Notice to contracting entities in the telecommunications sector(1)

(1999/C 313/12)

EFTA Surveillance Authority notice inviting contracting entities in the telecommunications sector in the EFTA States being parties to the EEA Agreement to notify the EFTA Surveillance Authority, under Article 8(2) of the Act referred to in point 4 of Annex XVI to the EEA Agreement (Council Directive 93/38/EEC of 14 June 1993, coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors(2)), of any telecommunications services they regard as excluded from the scope of the Act.

1. The EFTA Surveillance Authority hereby invites contracting entities in the telecommunications sector in the EFTA States being parties to the EEA Agreement to notify it of any services they regard as excluded from the scope the Act refered to in point 4 of Annex XVI to the EEA Agreement (Directive 93/38/EEC), pursuant to Article 8(1) thereof, on the ground that other entities are free to offer the same services in the same geographical area and substantially under the same conditions.

2. The replies made by the contracting entities, under Article 8(2) of the Act will be examined by the EFTA Surveillance Authority with a view to allowing those entities to be exempted from the Act in respect of the purchases they make for the purpose of providing telecommunications services under conditions of effective competition.

3. In assessing competitive conditions in the markets referred to in the operators' replies, the EFTA Surveillance Authority will base its analysis on the factors indicating the existence, as a matter of law and of fact, of a competitive situation as mentioned 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(3) in connection with the interpretation of the same article in an earlier directive.(4).

4. The EFTA Surveillance Authority will include, among the factors indicating the existence of a situation of effective competition, the progress made by EFTA States being parties to the EEA Agreement in implementing the legislative framework underpinning the full liberalisation of telecommunications markets and the competitive provision of telecommunications services, having due regard, in this context, to the emergence of new services and the increasing convergence of telecommunications, the media and information technology.

5. The contracting entities concerned are therefore invited to provide the EFTA Surveillance Authority with all the relevant specific data, relating in particular to the characteristics of the services in question, the existence of alternative services, and market conditions (particularly prices), on the basis of which they request Article 8 to be applied. To that end they are asked to specify the data on which their declaration under Article 8 is based. For example, it would be desirable to have relevant information on the main categories of telecommunications services covered by the declaration and on the number of competitors offering or capable of offering the services concerned.

6. The contracting entities are invited to make reference to the categories of services they deem exempted using the categorisation listed in the Communication from the Commission pursuant to Article 8 of the Council Directive 93/38(5), i.e. public fixed voice telephony, public mobile voice telephony, satellite services, and data services including value added services (calling card, Internet, call back).

7. The contracting entities are also invited to indicate whether any of the information supplied is regarded as commercially sensitive.

8. Once the EFTA Surveillance Authority has examined the declarations made in response to this notice, it will publish in the EEA supplement to the Official Journal of the European Communities, for information, a list of the services it considers to be excluded under Article 8.

9. Declarations made in response to this notice should be sent, no later than 5 weeks after the date of its publication, to the following address: EFTA-Surveillance Authority, Goods Directorate , Rue de Trèves/Trierstraat 74 , B - 1040 Brussels.

(1) The Commission Notice was published in OJ C 273, 2.9.1998, Item 7 (1998/C 273/07).

(2) OJ L 199, 9.8.1993, p. 84. The Directive was incorporated into the EEA Agreement by EEA Joint Committee Decision 7/94 as the Act refered to point 4 of Annex XVI. By EEA Joint Committee Decision 96/99 an amending Act was incorporated into the EEA Agreement as the Act referred to in the second indent of point 4 of Annex XVI to the EEA Agreement (European Parliament and Council Directives 98/4/EC of 16 February 1998 (OJ L 101, 1.4.1998, p. 1)).

(3) [1996] ECR I-1631.

(4) 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). By Joint Committee Decision 7/94, this Directive was replaced by Directive 93/38/EC as the Act referred to in point 4 of the Annex XVI to the EEA Agreement.

(5) OJ C 156, 3.6.1999, Item 3 (1999/C 156/03)