8.8.2022
EN
Official Journal of the European Union
L 206/43
— electricity produced by wind turbines connected to a grid no later than 31 December 2002; — electricity produced by a brand new wind turbine utilising scrapping certificates issued for the dismantling of wind turbines (additional price supplement); electricity produced by bioenergy (biomass and biogas); — electricity produced by solar photovoltaic panels, waves and hydropower; — electricity produced by other special renewable energy installations (electricity produced from renewable energy sources or technologies of significance for the future expansion of renewable electricity or electricity produced from other renewable energy sources than the ones mentioned); — electricity produced by decentralised heat and power plants and incineration plants; — electricity produced from other heat and power plants intended to supply district heating; — electricity produced from industrial power plants connected to a grid no later than 21 March 2012; — ancillary services.
(4)
Electricity generation and wholesale from conventional and renewable sources constitutes an activity relating to the supply of electricity in accordance with Article 9 of Directive 2014/25/EU.
(5)
In accordance with point 1(a) of Annex IV to Directive 2014/25/EU, given that free access to the market can be presumed on the basis of the first subparagraph of Article 34(3) of that Directive, the Commission is to adopt an Implementing Decision on the request within 90 working days.
(6)
Pursuant to the fourth subparagraph of paragraph 1 to Annex IV of Directive 2014/25/EU, the deadline may be extended by the Commission with the agreement of those having requested the exemption.
Given that additional information was provided by the DCCA on 4 March 2022, the period available to the Commission for deciding on this request is hereby set to 31 July 2022.
2.
LEGAL FRAMEWORK
(7)
Directive 2014/25/EU applies to the award of contracts for the pursuit of activities related to the supply of electricity to fixed networks intended to provide a service to the public in connection with the production, transport or distribution of electricity, unless the activity is exempted pursuant to Article 34 of that Directive.
(8)
Pursuant to Article 34 of Directive 2014/25/EU, contracts intended to enable the performance of an activity to which that Directive applies are not to 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 characteristics of the sector concerned (3).
This assessment is, however, limited by the short deadlines applicable and by the need to rely on the information available to the Commission, which cannot be supplemented by more time-consuming methods, including, in particular, public inquiries addressed to the economic operators concerned (4).
In that context, while the question of whether an activity is directly exposed to competition is to be decided on the basis of criteria that are in conformity with the TFEU provisions on competition, it is not required that those criteria should be exactly the same as those referred to in the provisions of EU competition law (5).
(3) Directive 2014/25/EU, recital 44.
(4) Ibid.
(5) Judgment of 27 April 2016 in Case T-463/14, Österreichische Post AG v.
Commission, EU:T:2016:243, paragraph 28 and recital 44 of Directive 2014/25/EU.