2002/205/EC: Commission Decision of 4 March 2002 following a request by Austria applying for the special regime provided for in Article 3 of Directive 93/38/EEC (Text with EEA relevance) (notified under document number C(2002) 684)
Date: 2002-03-04
Institutions: European Commission
Subjects: Austria, application of EU law, gas, petroleum, petroleum exploration

12.3.2002

EN

Official Journal of the European Communities

L 68/31

COMMISSION DECISION

of 4 March 2002

following a request by Austria applying for the special regime provided for in Article 3 of
Directive 93/38/EEC

(notified under document number C(2002) 684)

(Only the German text is authentic)

(Text with EEA relevance)

(2002/205/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Directive 93/38/EEC of 14 June 1993
coordinating the procurement procedures of entities operating
in the water,
transport and telecommunications
sectors (1), as last amended by Directive 98/4/EC of the Euro-
pean Parliament and of the Council (2), and in particular Article
3(4) thereof,

energy,

Having regard to Directive 94/22/EC of the European Parlia-
ment and of the Council of 30 May 1994 on the conditions for
granting and using authorisations for the prospection, explora-
tion and production of hydrocarbons (3), and in particular
Article 12 thereof,

Having regard to the request submitted by Austria on 6
September 2000,

After consulting the Advisory Committee for Public contracts,

Whereas:

and that, pursuant to its paragraph 2, any Member State
requesting such a decision ensures that entities observe
the principles of non-discrimination and competitive
procurement in awarding contracts and communicate to
the Commission information relating to the award of
such contracts.

Member States, which have complied with the provi-
sions of Directive 94/22/EC, shall be considered to
satisfy the conditions laid down in Article 3(1) of
Directive 93/38/EEC.

By letter dated 6 September 2000 (4), Austria submitted
to the Commission a request pursuant to Article 3 of
Directive 93/38/EEC. That request did not cover the
exploitation of geographical areas for the purpose of
exploring for or extracting coal or other solid fuels.

concessions or

By letter dated 11 December 2000, the Commission
requested Austria to submit the laws, regulations and
administrative provisions necessary for the legal analysis
of the request and to provide information on whether
individual
authorisations had been
granted before the date on which it had implemented
Directive 93/38/EEC and if on that date other entities
were free to seek authorisations for the exploitation of
geographical areas for the purpose of exploring for or
extracting oil, gas, coal or other solid fuels, on a non-
discriminatory basis and in the light of objective criteria;

By letter dated 20 March 2001, Austria sent
the
Commission the relevant documents and answered the
questions raised by the Commission.

By adopting the Berggesetz 1975 (5), replaced as of 1
January 1999 (6) by the Mineralrohstoffgesetz (7), Austria
has complied with Directive 94/22/EC.

(2)

(3)

(4)

(5)

(6)

(1)

Pursuant to Article 3 of Directive 93/38/EEC, a Member
State may request
the Commission 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 that Directive 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

(1) OJ L 199, 9.8.1993, p. 84.
(2) OJ L 101, 1.4.1998, p. 1.
(3) OJ L 164, 30.6.1994, p. 3.

(7) With reference to Article 3(3) of Directive 94/22/EC a
notice was published on 12 September 1995 in the
Official Journal of the European Communities (8) declaring
that the whole territory of Austria is available on a
permanent basis in the sense of the Article provided that
there are no existing prospection, production and
storage contracts relating to hydrocarbons, or existing
mining rights which also include hydrocarbons.

(4) The request was originally based on section 86 of the Bundesverga-

begesetz 1997.
(5) BGBl. 259/1975.
(6) BGBl. I 38/1999.
(7) The provisions concerning the prospection and production of oil
and gas are — as they are of relevance for the present situation —
unchanged in relation to the Berggesetz 1975.

(8) OJ C 237, 12.9.1995, p. 16.

L 68/32

EN

Official Journal of the European Communities

12.3.2002

(8)

level. Section 86 of

The ‘Bundesgesetz 1997 amending the Bundesvergabe-
gesetz 1993’ (1), ( hereinafter the ‘Bundesvergabegesetz
1997’) which entered into force on 1 January 1997,
implemented Directive 93/38/EEC into Austrian law at
the Bundesvergabegesetz
federal
1997 repeats the terms of Article 3(2) of Directive 93/
38/EEC and guarantees compliance with the principles
of non-discrimination and competitive procurement by
entities carrying out exploration or extraction, in partic-
ular as regards the information they make available to
enterprises concerning their intentions with respect to
the award of contracts, and compliance with the obliga-
tion to transmit to the Commission information on the
award of such contracts. It further provides that compli-
ance with Article 3(1) of Directive 93/38/EEC through
the corresponding provisions in Section 86(2)(1 to 5)
Bundesvergabegesetz 1997 is presumed for enterprises
which are granted the right to exploit geographical areas
for the purpose of exploring for or extracting oil or gas
on the basis of Section 68 and following of the Mineral-
rohstoffgesetz.

(9)

On 1 July 1994,
five contracts for the exploration,
production and storage of hydrocarbons existed between
the Republic of Austria and the OMV AG and three such
contracts existed between the Republic of Austria and
the Rohöl-Aufsuchungs AG (RAG), to all of which the
provisions of the Berggesetz 1975 applied.

(10) On the basis of the Allgemeine Berggesetz 1854, limited
authorisations were granted for production of oil and
gas. These authorisations concern mineral raw materials
(mining rights) and were granted before the implementa-
tion of the Bitumengesetz on 31 August 1938 or on the
basis of interim provisions laid down in this law. The
production of oil and gas by the RAG, the Van Sickle
GesmbH and the OMV in the Land Niederösterreich is
based on such authorizations,

HAS ADOPTED THIS DECISION:

Article 1

From 4 March 2002 the exploitation of geographical areas for
the purpose of exploring for or extracting oil or gas shall not
be considered in Austria as an activity defined in Article
2(2)(b)(i) of Directive 93/38/EEC.

Entities carrying on such an activity shall not be considered in
Austria as operating under special or exclusive rights within the
meaning of Article 2(3)(b) of the Directive.

Article 2

1.
This Decision is taken on the basis of the provisions
adopted by Austria as of 4 March 2002 in order to implement
Directive 94/22/EC and Article 3 of Directive 93/38/EEC and
communicated to the Commission.

2.
Austria shall notify to the Commission any laws, regula-
tions or administrative provisions amending the rules referred
to in paragraph 1 as soon as they are adopted in order to
enable it to assess if it is appropriate to amend, withdraw or
maintain this Decision.

Article 3

This Decision is addressed to the Republic of Austria.

Done at Brussels, 4 March 2002.

For the Commission

Frederik BOLKESTEIN

Member of the Commission

(1) BGBl. I 56/1997.