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The Utilities Contracts (Scotland) Regulations 2016

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Utilities

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4.—(1) For the purpose of these Regulations, a utility is a person which—

(a)is a contracting authority or public undertaking and which pursues one of the activities referred to in regulations 8 to 14;

(b)is not a contracting authority or public undertaking but whose activities include an activity referred to in regulations 8 to 14 which operate on the basis of special or exclusive rights granted by a competent authority.

(2) In this regulation, “public undertaking” means a person over which one or more contracting authorities are able to exercise, directly or indirectly, a dominant influence by virtue of one or more of the following—

(a)their ownership of that person;

(b)their financial participation in that person;

(c)the rights accorded to them by the rules which govern that person.

(3) For the purposes of paragraph (2), a contracting authority is considered to be able to exercise a dominant influence over a person in any one or more of the following cases where it, directly or indirectly—

(a)possesses the majority of the undertaking’s subscribed capital;

(b)controls the majority of the voting power attached to the issued share capital of that person;

(c)can appoint—

(i)more than half of the individuals who are ultimately responsible for managing that person’s affairs;

(ii)more than half of its members; or

(iii)in the case of a group of individuals, more than half of those individuals.

(4) In this regulation, “special or exclusive rights” mean rights granted by a competent authority by way of any legislative, regulatory or administrative provision, the effect of which is to limit the exercise of activities specified in regulations 8 to 14 to one or more entities, and which substantially affects the ability of other entities to carry out such activity.

(5) For the purposes of paragraph (4), rights do not constitute “special or exclusive rights” if they are granted by means of a procedure in which—

(a)there was adequate publicity; and

(b)the granting of those rights was based on objective criteria.

(6) The procedures referred to in paragraph (5) include—

(a)procurement with a prior call for competition in accordance with—

(i)these Regulations or the Utilities Contracts (Scotland) Regulations 2012(1);

(ii)the Public Contracts (Scotland) Regulations or the Public Contracts (Scotland) Regulations 2012(2);

(iii)the Concession Contracts Directive; or

(iv)the Defence and Security Regulations; and

(b)procedures in accordance with other legal acts of the EU as mentioned in Annex II of the Utilities Contracts Directive, as amended from time to time.

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