Gelex

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)

In forceVersion 2005-01-07
Grade B

mapped from publisher markup. A grade says how a document's structure was obtained, not how reliable the law is.

Ask Gelex about this law

Address https://gelex.eu/eli/EU/decision/2005/15@2005-01-07/en

Contents
  1. Preamble
    1. Article 1
    2. Article 2
    3. Article 3
  3. ANNEX
  4. ANNEX I Information to be provided in requests concerning the applicability of Article 30(1) of Directive 2004/17/EC
  5. 5.
  6. grp_2
  7. grp_4
  8. grp_5
  9. grp_3
  10. grp_3
  11. 6.
  12. grp_1 General conditions on the relevant market 6.1.1.
  13. ANNEX II Model notices concerning a request pursuant to Article 30 of Directive 2004/17/EC
  14. A.
  15. B.
  16. ANNEX III Model notices concerning a request pursuant to Article 30 of Directive 2004/17/EC — Extension of the period
  17. A.
  18. B.
  19. ANNEX IV Model notices concerning a request pursuant to Article 30 of Directive 2004/17/EC — Applicability of Article 30(1), in the absence of any decision within the period laid down
  20. A.
  21. B.

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, and in particular Article 30(6) thereof,

Whereas:

(1) In order to ensure legal certainty, notices should be published in the Official Journal of the European Union concerning the opening of a procedure under Article 30 of Directive 2004/17/EC, the extension of the period allowed to the Commission and the applicability of Article 30(1) on expiry of that period. It is also necessary to stipulate the information to be contained in such notices.

(2) In view of the strict time-limits laid down for the conduct of the procedure under Article 30 of Directive 2004/17/EC, it is necessary to provide that requests concerning the applicability of Article 30(1) must include information which is useful and relevant to the evaluation of the request. To this end, a list should be drawn up of the information to be contained in such requests and of other practical procedures relating to them. The conditions laid down in Article 30(1) are to be evaluated solely for the purposes of Directive 2004/17/EC and must be without prejudice to the application of the rules on competition.

(3) The measures provided for in this Decision are in accordance with the opinion of the Advisory Committee for Public Contracts,

HAS ADOPTED THIS DECISION:

Article 1

1. Requests concerning the applicability of Article 30(1) of Directive 2004/17/EC must contain at least the information stipulated in Annex I to this Decision.

2. When an independent authority that is competent in the activity concerned has adopted a reasoned position on matters which are relevant for the purposes of Article 30(1) and (2) of Directive 2004/17/EC, this position shall accompany the requests.

3. The requests and the positions referred to in paragraphs 1 and 2 shall be sent by electronic means to the following e-mail address: Markt-C3@cec.eu.int. If transmission by electronic means is not possible, these requests and positions shall be sent in triplicate to the following address: European Commission Directorate-General for Internal Market and Services Directorate for Public Procurement Policy B-1049 Brussels

Article 2

1. When the Commission receives a request concerning the applicability of Article 30(1) of Directive 2004/17/EC, it shall publish a notice containing the information stipulated in Part A or Part B of Annex II to this Decision, depending on the origin of the request.

2. If, in the cases provided for in the second and third sentences of the first subparagraph of Article 30(6) of Directive 2004/17/EC, the period allowed to the Commission to take a decision on the request is extended, the Commission shall publish a notice containing the information stipulated in Part A or Part B of Annex III to this Decision, depending on the origin of the request.

3. The applicability of Article 30(1) of Directive 2004/17/EC, in accordance with the second or third subparagraphs of Article 30(4) or in accordance with the fourth subparagraph of Article 30(5) of the said Directive, shall be the subject of a notice published by the Commission containing the information stipulated in Part A or Part B of Annex IV to this Decision, depending on the origin of the request.

4. The notices provided for in paragraphs 1, 2 and 3 shall be published in the Official Journal of the European Union, C series.

Article 3

This Decision is addressed to the Member States.

