not restricted. Direct exposure to competition is assessed on the basis of objective criteria, taking account of the specific characteristics of the sector concerned.

3. ASSESSMENT

3.1. Free access to the market

(8) Access is deemed to be unrestricted if the Member State has implemented and applied the relevant Union legislation opening a given sector or a part of it. This legislation is listed in Annex III to Directive 2014/25/EU. For the electricity sector, it refers to Directive 2009/72/EC of the European Parliament and of the Council (4).

(9) The Netherlands has transposed Directive 2009/72/EC in the national Law through the Dutch Electricity act 1998 (5) (Elektriciteitswet). Consequently, and in accordance with Article 34(1), access to the market should be deemed not to be restricted on the entire territory of the Netherlands.

3.2. Direct exposure to competition

(10) Direct exposure to competition should be evaluated on the basis of various indicators, none of which are, per se, decisive. In respect of the markets concerned by this decision, the market share of the main players on a given market constitutes one criterion which should be taken into account. Given the characteristics of the markets concerned, further criteria should also be taken into account.

(11) This Decision is without prejudice to the application of the rules on competition and other fields of Union law. In particular, the criteria and the methodology used to assess direct exposure to competition under Article 34 of Directive 2014/25/EU are not necessarily identical to those used to perform an assessment under Article 101 or 102 of the Treaty or Council Regulation (EC) No 139/2004 (6). This point was also upheld by the General Court in a recent judgment (7).

(12) It should be kept in mind that the aim of this Decision is to establish whether the services concerned by the Request are exposed to such a level of competition (in markets to which access is not restricted within the meaning of Article 34 of Directive 2014/25/EU) which will ensure that, also in the absence of the discipline brought about by the detailed procurement rules set out in Directive 2014/25/EU, procurement for the pursuit of the activities concerned will be carried out in a transparent, non-discriminatory manner based on criteria allowing purchasers to identify the solution which overall is the economically most advantageous one. In this context, it is important to keep in mind that, in the market concerned, not all market players are subject to the public procurement rules (8). Therefore, the companies which are not subject to those rules, when acting on those markets, have the possibility to bring competitive pressure on the market players which are subject to public procurement rules.

3.2.1. Product market definition

(13) According to Commission precedent Case COMP M.4110 E.ON – ENDESA, of 25 April 2006 (9), the following relevant product markets could be distinguished in the electricity sector: (i) generation and wholesale supply; (ii) transmission; (iii) distribution and (iv) retail supply. While some of these markets may be further subdivided, to date, previous Commission practice (10) rejected a distinction between an electricity generation market and a wholesale supply market since generation as such is only a first step in the value chain, but electricity volumes generated are marketed via the wholesale market.

(14) The Request by DONG, Eneco and Nuon pertains to electricity generation and wholesale.

(15) The Dutch Authority for Consumers and Markets (Autoriteit Consument & Markt ACM) considered that the production and wholesale electricity market included generation from both conventional and renewable sources (11). In that case, ACM observed that wind energy is part of the market for the wholesale and production of electricity (12). It added that electricity generated from wind is traded on the same markets as electricity produced by other sources (13). ACM thus decided not to make a separate assessment of the wholesale of wind power.

(16) The Applicants consider that the situation of the renewable electricity in the Netherlands is different from the situation in Germany and in Italy respectively. According to the Applicants, renewable electricity in the Netherlands is subject to market forces and is therefore interchangeable with conventional electricity. In this respect, the Applicants note that all the energy companies active in the Netherlands have a trading company. The trading activities within the trading companies are used to source electricity by own production and on the market in order to fulfil the obligations towards their customers on the retail markets. Within this trading portfolio, renewable electricity is fully interchangeable with conventional power. If the trading companies source electricity on the market, they purchase electricity on the power exchanges, but also via bilateral agreements such as Power Purchase Agreements (PPA). Trading companies enter into PPAs with producers of conventional power as well as producers of renewable power. The trading companies of the energy companies compete for the sale of PPAs with renewable electricity producers who sell their power to market parties. The Transmission System Operator (TSO) does not procure any of the renewable production. Therefore, according to the Applicants, the production of renewable electricity is indeed subject to market forces, which means that it is not necessary to follow the European public procurement rules.

