Communication from the EFTA Surveillance Authority pursuant to 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(1)

(2001/C 24/04)

List of services regarded as excluded from the scope the Act referred to in point 4 of Annex XVI to the EEA Agreement, hereinafter referred to as the Directive, coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors pursuant to Article 8 thereof.

The Directive 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 a notice published on 30 October 1999 in the Official Journal of the European Communities and in the EEA Supplement, the EFTA Surveillance Authority invited contracting entities in the telecommunications sector to notify it, under Article 8(2) of the Directive, 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(2).

The EFTA Surveillance Authority takes note of the progress achieved by the EEA EFTA States in implementing the relevant Acts underpinning the liberalisation of the telecommunications markets within the EFTA pillar of the EEA.

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 judgement of 26 March 1996 in Case C-392/93: The Queen v. HM Treasury, ex parte British Telecommunications plc.(3), in connection with the interpretation of the same article in an earlier directive(4) and, on the other, on the progress achieved by the EEA EFTA States in implementing the regulations on telecommunications and the tangible results in the EEA EFTA States telecommunications markets of effective application of the measures transposed into national law. Liberalisation has now occurred in the telecommunications sector and effective competition exists in most EEA EFTA States.

In view of the above, the EFTA Surveillance Authority is publishing, for information purposes, the following list of telecommunications services exempted from the scope of the Directive by virtue of Article 8 thereof. The list will be updated according to developments in the conditions of effective competition in the 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 telecommunications liberalisation on the application of procurement rules. Taken together, the EFTA Surveillance Authority 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) The Communication from the Commission pursuant to Article 8 of Directive 93/38/EEC was published in OJ C 156, 3.6.1999 (1999/C 156/03).

(2) Four contracting entities from the EEA EFTA States replied to the EFTA Surveillance Authority's invitation.

(3) [1996] ECR, p. 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).