Done at Brussels, 7 January 2005. For the Commission Charlie McCreevy Member of the Commission

ANNEX

ANNEX I Information to be provided in requests concerning the applicability of Article 30(1) of Directive 2004/17/EC

1. Section 1 — Identity and status of applicant Article 30 of Directive 2004/17/EC provides that requests concerning the applicability of Article 30(1) are to be made by the Member States or, when the legislation of the Member State concerned provides for it, by the contracting entities. Depending on the case, the term applicant may refer therefore to either the Member State or the contracting entities. It is used merely in the interest of simplification.

1.1. Full name and address of the applicant: In the event that the activity covered by this request is carried out by undertakings affiliated to the applicant, the term applicant will be deemed to refer to both the entity indicated in point 1.1. and the affiliated undertakings in question. Thus, in particular for sections 5 and 6 below, it will be necessary to supply the requisite information for the applicant as thus defined.

1.2. Status of the applicant: contracting authority public undertaking or private undertaking?

1.3. For a contracting authority: are you making the request for and on behalf of your Member State? If so, please supply the information requested for each point in sections 2 to 6 inclusive. With regard to each point in sections 5 and 6 in particular, please provide the requisite information for each of the entities carrying out the activity covered by this request. However, where there are a large number of such entities, the information may be restricted to those entities holding 10 % or more of the geographical market in question. Where the information is similar or identical for several entities, they may be grouped together, on condition that this is specified.

1.4. For contracting entities (the contracting authorities, the public undertakings and the private undertakings carrying out one of the activities referred to in Directive 2004/17/EC): Please state the provision of national law stating that contracting entities may submit a request under Article 30.

2. Section 2 — Description of the activity covered by this request

2.1. Describe the activity to which the conditions of Article 30(1) apply in your view.

2.2. Where this differs from the national territory as a whole, indicate the area in which the activity covered by this request is carried out. Mention only the area in which you consider that the conditions of Article 30(1) are met.

3. Section 3 — The relevant market A relevant product market comprises all those products and/or services which are regarded as interchangeable or substitutable by the consumer, by reason of their characteristics, their prices and their intended use. The following factors are normally considered to be relevant to the determination of the relevant product market and should be taken into account in the analysis: The relevant geographical market comprises the area in which the entities concerned are involved in the supply of products or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring areas because, in particular, conditions of competition are appreciably different in those areas. Factors relevant to the assessment of the relevant geographical market include:

the degree of physical similarity between the relevant products and/or services,

any differences in the end use to which the products are put,

differences in price between two products,

the cost of switching from one product to another, in the case of two potentially competing products,

established or entrenched consumer preferences for one type or category of product,

product classifications (classifications maintained by trade associations, etc.).

the nature and characteristics of the products or services concerned,

the existence of barriers to entry,

consumer preferences,

appreciable differences in market shares or substantial price differences between neighbouring areas,

transport costs.

3.1. In the light of the above, please explain the definition of the relevant product market or markets that, in your opinion, should form the basis of the Commission’s analysis. In your reply, please give reasons for assumptions or conclusions, and explain how the factors outlined above have been taken into account. In particular, please state the specific products or services directly or indirectly affected by this request and identify the categories of products considered as substitutable in your market definition. In the questions below, this (or these) definition(s) is (are) referred to as the relevant product market(s).

3.2. Please explain the definition of the relevant geographical market or markets that in your opinion should form the basis of the Commission's analysis. In your reply, please give reasons for assumptions or conclusions, and explain how the factors outlined above have been taken into account. In particular, please specify the geographical area in which the entity or entities concerned by this request are active in the relevant product market(s), and if you consider the relevant geographical market to be wider than a single Member State, give the reasons for this. In the questions below, this (or these) definition(s) is (are) referred to as the relevant geographical market(s).