(17) The Applicants add that the legal framework for producers of conventional and renewable electricity is similar. The only significant difference in their view is the subsidy received by renewable electricity generators, designed to cover the difference between the cost of renewable electricity and the market price. The subsidy scheme in place in the Netherlands is known as Stimulering Duurzame Energieproductie (SDE+).

(18) In 2012, the Commission issued exemption decisions in relation to the German and the Italian electricity markets (14). For Germany, the Commission considered that the ‘production and marketing of electricity regulated under EEG’ is not part of the ‘market for generation and first sale of electricity produced from conventional sources’ because ‘EEG is normally not directly sold on the wholesale market but first bought by the transmission grid operators for a statutory rate of remuneration’. Similarly, for Italy the Commission considered that the market for ‘production and wholesale of electricity generated from renewable sources’ is separate from the ‘market for production and wholesale of electricity generated from conventional sources’ because ‘the sale of the electricity generated from renewable sources which are subject to the CIP6 and FIT mechanisms mostly takes place via the energy service operator’. Key reasons for the Commission to make such a distinction were, essentially, the sale by renewable electricity producers of their production to a non-market entity (Transmission system Operator — TSO in Germany and Gestore dei Servizi Energetici – GSE in Italy). Additional considerations put forward in these two precedents were: (i) priority feed-in for renewables; (ii) a statutory rate of remuneration. The Commission remarked that in Germany and Italy renewable generation was therefore not subject to market forces.

(19) In the present case, renewable electricity producers sell their electricity directly on the wholesale market, in competition with conventional electricity producers.

(20) Furthermore, the Dutch Electricity Act does not mandate priority feed-in for renewables. Priority access for renewables is foreseen in the rules of congestion management and applies only in case of congestion in the grid. However, it is noted that in the last years there have been no congestion management issues in the Netherlands.

(21) The only common element with the German and Italian precedents concerns the statutory rate of remuneration. However, it should be noted that even this element presents significant differences with these two precedents. In this regard, the Commission notes that the allocation of the SDE+ subsidy is exposed to competition through a bidding process which disciplines the behaviour of renewable electricity producers with regard to their procurement policy (15). Indeed, under the SDE+ subsidy regime, projects with different renewable technologies must compete for a predetermined amount of available funds. That competition is technology neutral. The projects and/or technologies that submit a bid with the lowest price will receive a subsidy first, until no more subsidy funds are available. The Dutch SDE+ system thus encourages competitive bids, whereas the competitors would try to minimise their cost (hence the value of the subsidy).

(22) Therefore, in view of the above considerations, renewable electricity producers in the Netherlands are subject to competitive constraints.

(23) Taking into account the above specificities of the Dutch electricity market, for the purposes of evaluating the conditions laid down in Article 34(1) of Directive 2014/25/EU, and without prejudice to competition law, the relevant product market is hereby defined as the market for generation and wholesale of electricity produced from both conventional and renewable sources.

3.2.2. Geographic market definition

(24) According to the application, the request pertains to activities on the territory of the Netherlands.

(25) In its decision on RWE/Essent (16), the Commission took the view that the geographic scope of the market was either equal to Germany and the Netherlands (for off-peak hours) and national (for peak hours), or national (for all hours) – i.e. depending on whether a further distinction is made between peak and non-peak hours (17).

(26) ACM observed in the Nuon-Reliant case that the market for production and wholesale of electricity is at least national in scope (18). ACM took into account the competitive pressure of imports. ACM observed that the geographical market for off-peak hours at least covers the Netherlands and Germany (19). However, ACM did note that during high demand the competitive pressure of imports was restricted because of limited interconnection capacity. ACM observed that there was a limited correlation between the prices in the Netherlands and those in Germany.

(27) ACM did refer to indications that the geographical market could be wider than national during peak hours as well. ACM predicted that that would be the case if the effectively available import capacity would be expanded to at least 6 500 MW (20). Apart from the Netherlands, that market would also include Germany or Belgium. Additionally, in case there would be a market for ‘super peak hours’ (which ACM ultimately left open) (21), the geographical market would include at least the Netherlands and Germany if the effectively available import capacity would be expanded to at least 8 250 MW (22).

