Commission Decision of 7 January 2005 on the detailed rules for the application of the procedure provided for in Article 30 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transport and postal services sectors (notified under document C(2004) 5769) (Text with EEA relevance) (2005/15/EC) (repealed)

1. Section 1 — Identity and status of applicant

Article 30 of Directive 2004/17/EC provides that requests concerning the applicability of Article 30(1) are to be made by the Member States or, when the legislation of the Member State concerned provides for it, by the contracting entities. Depending on the case, the term ‘applicant’ may refer therefore to either the Member State or the contracting entities. It is used merely in the interest of simplification.

1.1. Full name and address of the applicant:

In the event that the activity covered by this request is carried out by undertakings affiliated(1) to the applicant, the term ‘applicant’ will be deemed to refer to both the entity indicated in point 1.1. and the affiliated undertakings in question. Thus, in particular for sections 5 and 6 below, it will be necessary to supply the requisite information for the ‘applicant’ as thus defined.

1.2. Status of the applicant: contracting authority(2) public undertaking(3) or private undertaking?

1.3. For a contracting authority: are you making the request for and on behalf of your Member State?

If so, please supply the information requested for each point in sections 2 to 6 inclusive. With regard to each point in sections 5 and 6 in particular, please provide the requisite information for each of the entities carrying out the activity covered by this request. However, where there are a large number of such entities, the information may be restricted to those entities holding 10 % or more of the geographical market in question(4). Where the information is similar or identical for several entities, they may be grouped together, on condition that this is specified.

1.4. For contracting entities (the contracting authorities, the public undertakings and the private undertakings carrying out one of the activities referred to in Directive 2004/17/EC(5)): Please state the provision of national law stating that contracting entities may submit a request under Article 30.

(1)

Within the meaning of Article 23(1) of Directive 2004/17/EC, affiliated undertaking ‘means any undertaking, the annual accounts of which are consolidated with those of the contracting entity in accordance with the requirements of the Seventh Council Directive 83/349/EEC of 13 June 1983 based on Article 44(2)(g) of the Treaty on consolidated accounts, or, in the case of entities not subject to that Directive, any undertaking over which the contracting entity may exercise, directly or indirectly, a dominant influence within the meaning of Article 2(1)(b) hereof or which may exercise a dominant influence over the contracting entity or which, in common with the contracting entity, is subject to the dominant influence of another undertaking by virtue of ownership, financial participation, or the rules which govern it.’

(2)

According to Article 2(1)(a) of Directive 2004/17/EC, ‘Contracting authorities’ are State, regional or local authorities, bodies governed by public law, associations formed by one or several such authorities or one or several of such bodies governed by public law. ‘A body governed by public law’ means any body:

• established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character,

• having legal personality and financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law.

(3)

According to Article 2(1)(b) of Directive 2004/17/EC, ‘a ‘public undertaking’ is any undertaking over which the contracting authorities may exercise directly or indirectly a dominant influence by virtue of their ownership of it, their financial participation therein, or the rules which govern it.

A dominant influence on the part of the public authorities shall be presumed when these authorities, directly or indirectly, in relation to an undertaking:

• hold the majority of the undertaking's subscribed capital, or

• control the majority of the votes attaching to shares issued by the undertaking, or

• can appoint more than half of the undertaking’s administrative, management or supervisory body.’

(4)

See section 3.

(5)

The relevant activities or sectors may be summed up as follows:

• electricity (production, transmission, distribution); gas (production, transport, distribution); heat (production, transport, distribution); hydrocarbons (exploration and extraction); coal and other solid fuels (exploration and extraction); drinking water (production, transport, distribution); urban transport (bus, underground etc.); railways (transport of persons and goods; making infrastructure available and management/operation of actual transport services); ports (seaports or inland ports, infrastructure to be made available and management/operation; airports (making infrastructure available and management/operation); and postal services. For an exact definition of the activities covered, see Articles 3 to 7 of Directive 2004/17/EC.