4. Section 4 — Applicability of the legislative acts referred to in Annex XI to Directive 2004/17/EC.

4.1. Is the activity covered by this request subject to one of the legislative acts referred to in Annex XI to Directive 2004/17/EC? If so, indicate the act or acts of national law transposing the Community legislation concerned.

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, and for each of the following territories: please provide the information referred to in points 5.2.1. to 5.2.9.:

5.

grp_2

(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, if the applicant considers that this market is different,

5.2.1. an estimate of the total size of the market in terms of sales value (in euro) and volume (units), 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:

grp_4

(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:

grp_5

(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? 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:

grp_3
grp_3

(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 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 5.3.5.5.3.6.

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

6. Section 6 — Exposure to competition According to Article 30(2) of Directive 2004/17/EC, the question of whether an activity is directly exposed to competition must be decided on the basis of criteria that are in conformity with the Treaty provisions on competition, such as the characteristics of the goods or services concerned, the existence of alternative goods or services, the prices, and the actual or potential presence of more than one supplier of the goods or services in question.

6.1. Explain why you consider that the activity covered by this request is fully exposed to competition in the relevant product market on the relevant geographical market(s). In particular, give the following information:

6.

grp_1 General conditions on the relevant market 6.1.1.

Identify the five largest independent suppliers to the applicant and their individual shares of the applicant’s purchases (of raw materials or goods used to produce the relevant products). Provide the name, address, telephone number, fax number and appropriate contact person, of these suppliers. Please also identify the undertakings affiliated to the applicant and their individual shares of the applicant’s purchases (of raw materials or goods used to produce the relevant products). Provide the name, address, telephone number, fax number and appropriate contact person, of these undertakings.

Structure of supply in the relevant markets 6.1.2.6.1.3.6.1.4.

Describe the distribution channels and after-sales service networks that exist in the relevant markets. In doing so, take account of the following, where appropriate: Where appropriate, provide an estimate of the total Community-wide and EFTA-wide capacity for the last three years. During this period, what was the capacity of the applicant and what was the rate of its capacity utilisation? Please indicate any other supply-side considerations you consider to be relevant.

Structure of supply in the relevant markets 6.1.2.

(a) the existing distribution systems and their importance in these markets. To what extent is distribution performed by third parties or by undertakings affiliated to the applicant?

(b) the existing after-sales service networks (for example, maintenance and repair) and their importance in these markets. To what extent are these services performed by third parties or by undertakings affiliated to the applicant?

Structure of demand in the relevant markets 6.1.5.6.1.6.6.1.7.

Identify the five largest independent customers of the applicant in the relevant market and their individual shares of total sales of the relevant products by the applicant. Provide the name, address, telephone number, fax number and appropriate contact person, of each of these customers. Explain the structure of demand in terms of: Provide estimates of the degree of consumer activity in terms of switching supplier and renegotiating contracts in the last five years. Also give the sources used for this and, where available, the necessary documents to confirm the estimates.

Structure of demand in the relevant markets 6.1.5.6.1.6.

(a) the different phases of the markets, for example, take-off, expansion, maturity and decline, and a forecast of the growth rate of demand;

(b) the importance of customer preferences, in terms of brand loyalty, product differentiation and the provision of a full range of products;

(c) the degree of concentration or dispersion of demand;

(d) segmentation of customers into different groups with a description of the typical customer of each group;

(e) the importance of exclusive distribution contracts and other types of long-term contracts;

(f) the extent to which contracting authorities, State undertakings or similar bodies are important as a source of demand.

ANNEX II Model notices concerning a request pursuant to Article 30 of Directive 2004/17/EC

A.

