EFTA SURVEILLANCE AUTHORITY DECISION

No 200/99/COL

of 15 September 1999

establishing that the exploitation of geographical areas for the purpose of exploring for or extracting oil or gas does not constitute in Norway an activity defined in Article 2(2)(b)(i) of the Act referred to in point 4 of Annex XVI to the EEA Agreement (Council Directive 93/38/EEC) and that entities carrying on such an activity are not to be considered in Norway as operating under special or exclusive rights within the meaning of Article 2(3)(b) of the Act

THE EFTA SURVEILLANCE AUTHORITY,

Having regard to the Agreement of the European Economic Area(1),

Having regard to 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, as amended) and in particular Articles 3(4) and(5) and 40(5) to (8) thereof,

Having regard to the Act referred to in point 12 of Annex IV to the EEA Agreement (Council Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons), and in particular Article 12 thereof,

Whereas, pursuant to Article 3 of the Act referred to in point 4 of Annex XVI to the EEA Agreement (Council Directive 93/38/EEC), an EFTA State may request the EFTA Surveillance Authority to provide that exploitation of geographical areas for the purpose of exploring for or extracting oil, gas, coal or other solid fuels is not to be considered to be an activity defined in Article 2(2)(b)(i) of the Act and that entities. are not to be considered as operating under special or exclusive rights within the meaning of Article 2(3)(b) by virtue of carrying on one or more of those activities, provided that a number of precise conditions laid down in its paragraphs 1 and 3 are satisfied with respect to the relevant national provisions concerning such activities and that, pursuant to its paragraph 2, any EFTA State requesting such a decision ensures that entities observe the principles of non-discrimination and competitive procurement in awarding contracts and communicate to the EFTA Surveillance Authority information relating to the award of such contracts;

Whereas EFTA States, which have complied with the provisions of the Act referred to in point 12 of Annex IV to the EEA Agreement (Council Directive 94/22/EC), shall be considered to satisfy the conditions laid down in Article 3(1) of the Act referred to in point 4 of Annex XVI to the EEA Agreement (Council Directive 93/38/EEC);

Whereas, by letters dated 11 July 1996 and 1 July 1999 the Norwegian Government requested the EFTA Surveillance Authority to provide that exploitation of geographical areas for the purpose of exploring for or extracting oil or gas should not be considered in Norway to be an activity defined in Article 2(2)(b)(i) of the Act referred to in point 4 of Annex XVI to the EEA Agreement (Council Directive 93/38/EEC) and the entities carrying on such an activity are not to be considered in Norway as operating under special or exclusive rights within the meaning of Article 2(3)(b) of the Act; whereas that request as amended did not cover the exploitation of geographical areas for the purpose of exploring for or extracting coal or other solid fuels;

Whereas, Norway has complied with the Act referred to in point 12 of Annex IV to the EEA Agreement (Council Directive 94/22/EC) by Act No 72 of 29 November 1996 relating to petroleum activities and by the Regulation of 27 June 1997 relating to petroleum activities, which was amendment by the Regulation of 17 July 1998;

Whereas, the Norwegian Regulation of 16 December 1994 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunication sectors (the utilities), as last amended on 18 June 1999, implements the Act referred to in point 4 of Annex XVI to the EEA Agreement (Council Directive 93/38/EEC) into Norwegian law;

Whereas, in accordance with Article 3(2)(b) of that Act, the Regulation, as amended on 18 June 1999, is in compliance with the principles of non-discrimination and competitive procurement by entities carrying out exploration or extraction of oil and gas, in particular as regards the information they make available to enterprises concerning their intentions with respect to the award of contracts, and with the obligation to transmit to the EFTA Surveillance Authority information of the award of such contracts;

Whereas, as the Regulation applies to contract award procedures relating to activities in connection with the exploitation of hydrocarbon licenses, independently of when such licenses were granted, Norway has complied with the conditions pursuant to Article 3(3) of the Act referred to in point 4 of Annex XVI to the EEA Agreement (Council Directive 93/38/EEC);

Whereas, in accordance with Article 40(5) to (8) of the Act referred to in point 4 of Annex XVI to the EEA Agreement (Council Directive 93/38/EEC), the EFTA Public Procurement Committee assisting the EFTA Surveillance Authority (EPPC) has delivered its opinion on this Decision,

HAS ADOPTED THIS DECISION:

1. From 15 September 1999 the exploitation of geographical areas for the purpose of exploring for or extracting oil or gas shall not be considered in Norway as an activity defined in Article 2(2)(b)(i) 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, as amended) and entities carrying on such an activity shall not be considered in Norway as operating under special or exclusive rights within the meaning of Article 2(3)(b) of that Act.

2. 1. This Decision is taken on the basis of the provisions adopted by Norway as of 18 June 1999 implementing the Act referred to in point 12 of Annex IV to the EEA Agreement (Council Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons) and Articles 3(2) and (3) of the Act referred to in point 4 of Annex XVI to the EEA Agreement (Council Directive 93/38/EEC) and communicated to the EFTA Surveillance Authority.

2. Any laws, regulations or administrative provisions amending the rules mentioned under paragraph 1 shall be communicated to the EFTA Surveillance Authority as soon as they are adopted.

3. The information referred to in paragraph 2 is notified to the EFTA Surveillance Authority in order to enable it to assess if it is appropriate to amend, withdraw or maintain this Decision.

3. This Decision is addressed to the Kingdom of Norway.

Done at Brussels, 15 September 1999.

For the EFTA Surveillance Authority

Hannes HAFSTEIN

College Member

(1) Hereinafter referred to as the "EEA Agreement".