Communication from the Commission pursuant to Article 8 of Directive 93/38/EEC (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 tereof
Date: 1999-05-08
Institutions: European Commission
Subjects: energy production, means of public conveyance, public contract, telecommunications, water supply

8.5.1999

EN

Official Journal of the European Communities

C 129/11

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

(1999/C 129/05)

(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

telecommunications operators; however,

Directive 93/38/EEC is applicable in particular to contracts
awarded by
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)
it would examine
whether this Article could be applied.

the Commission indcated that

of

the European Communities (2),

In a notice published on 2 September 1998 in the Official
the Commission
Journal
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
to Article 8(1)
thereof, on the ground that other entities were free to offer
the
and
substantially under the same conditions (3).

that Directive, pursuant

same geographical

services

in the

same

area

Moreover, in its fourth report on the implementation of the
the Commission
telecommunications regulatory package (4),
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.

Justice of

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
the European
Communities in its judgment of 26 March 1996 in Case
C-392/93 The Queen v. H. M. Treasury, ex parte British Tele-
communications 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 telecommuni-
cations 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.

the above,

the Commission is publishing,

In view of
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 tele-
communications markets in question. The effect of the appli-
cability of Article 8(1)
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.

is

The analysis of
the declarations of exemption from the
contracting entities was based, on the one hand, on the

(1) (cid:145)Public procurement in the European Union(cid:146), 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,
Economic and Social Committee and the Committee of
Regions (COM(1998) 594 of 25 November 1998).

the
the

The categorisation of the services has been done to facilitate
the task of analysing competition and to help industry
understand the practical
the telecommunications
impact of
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 termi-
nology used in Article 1(4)(c)(ii) of that Directive.

(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).

C 129/12

EN

Official Journal of the European Communities

8.5.1999

Categories of services exempted

Geographical areas concerned

Public fixed telephony:

Public mobile telephony:

(cid:151) satellite services

(cid:151) transmission of data/value-added services

(telephone cards, Internet, call-back connection)

Belgium, Denmark, Germany,
Ireland,
Sweden, United Kingdom

Spain,
Italy, Netherlands, Austria,

France,
Finland,

Belgium, Denmark, Germany, Greece,
France,
Portugal, Finland, Sweden, United Kingdom

Spain,
Italy, Netherlands, Austria,

Ireland,

Belgium, Denmark, Germany,
Ireland,
Finland, Sweden, United Kingdom

Italy, Netherlands, Austria,

Spain,

France,
Portugal,

Belgium, Denmark, Germany,
Ireland,
Finland, Sweden, United Kingdom

France,
Italy, Luxembourg, Netherlands, Austria,

Spain,