(28) Since the Nuon/Essent decision, there have been various projects aimed at increasing interconnection capacity to and from the Netherlands. The NorNed cable between Norway and the Netherlands has been in service since 2008 with a capacity of 700 MW. The BritNed cable between Britain and the Netherlands has been in service since 2011 with a capacity of 1 000 MW. Several other projects are under way: Border Interconnector Capacity (MW) Built Germany Doetinchem-Wesel (new) 1 500 2016 (entry in service in 2018) Germany Meeden-Diele (expansion) 500 2018 Denmark COBRA 700 2019 Belgium Kreekrak-Zandvliet 700-900 2021

(29) The significant increase in interconnection capacity between the Netherlands and neighbouring countries is likely to have had a favourable impact on competition in the Dutch electricity generation market.

(30) The Commission takes note of the growing importance of imports on the Dutch electricity generation and wholesale market and takes the view that, for the purposes of evaluating the conditions laid down in Article 34(1) of Directive 2014/25/EU, and without prejudice to the competition law, the Dutch generation and wholesale electricity market is to be considered to be at least national in scope.

3.2.3. Market analysis

(a) Market shares

(31) In previous decisions (23), the Commission considered that, concerning production and wholesale market, the cumulated market share of the largest three undertakings is relevant. However, given that not all market players are subject to the public procurement rules, the analysis focuses on the market position and competitive constraints on the individual market players subject to the public procurement rules. Other measures of concentration may also be considered relevant.

(32) The Dutch Central Statistical Office (Centraal Bureau voor de Statistiek, hereinafter CBS), issued a report in February 2015 on the electricity market in the Netherlands. (24) According to the report, installed capacity in the Netherlands was about 31,5 GW, of which 20,1 GW was centralised installed capacity and 11,5 GW was decentralised installed capacity. Central production is defined as production of electricity by thermal or nuclear plants that supply directly to the high-voltage grid. All other electricity production is called decentralised production, by thermal installations, wind power, water power and solar power. Table 1 Installed capacity (MW and number of installations) in 2012, 2013 and 2014 2012 (MW) 2012 (number) 2013 (MW) 2013 (number) 2014 (MW) 2014 (number) Centralised 19 025 48 20 132 50 21 515 49 Decentralised 10 905 6 405 11 408 6 451 11 799 6 445 Total 29 930 6 453 31 540 6 501 33 314 6 494 (Source: CBS)

(33) The Applicants also provide their own production figures, including a split between conventional and renewable production. The table shows that overall production has slowly decreased, while the shares of DONG and Eneco in overall production have slowly increased. Overall production by Nuon has remained relatively stable. The Applicants hold a combined approximate share of less than 20 % of the overall generation. Their combined market share is not significantly different between conventional and renewable generation. Table 2 Electricity generation, renewable and conventional (millions MWh), 2011-2015 (provisional) (25) , market shares between brackets Generation 2011 2012 2013 2014 2015 Generation 113 000 102 500 100 900 103 400 109 600 Dong 500 (0,5 %) 600 (0,6 %) 500 (0,5 %) 1 300 (1,2 %) 1 300 (1,2 %) Eneco 1 500 (1,3 %) 2 200 (2,2 %) 1 500 (1,5 %) 2 600 (2,5 %) 4 900 (4,4 %) Nuon 13 400 (11,9 %) 13 100 (12,8 %) 17 100 (17 %) 13 900 (13,4 %) 13 700 (12,5 %) Others 97 500 (86,3 %) 86 600 (84,5 %) 81 800 (81 %) 85 700 (82,8 %) 89 700 (81,8 %) Conventional 101 000 90 000 88 900 91 600 96 400 Dong […] (*1) […] […] […] […] Eneco […] […] […] […] […] Nuon […] […] […] […] […] Others 86 900 (86,1 %) 75 500 (83,9 %) 71 400 (80,3 %) 75 900 (82,9 %) 79 400 (82,3 %) Renewable 12 000 12 500 12 000 11 800 13 200 Dong […] […] […] […] […] Eneco […] […] […] […] […] Nuon […] […] […] […] […] Others 10 600 (88,4 %) 11 100 (88,5 %) 10 400 (86,4 %) 9 800 (82,7 %) 10 300 (77,9 %)

