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transport and postal services sectors (notified under document C(2004) 5769) (Text with EEA relevance) (2005/15/EC) (repealed)

5. Section 5 — Information concerning the relevant market and access to that market

This section must be completed irrespective of the reply to point 4.1. above.

5.1. Please give the reasons why you consider that access to the relevant market is not restricted.

5.2. For each relevant market, for each of the last three financial years(1), and for each of the following territories:

(a)

the EEA territory;

(b)

the Community as a whole;

(c)

the territory of the EFTA States as a whole;

(d)

each Member State and each EFTA State where the applicant carries out an activity; and

(e)

the relevant geographical market(2), if the applicant considers that this market is different,

please provide the information referred to in points 5.2.1. to 5.2.9.:

5.2.1. an estimate of the total size of the market in terms of sales value (in euro) and volume (units)(3), indicating the basis for the calculations and sources used and providing documents, where available, to confirm these calculations;

5.2.2. the sales in value and volume, as well as an estimate of the market share held by the applicant;

5.2.3. an estimate of the market share in value (and, where appropriate, volume) of all competitors (including importers) having at least 10 % of the geographical market under consideration. Provide documents, where available, to confirm the calculation of these market shares and provide the name, address, telephone number, fax number and appropriate contact person, of these competitors;

5.2.4. an estimate of the total value, volume and source of imports from outside the EEA territory and identify:

(a)

the share of such imports attributable to the applicant;

(b)

an estimate of the extent to which any quotas, tariffs and non-tariff barriers to trade constitute barriers to these imports; and

(c)

an estimate of the extent to which transportation and other costs affect these imports;

5.2.5. the extent to which trade between States within the territory of the EEA is hindered by:

(a)

transportation and other costs; and

(b)

other non-tariff barriers to trade;

5.2.6. the manner in which the applicant produces and sells the products or services; for example, whether they are manufactured locally, or are sold through local distribution networks;

5.2.7. a comparison of the applicant’s price levels in each Member State and EFTA State and a similar comparison of price levels between the Community, the EFTA States and other areas where these products are produced (for example, Eastern Europe, the United States of America, Japan, or any other relevant area);

5.2.8. The nature and extent of the vertical integration of the applicant compared with the largest competitors;

5.2.9. specify any assets or infrastructure used jointly with other entities or used to carry out more than one activity covered by Directive 2004/17/EC. Where the use of such assets or infrastructures is subject to special conditions, such as universal service obligations or special rights, please specify.

5.3. Please provide the following information:

5.3.1. Over the last five years, has there been any significant entry to the geographical market(s) for the relevant products(2)? If the answer is ‘yes’, where possible provide the name, address, telephone number and fax number of the undertaking concerned, as well as the appropriate contact person, and an estimate of their current market share.

5.3.2. In the opinion of the applicant are there any undertakings (including those at present operating only in markets outside the Community or outside the EEA) that could enter the market? If the answer is ‘yes’, please explain why and identify such undertakings by name, address, telephone number, fax number and appropriate contact person, and give an estimate of the time within which such market entry is likely to occur.

5.3.3. Describe the various factors influencing entry into the relevant markets in this case, from both a geographical and product viewpoint. In so doing, take account of the following, where appropriate:

(a)

the total costs of entry (research and development, distribution systems necessary, promotion, advertising, after-sales service, etc.) on an equivalent scale to that of a significant viable competitor, indicating the market share of such a competitor;

(b)

any legal or regulatory barriers to entry, such as government authorisation or the existence of any standards;

(c)

any restrictions created by the existence of patents, know-how and other intellectual property rights in these markets and any restrictions created by the licensing of such rights;

(d)

the extent to which the applicant is a licensee or licensor of patents, know-how and other rights in the relevant markets;

(e)

the importance of economies of scale for the production of products in the relevant markets;

(f)

access to sources of supply, such as availability of raw materials.

Research and development

5.3.4. Give an account of the importance of research and development in the ability of an undertaking operating in the relevant market(s) to compete in the long term. Explain the nature of the research and development carried out by the applicant in the relevant markets.

In so doing, take account of the following, where appropriate:

(a)

trends and intensity of research and development(4) in these markets and for the applicant;

(b)

technological developments in these markets over an appropriate time period (in particular developments in products and/or services, production processes, distribution systems, and so on);

(c)

the major innovations that have been made in these markets and the undertakings responsible for these innovations;

(d)

the cycle of innovation in these markets and where the parties are in this cycle of innovation.

Cooperation agreements

5.3.5. To what extent do cooperation agreements (horizontal or vertical) exist in the relevant markets?

5.3.6. Give details of the most important cooperation agreements concluded by the applicant in the relevant markets, such as research and development, licensing, joint production, specialisation, distribution, long-term supply and exchange of information agreements.

(1)

The information requested under headings 5.2.1. and 5.2.2. below should be supplied for all the territories referred to in points (a), (b), (c), (d) and (e).

(2)

See section 3.

(3)

The value and volume of a market should reflect production, plus imports, less exports for the geographical areas in question.

(4)

Research and development intensity is defined as research and development expenditure as a proportion of turnover.