2008/383/EC: Commission Decision of 30 April 2008 exempting express and courier services in Italy from the application of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (notified under document number C(2008) 1642) (Text with EEA relevance)
Date: 2008-04-30
Institutions: European Commission
Subjects: Italy, award of contract, competition, derogation from EU law, postal service, public contract

L 132/18

EN

Official Journal of the European Union

22.5.2008

(Acts adopted under the EC Treaty/Euratom Treaty whose publication is not obligatory)

II

DECISIONS

COMMISSION

COMMISSION DECISION

of 30 April 2008

exempting express and courier services in Italy from the application of Directive 2004/17/EC of the
European Parliament and of the Council coordinating the procurement procedures of entities
operating in the water, energy, transport and postal services sectors

(notified under document number C(2008) 1642)

(Only the Italian text is authentic)

(Text with EEA relevance)

(2008/383/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

was transmitted by the Italian authorities by e-mail of
20 February 2008.

Having regard to the Treaty
Community,

establishing the European

Having regard to Directive 2004/17/EC of
the European
Parliament and of the Council of 31 March 2004 coordinating
the procurement procedures of entities operating in the water,
energy, transport and postal services sectors (1), and in particular
Article 30(4) and (6) thereof,

Having regard to the request submitted by Italy by e-mail of
17 January 2008,

After consulting the Advisory Committee for Public Contracts,

Whereas:

I. FACTS

(1)

On 17 January 2008, Italy transmitted a request pursuant
to Article 30(4) of Directive 2004/17/EC to the
Commission by e-mail. The Commission requested addi-
tional information by e-mail of 6 February 2008, which

(1) OJ L 134, 30.4.2004, p. 1. Directive as

last amended by
Commission Regulation (EC) No 213/2008 (OJ L 74, 15.3.2008,
p. 1).

(2)

(3)

(4)

The request submitted by Italy on behalf of Gruppo Poste
Italiane SpA (hereinafter referred to as ‘Poste Italiane’)
concerns express and courier services, domestic and
international, in Italy.

The request is accompanied by the conclusions of the
independent national authority, Autorità Garante della
Concorrenza e del Mercato (the Italian Competition
Authority), that the conditions for the applicability of
Article 30(1) of Directive 2004/17/EC would be met.

II. LEGAL FRAMEWORK

Article 30 of Directive 2004/17/EC provides
that
contracts intended to enable the performance of one of
the activities to which Directive 2004/17/EC applies shall
not be subject to that Directive if, in the Member State in
which it is carried out, the activity is directly exposed to
competition on markets to which access is not restricted.
Direct exposure to competition is assessed on the basis
of objective criteria, taking account of the specific charac-
teristics of the sector concerned. Access is deemed to be
unrestricted if the Member State has implemented and
applied the relevant Community legislation opening a
given sector or a part of it.

22.5.2008

EN

Official Journal of the European Union

L 132/19

(5)

(6)

(7)

(8)

(9)

Italy has

the European Parliament and of

implemented and applied Directive
Since
97/67/EC of
the
Council of 15 December 1997 on common rules for
the development of the internal market of Community
services and the improvement of quality of
postal
service (1), access to the market should be deemed not
to be restricted in accordance with the first subparagraph
of Article 30(3) of Directive 2004/17/EC.

Direct exposure to competition in a particular market
should be evaluated on the basis of various criteria,
none of which are, per se, decisive.
In respect of the
markets concerned by this decision, the market share
the main players constitutes one criterion which
of
should be taken into account. Another criterion is the
degree of concentration.

This Decision is without prejudice to the application of
the rules on competition.

(10)

(11)

III. ASSESSMENT

(12)

a

public

enterprise within the meaning

of
As
Article 2(1)(b) of Directive 2004/17/EC exercising
several of the activities mentioned in Article 6 of that
Directive, Poste Italiane, on whose behalf the request has
been introduced, is a contracting entity for the purposes
of Directive 2004/17/EC. According to the available
information,
it would seem to be the sole contracting
entity operating in the markets concerned by this
decision.

A number of companies are active in the provision of
courier and express services in Italy, both for domestic as
well as for international services. Whether seen alone or
together with its wholly owned subsidiary, SDA Express
Courier (SDA), Poste Italiane does not have the biggest
market share in respect of either domestic or interna-
tional express and courier services. In fact, for domestic
express and courier services,
its market share in 2006
amounted to 5,2 % (15,4 % including the 10,2 % share
of SDA) and the aggregate market shares of
its two
largest competitors on this market amounted to 43,5 %
in 2006. In respect of international express and courier
services, Poste Italiane had a market share in 2006 of
2,7 % (3,4 % including the 0,7 % share of SDA) whereas
the aggregate market shares of its two largest competitors
in 2006 amounted to 61,7 %. These factors should

therefore be taken as an indication of direct exposure
to
services,
domestic and international.

competition

express

courier

and

of

IV. CONCLUSIONS

In view of the factors examined in recitals (8) and (9), the
condition of direct exposure to competition laid down in
Article 30(1) of Directive 2004/17/EC should be
considered to be met in Italy in respect of express and
courier services, domestic and international.

Since the condition of unrestricted access to the market
is deemed to be met, Directive 2004/17/EC should not
apply when contracting entities award contracts intended
to enable express and courier services, domestic and
international,
in Italy, nor when
design contests are organised for the pursuit of such an
activity in Italy.

to be carried out

This Decision is based on the legal and factual situation
as of January to February 2008 as it appears from the
information submitted by the Italian Republic. It may be
revised, should significant changes in the legal or factual
situation mean that the conditions for the applicability of
Article 30(1) of Directive 2004/17/EC are no longer met,

HAS ADOPTED THIS DECISION:

Article 1

Directive 2004/17/EC shall not apply to contracts awarded by
contracting entities and intended to enable express and courier
services, domestic and international, to be carried out in Italy.

Article 2

This Decision is addressed to the Italian Republic.

Done at Brussels, 30 April 2008.

For the Commission

Charlie McCREEVY
Member of the Commission

(1) OJ L 15, 21.1.1998, p. 14. Directive as last amended by Directive

2008/6/EC (OJ L 52, 27.2.2008, p. 3).