Commission Implementing Decision
of 22 May 2014
exempting certain services in the postal sector in Hungary from the application of Directive 2014/25/EU of the European Parliament and of the Council on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC
(notified under document C(2014) 3372)
(Only the Hungarian text is authentic)
(Text with EEA relevance)
(2014/299/EU)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Whereas:
- (a)
services related to unaddressed advertising publications;
- (b)
services related to distribution of subscribed newspapers and periodical publications.
Hungary has implemented and applied Directive 97/67/EC. None of the services concerned by the present request were reserved at the time of the request. As Hungary has reached the level of market opening provided for under the legislation listed in Annex III to Directive 2014/25/EU, access to the market should be deemed not to be restricted in accordance with Article 34(3) of that Directive.
Direct exposure to competition in a particular market is evaluated on the basis of various criteria, none of which are, per se, decisive. In respect of the markets to which the request of Magyar Posta relates, the market share of the main players on a given market constitutes one criterion which should be taken into account. Another criterion could be the degree of concentration in those markets. As the conditions vary for the different activities that are concerned by the request, the examination of the competitive situation should take into account the different situations in different markets.
It should be kept in mind that the aim of this assessment is to establish whether the services concerned by the request are exposed to such a level of competition (in markets to which access is not restricted within the meaning of Article 34 of Directive 2014/25/EU) that this will ensure that, also in the absence of the discipline brought about by the detailed procurement rules set out in Directive 2014/25/EU, procurement for the pursuit of the activities concerned will be carried out in a transparent, non-discriminatory manner based on criteria allowing purchasers to identify the solution which overall is the economically most advantageous one.
Given that there are no indications of a wider or smaller geographical scope of the market, for the purposes of evaluating whether the conditions laid down in Article 34(1) of Directive 2014/25/EU are fulfilled, and without prejudice to competition law, the relevant geographic market is considered to be the territory of Hungary.
Unaddressed advertising mail is characterised by the absence of particular destination address identifying the final addressee individually. It is unsolicited advertising mail, which fulfils certain criteria such as: uniform weight, format, contents and layout for distribution to a group of recipients.
Magyar Posta's services related to unaddressed advertising publication cover the following categories: domestic unaddressed advertising publication services (i.e. flyers, leaflets, etc.), domestic unaddressed election literature and distribution of free press. Magyar Posta considers that distribution of free press belongs to this product market given the fact that distribution of free press is contracted and distributed in the same way as the other types of unaddressed advertising.
The applicant defines the relevant product market as the market for services for unaddressed advertising publications (i.e. printed unaddressed advertising publications delivered to the letterbox).
Based on the information listed in recitals 11 to 15, for the purposes of the assessment of the request and without prejudice to competition law, the relevant product market is defined as services for distribution of unaddressed advertising publication provided by postal operators.
Newspaper and periodical distribution is a service whose aim is to ensure that the publication reaches the final consumer in due time. Distribution of addressed newspapers and periodicals requires an extensive network with appropriate staff, logistics equipment and a transport fleet.
The distribution of addressed newspapers and periodical publications provided by Magyar Posta contains several activities, as follows: […].
In the distribution of addressed newspapers and periodicals, daily newspapers have special characteristics compared to other addressed publications (magazines) given that daily newspapers need to be delivered early every morning. This presumes collecting them from the publishers during the night and rapid transport in the early hours to delivery points.
Nationwide distribution is currently performed, by MédiaLOG Logisztikai Zrt. (hereinafter referred to as MédiaLOG) and by Magyar Posta. At regional and county level there are a number of distributors which are active in different regions and whose combined capacities cover the whole country with the exception of Budapest and Pest counties.
Based on the information listed in recitals 20 to 26, for the purposes of this Decision and without prejudice to competition law, the relevant product markets are defined as follows: the market for early delivery time distribution of addressed newspapers and the market for standard delivery time distribution of addressed newspapers and publications.
Until 2012, MédiaLOG was the only national distributor and distributed not only the newspapers of publishers belonging to the owners of MédiaLOG but also national newspapers of publishers without a distribution network. Since Magyar Posta entered into this market, a publisher without a distribution network would have the possibility of choice between two national distributors. […].
For the purposes of this Decision and without prejudice to competition law, the factors listed in recitals 28 to 31 should be taken as an indication of exposure to competition, of this activity in Hungary. Consequently, since the conditions set out in Article 34(1) of Directive 2014/25/EU are met, it should be established that Directive 2014/25/EU does not apply to contracts intended to enable the pursuit of this activity in Hungary.
As regards market entry the Commission notes that there were no entries in the market concerned over the last 5 years, and it is not aware of any potential entry in the near future.
The applicant did not provide conclusive evidence of existing competitive pressure on its activities, which would challenge its increasing dominant position in this market.
For the purposes of this Decision and without prejudice to competition law, in view of the factors listed in recitals 33 to 38, it cannot be concluded that the category of services in question is directly exposed to competition in Hungary. Consequently, since the conditions set out in Article 34(1) of Directive 2014/25/EU are not met, it should be established that the provisions of Directive 2014/25/EU shall continue to apply to contracts intended to enable the pursuit of standard time delivery distribution of addressed newspapers and publications in Hungary.
- (a)
services related to distribution of unaddressed advertising publications provided by postal operators;
- (b)
postal services for early delivery time distribution of addressed newspapers.
Since the condition of unrestricted access to the market is deemed to be met, Directive 2014/25/EU should not apply when contracting entities award contracts intended to enable the services listed in points (a) and (b) of recital 40 to be carried out in Hungary nor when design contests are organised for the pursuit of such an activity in that country.
This Decision is based on the legal and factual situation as of November 2013 to March 2014 as it appears from the information submitted by Magyar Posta and the Hungarian authorities. It may be revised, should the conditions for the applicability of Article 34(1) of Directive 2014/25/EU be no longer met, following significant changes in the legal or factual situation.
Nevertheless, the condition of direct exposure to competition laid down in Article 34(1) of Directive 2014/25/EU should be considered not to be met with respect to postal services for standard delivery time distribution of addressed newspapers and publications, on the territory of Hungary.
Since some services subject to this request continue to be subject to Directive 2014/25/EU, it is recalled that procurement contracts covering several activities should be treated in accordance with Article 5 of Directive 2014/25/EU. This means that, where a contracting entity is engaged in ‘mixed’ procurement, that is procurement used to support the performance of both, activities exempted from the application of Directive 2014/25/EU and activities not exempted, regard must be had to the activities for which the contract is principally intended. In the event of such mixed procurement, where the purpose is principally to support activities which were not exempted, the provisions of Directive 2014/25/EU are to be applied. Where it is objectively impossible to determine for which activity the contract is principally intended, the contract is to be awarded in accordance with Article 5(5) of Directive 2014/25/EU.
The measures provided for in this Decision are in accordance with the opinion of the Advisory Committee for Public Contracts,
HAS ADOPTED THIS DECISION: