The Utilities Contracts Regulations 2016

SUB-SECTION 5 E+W+N.I. Activities directly exposed to competition and related procedural provisions

Activities directly exposed to competition E+W+N.I.

34.—(1) These Regulations do not apply to contracts or design contests intended to enable an activity mentioned in regulations 9 to 15 to be carried out where that activity is directly exposed to competition on markets to which access is not restricted.

(2) For the purposes of paragraph (1), the activity is directly exposed to competition on markets to which access is not restricted only if—

(a) the activity is covered by the following Commission Decisions:—

(i) Commission Decision 2006/211/EC M1 (electricity generation in England, Scotland and Wales);

(ii) Commission Decision 2007/141/EC M2 (supply of electricity and gas in England, Scotland and Wales); and

(iii) Commission Decision 2010/192/EU M3 (exploration for and exploitation of oil and gas in England, Scotland and Wales); or

(b) the procedure specified in regulation 35(1) is followed and regulation 35(2) applies.

(3) The activity referred to in paragraph (1) may form a part of a larger sector or be exercised only in certain parts of the United Kingdom.

Marginal Citations

M1 OJ No L 76, 15.3.2006, p6.

M2 OJ No L 62, 1.3.2007, p23.

M3 OJ No L 84, 31.3.2010, p52.

Procedure for establishing whether regulation 34(2)(b) is applicable E+W+N.I.

35.—(1) The procedure referred to in regulation 34(2)(b) is as follows—

(a) the Minister for the Cabinet Office or a utility submits a request to the Commission, where appropriate together with the position adopted by an independent national authority that is competent in relation to the activity concerned, demonstrating that the activity in question is directly exposed to competition on markets to which access is not restricted on the basis of criteria that are in conformity with the provisions on competition of TFEU which may include—

(i) the characteristics of the products or services concerned;

(ii) the existence of alternative products or services considered to be substitutable on the supply side or demand side;

(iii) the prices; and

(iv) the actual or potential presence of more than one supplier of the products or provider of the services in question;

(b) the request specifies—

(i) all the relevant facts and in particular, any law, regulation, administrative provision or agreement concerning compliance with the condition that the activity is directly exposed to competition on markets to which access is not restricted;

(ii) whether the activity concerned is—

(aa) subject to the EU legislation listed in Annex III to the Utilities Contracts Directive as amended from time to time, and where it is, the relevant implementing legislation applied in the United Kingdom, or

(bb) if free access to a given market cannot be presumed on the basis of subparagraph (aa), it must be demonstrated that access to the market in question is free as a matter of fact and of law;

(2) This paragraph applies if the Commission has—

(i) adopted an implementing act establishing that the activity is directly exposed to competition on markets to which access is not restricted within the periods specified in Annex IV to the Utilities Contracts Directive; or

(ii) subject to paragraph (5), not adopted the implementing act within the period provided for in Annex IV to the Utilities Contracts Directive

(3) The request referred to in paragraph (1) may concern activities which are part of a larger sector or which are exercised in certain parts of the United Kingdom.

(4) After the submission of a request, the Minister for the Cabinet Office or the utility may, with the Commission's agreement, substantially modify its request, in particular as regards the activities or the geographical area concerned.

(5) Where a request has been modified, a new period for the adoption of the implementing act shall be calculated in accordance with paragraph 1 of Annex IV to the Utilities Contracts Directive unless a shorter period is agreed on by the Commission and the Minister for the Cabinet Office or the utility which has submitted the request.