(34) Additional data was provided by the Dutch authorities on 25 September 2017. It is summarised in the table below. Operator Market share 2013 2014 2015 Delta Production: Capacity: […] […] […] DONG Production: Capacity: […] […] […] EDF Production: Capacity: […] […] […] Eneco Production: Capacity: […] […] […] NUON Production: Capacity: […] […] […]

(35) The data provided both by the Applicants (26) and the Dutch authorities show that other electricity producers which together have a cumulative market share comprised approximately between 70 and 80 %, are not subject to the provisions of the procurement law.

(36) The aim of the present Decision is to establish whether the activities of generation and wholesale of electricity are exposed to such a level of competition (on markets to which access is free) that this will ensure that, also in the absence of the discipline brought about by the detailed procurement rules set out in Directive 2014/25/EU, the procurement for the pursuit of the activities concerned will be carried out in a transparent, non-discriminatory manner based on criteria allowing the contracting entity to identify the solution which overall is the economically most advantageous.

(37) In respect of generation and wholesale supply of electricity, the facts above can be considered to be an indication of direct exposure to competition of the market players which are covered by the procurement law provisions.

(b) Other factors

(38) The level of imports in the Netherlands stands at 28 % of total supply and consumption. This is for instance higher than Italy's electricity imports (13,4 %) when the Italian electricity generation market was assessed (27). The Commission found that those imports had a pro-competitive effect, and would only improve further as additional interconnection capacity would become available. The magnitude of imports in the Dutch market reinforces the conclusion that contracting entities operating on the Dutch electricity generation market are exposed to competition.

(39) The degree of liquidity on the wholesale market, as analysed by the national competition authority ACM (28), and the functioning of the Dutch balancing market do not oppose the conclusion that contracting entities operating on the Dutch production market are exposed to competition.

4. CONCLUSIONS

(40) In view of the factors examined above, the condition of direct exposure to competition laid down in Article 34 of Directive 2014/25/EU should be considered to be met in view of contracting entities with respect of production and wholesale supply of electricity in the Netherlands.

(41) Furthermore, since the condition of unrestricted access to the market is deemed to be met, Directive 2014/25/EU should not apply when contracting entities award contracts intended to enable production and wholesale supply of electricity to be carried out in the Netherlands nor when they organise design contests for the pursuit of such an activity in that geographical area.

(42) This Decision is based on the legal and factual situation as of January 2017 to November 2017 as it appears from the information submitted by the Applicants and by the Dutch Authorities. It may be revised, should the conditions for the applicability of Article 34 of Directive 2014/25/EU be no longer met, following significant changes in the legal or factual situation.

(43) It is recalled that Article 16 of Directive 2014/23/EU of the European Parliament and of the Council (29) provides for an exemption from the application of that Directive for concessions awarded by contracting entities where, for the Member State in which the concessions are to be performed, it has been established pursuant to Article 35 of Directive 2014/25/EU that the activity is directly exposed to competition in accordance with Article 34 of that Directive. Since it was concluded that the activity of production and wholesale of electricity is subject to competition, concession contracts intended to enable the performance of those activities in the Netherlands will be excluded from the field of application of Directive 2014/23/EU.

(44) The measures provided for in this Decision are in accordance with the opinion of the Advisory Committee for Public Contracts,

HAS ADOPTED THIS DECISION:

Article 1

Directive 2014/25/EU shall not apply to contracts awarded by contracting entities and intended to enable production and wholesale of electricity to be carried out in the Netherlands.

Article 2

This Decision is addressed to the Kingdom of the Netherlands.

Done at Brussels, 12 December 2017. For the Commission Elżbieta BIEŃKOWSKA Member of the Commission

(1) OJ L 94, 28.3.2014, p. 243.

(2) This includes the activities of:

1. (The subsidiaries of) DONG Energy Wind Power A/S, which is an indirect 100 % subsidiary of DONG. This entity is also the one formally submitting the exemption request on behalf of DONG.

2. DONG Energy Netherlands B.V., which indirectly holds a 50 % stake in the Enecogen power plant

(3) See Case No COMP/M.7068.

(4) Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ L 211, 14.8.2009, p. 55).

(5) Wet van 12-7-2012, Stb. 2012, 334 en Inwerkingtredingsbesluit van 12-7-2012, Stb. 2012, 336.

(6) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).

(7) Judgment of 27 April 2016, Österreichische Post AG v. Commission, T-463/14, EU:T:2016:243, paragraph 28.

(8) According to the Request only Delta, DONG, EDF, Eneco and Nuon are contracting entities in the sense of Article 4 of Directive 2014/25/EU, hence subject to the public procurement rules.

(9) Case COMP M.4110 E.ON – ENDESA, of 25 April 2006, paragraphs 10 and 11, p. 3.

(10) Case COMP/M.3696 E.ON – MOL of 21 January 2005, paragraph 223, Case COMP/M.5467, RWE- ESSENT of 23 June 2009, paragraph 23.

(11) ACM Decision Case 6015 Nuon/Essent of 21 May 2007, paragraph 53.

(12) Nuon/Essent, para. 14, 174.

(13) Furthermore, ACM noted that – for end customers – the precise source of electricity is no longer traceable. A certain degree of traceability may exist related to guarantees of origin – but the electricity itself that (end) customers buy is still not traceable to the source.

(14) Commission Implementing Decision 2012/218/EU of 24 April 2012 exempting the production and wholesale of electricity produced from conventional sources in Germany from the application of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ L 114, 26.4.2012, p. 21) and Commission Implementing Decision 2012/539/EU of 26 September 2012 exempting the production and wholesale of electricity produced from conventional sources in macro zone north and macro-zone south in Italy from the application of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sector and amending Commission Decision 2010/403/EU (OJ L 271, 5.10.2012, p. 4).

(15) The SDE+ subsidy scheme was deemed to be compatible with EU state aid rules in 2015, as it limits to a minimum the distortion to competition — See SA.39399 (2015/N).

(16) Case COMP/M.5467, C(2009) 5177.

(17) RWE/Essent, paragraph 32.

(18) ACM decision in Case 5098/E.ON–NRE; ACM decision in Case 3386/Nuon – Reliant Energy Group.

(19) Vision document [on] concentrations [in the] energy markets', published in November 2006 by the Dutch Competition Authority (NMa), paragraph 139.

(20) Idem, paragraph 139.

(21) Idem, paragraphs 29, 72 and an earlier definition in Nuon/Reliant case in footnote 4: ‘Super peak is the electricity needed on working days between 8:00 and 20:00’.

(22) Idem, paragraph 139. Nuon/Essent, paragraph 91.

(23) Implementing Decision 2012/218/EU and Implementing Decision 2012/539/EU.

(24) Centraal Bureau voor de Statistiek, ‘Elektriciteit in Nederland’, February 2015, see https://www.cbs.nl/nl-nl/publicatie/2015/07/elektriciteit-in-nederland

(*1) Confidential information.

(25) http://statline.cbs.nl/Statweb/publication/?DM=SLNL&PA=00377&D1=a&D2=701,712,714-715,718,729,731-732&HDR=G1&STB=T&VW=T (source: CBS)

(26) According to the Request, section 5.2.3

(27) Commission Decision, 2010/403/EU of 14 July 2010 exempting the production and wholesale of electricity in Italy's Macro-zone North and the retail of electricity to end customers connected to the medium, high and very high voltage grid in Italy, from the application of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ L 186, 20.7.2010, p. 44), recital 11.

(28) In its most recent liquidity report, published in 2014, ACM concluded that the liquidity of the wholesale electricity market (e.g. higher traded volumes, lower price volatility and smaller bid-ask spread) appears to have increased over the period 2009-2013. ACM also noted that the number of transactions in intraday products in 2013 more than doubled compared to 2012.

(29) Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ L 94, 28.3.2014, p. 1).