Request from a Member State On (…) the Commission received a request pursuant to Article 30(4) of Directive 2004/17/EC of the European Parliament and of the Council. The first working day following receipt of the request is (…). This request, from (name of the Member State concerned), concerns (brief mention of the relevant sector or activity) in that country. The abovementioned Article 30 provides that Directive 2004/17/EC is not applicable when the activity in question is directly exposed to competition on markets to which access is not restricted. These conditions are evaluated solely for the purposes of Directive 2004/17/EC and are without prejudice to the application of competition rules. The Commission is allowed a period of three months to take a decision on this request, commencing on the working day referred to above. The period therefore expires on (…). The provisions of the third subparagraph of the abovementioned paragraph 4 are/are not applicable Consequently, the period allowed to the Commission may be extended by one month/three months. Any such extension must be published.

B.

Request from a contracting entity On (…) the Commission received a request pursuant to Article 30(5) of Directive 2004/17/EC. The first working day following receipt of the request is (…). This request, from (name of the relevant contracting entity) concerns (brief mention of the relevant sector or activity) in (indicate the Member State concerned). The abovementioned Article 30 provides that Directive 2004/17/EC is not applicable when the activity in question is directly exposed to competition on markets to which access is not restricted. These conditions are evaluated solely for the purposes of Directive 2004/17/EC and are without prejudice to the application of competition rules. The Commission is allowed a period of three months to take a decision on this request, commencing on the working day referred to above. The period therefore expires on (…). This period may be extended by three months. Any such extension must be published. According to the second subparagraph of Article 30(6), further requests concerning (brief mention of the relevant sector or activity) in (indicate the Member State concerned) before the expiry of the period opened in respect of this request are not considered as new procedures and are to be treated in the context of this request.

ANNEX III Model notices concerning a request pursuant to Article 30 of Directive 2004/17/EC — Extension of the period

A.

Request from a Member State On (…) the Commission received a request pursuant to Article 30(4) of Directive 2004/17/EC of the European Parliament and of the Council. This request, from (name of the Member State concerned) concerns (brief mention of the relevant sector or activity) in that country. The request was the subject of a notice in OJ C (…). The initial period expires on (…). Given that (brief justification for the extension) and in compliance with the provisions laid down in the second/third sentence of Article 30(6), the period allowed to the Commission to take a decision on this request is extended by three months/one month. The final period therefore expires on (…).

B.

Request from a contracting entity On (…) the Commission received a request pursuant to Article 30(5) of Directive 2004/17/EC. This request, from (name of the contracting entity concerned) concerns (brief mention of the relevant sector or activity) in (indicate the Member State concerned). The request was the subject of a notice in OJ C (…). The initial period expires on (…). Given that (brief justification for the extension) and in compliance with the provisions laid down in the second sentence of Article 30(6), the period allowed to the Commission to take a decision on this request is extended by three months. The final period therefore expires on (…).

ANNEX IV Model notices concerning a request pursuant to Article 30 of Directive 2004/17/EC — Applicability of Article 30(1), in the absence of any decision within the period laid down

A.

Request from a Member State On (…) the Commission received a request pursuant to Article 30(4) of Directive 2004/17/EC of the European Parliament and of the Council. This request, from (name of the Member State concerned) concerns (brief mention of the relevant sector or activity) in that country. The request was the subject of a notice in OJ C (…). (The initial period was extended, see the notice in OJ C (…)). Since the period for adoption of a decision expired on (…) without the adoption of a decision, Article 30(1) is deemed to apply. Consequently, the provisions of Directive 2004/17/EC do not apply to contracts intended to enable the activity of (brief mention of the relevant sector or activity) to be carried out in (indicate the Member State concerned).

B.

Request from a contracting entity On (…) the Commission received a request pursuant to Article 30(5) of Directive 2004/17/EC. This request, from (name of the relevant contracting entity) concerns (brief mention of the relevant sector or activity) in (specify the Member State concerned). The request was the subject of a notice in OJ C (…). (The initial period was extended, see the notice in OJ C (…)). Since the period for adoption of a decision expired on (…) without the adoption of a decision, Article 30(1) is deemed to apply. Consequently, the provisions of Directive 2004/17/EC do not apply to contracts intended to enable the activity of (brief mention of the relevant sector or activity) to be carried out in (specify the Member State concerned).

