The Financial Transparency (EC Directive) Regulations 2009

Interpretation

2.—(1) In these Regulations—

“compensation” shall be construed as aid in any form whatsoever, including grant or support in accordance with Article 87 of the Treaty;

“contract” shall be construed as any agreement linking a public authority to a public undertaking in respect of compensation;

“entrusted” shall be construed in accordance with Article 86(2) of the Treaty;

“exclusive right” means any right granted by a public authority to an undertaking through any legislative, regulatory or administrative means, reserving to it the right to provide a service or undertake an activity within a geographical area;

“Financial Transparency Directive” means Commission Directive 2006/111/EC(1) of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings;

“public authority” includes the Crown and any regional, local or other territorial authority;

“public undertaking” means any undertaking over which a public authority may exercise, directly or indirectly, a dominant influence by virtue of its ownership of it, its financial participation in it, or the rules which govern it; a dominant influence is presumed when a public authority, directly or indirectly, in relation to an undertaking—

(a)

holds the major part of the undertaking’s subscribed capital;

(b)

controls the majority of votes attaching to shares issued by the undertaking; or

(c)

can appoint more than half the members of the undertaking’s administrative, managerial or supervisory body;

“public undertaking operating in the manufacturing sector” means any public undertaking which has at least 50% of its total annual turnover arising from operations which are included in Section D of the Annex to Council Regulation (EEC) No 3037/90 of 9 October 1990 on the statistical classification of economic activities in the European Community(2);

“services of general economic interest” shall be construed in accordance with Article 86(2) of the Treaty;

“share” shall be construed in accordance with section 540 of the Companies Act 2006(3);

“special right” means any right that is granted by a public authority through any legislative, regulatory or administrative means, which, within a geographical area and otherwise than in accordance with objective, proportional and non-discriminatory criteria—

(a)

limits to two or more the number of undertakings authorised to provide a service or undertake an activity;

(b)

designates several competing undertakings as being authorised to provide a service or undertake an activity; or

(c)

confers on any undertaking any legal or regulatory advantages which substantially affect the ability of any other undertaking to operate the same activity in the same geographical area under substantially equivalent conditions;

“Treaty” means the Treaty establishing the European Community; and

“undertaking” means any entity engaged in an economic activity, regardless of the legal status of the entity or the way in which it is financed.

(2) These Regulations do not apply where Article 296 of the Treaty applies to a contract.

(1)

Commission Directive 2006/111/EC (OJ L 318 17.11.2006 p.17) consolidated Commission Directive 80/723/EEC of 25 June 1980 (OJ L 195, 29.07.1980, p.35) as amended by Commission Directive 85/413/EEC of 24 July 1985, (OJ L 229, 28.08.1985, p.20.), Commission Directive 93/84/EEC of 30 September 1993 (OJ L 254, 12.10.1993, p.16), Commission Directive 2000/52/EC of 26 July 2000 (OJ L 193, 29.07.2000, p.75) and Commission Directive 2005/81/EC of 28 November 2005 (OJ L 312, 29.11.2005, p.47).

(2)

L293, 24.10.90, p.l, as amended by OJ L 83, 3.4.1993, p.l.

(3)

2006 c.46.