Versions

  1. 2005-01-07

Cited by

  • Definitive adoption (EU, Euratom) 2016/150 of the European Union’s general budget for the financial year 2016 Act · Grade B
    The amount of assigned revenue in accordance with Article 21(3) of the Financial Regulation is estimated at EUR 20000. Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ 17, 6.10.1958, p. 385/58). Council Decision of 15 September 1958 creating the Official Journal of the European Communities (OJ 17, 6.10.1958, p. 390/58). Council Regulation (EEC) No 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG) (OJ L 199, 31.7.1985, p. 1). Council Directive 89/665/EEC of 21 December 1989 on the coordination of the law
  • Definitive adoption of amending budget No 6 of the European Union for the financial year 2012 (2013/83/EU, Euratom) Act · Grade B
    The amount of assigned revenue pursuant to Article 18(1)(e) to (j) of the Financial Regulation is estimated at EUR 420000. Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ 17, 6.10.1958, p. 385/58). Council Decision of 15 September 1958 to create the Official Journal of the European Communities (OJ 17, 6.10.1958, p. 390/58). Council Regulation (EEC) No 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG) (OJ L 199, 31.7.1985, p. 1). Council Directive 89/665/EEC of 21 December 1989 on the coordination of th
  • Commission Implementing Decision (EU) 2016/1804 of 10 October 2016 on the detailed rules for the application of Articles 34 and 35 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 (notified under document C(2016) 6351) (Text with EEA relevance) Decision · Grade B
    With regard in particular to the information to be requested and the wording of notices, this Decision draws on the experience gained through the application of Commission Decision 2005/15/EC which established 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, since the material conditions for exempting an activity from the provisions of Directive 2004/17/EC are substantially the same as under Article 34 of Directive 2014/25/EU.
  • Commission Implementing Decision (EU) 2016/1804 of 10 October 2016 on the detailed rules for the application of Articles 34 and 35 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 (notified under document C(2016) 6351) (Text with EEA relevance) Decision · Grade B
    This Decision should replace Decision 2005/15/EC which was adopted on the basis of Directive 2004/17/EC. Decision 2005/15/EC should therefore be repealed.
  • Commission Implementing Decision (EU) 2016/1804 of 10 October 2016 on the detailed rules for the application of Articles 34 and 35 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 (notified under document C(2016) 6351) (Text with EEA relevance) Decision · Grade B
    Decision 2005/15/EC is repealed.
  • Definitive adoption of the European Union's general budget for the financial year 2010 (2010/117/EU, Euratom) Act · Grade B
    The amount of assigned revenue pursuant to Article 18(1)(e) to (j) of the Financial Regulation is estimated at EUR 565000. Legal basis Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ 17, 6.10.1958, p. 385). Council Decision of 15 September 1958 to create the Official Journal of the European Communities (OJ 17, 6.10.1958, p. 390). Council Regulation (EEC) No 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG) (OJ L 199, 31.7.1985, p. 1). Council Directive 89/665/EEC of 21 December 1989 on the coordination
  • Definitive adoption (EU, Euratom) 2015/339 of the European Union’s general budget for the financial year 2015 Act · Grade B
    The amount of assigned revenue pursuant to Article 21(3) of the Financial Regulation is estimated at EUR 20000. Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ 17, 6.10.1958, p. 385/58). Council Decision of 15 September 1958 creating the Official Journal of the European Communities (OJ 17, 6.10.1958, p. 390/58). Council Regulation (EEC) No 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG) (OJ L 199, 31.7.1985, p. 1). Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regu
  • Definitive adoption (EU, Euratom) 2015/366 of Amending budget No 2 of the European Union for the financial year 2014 Act · Grade B
    The amount of assigned revenue pursuant to Article 21(3) of the Financial Regulation is estimated at EUR 40000. Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ 17, 6.10.1958, p. 385/58). Council Decision of 15 September 1958 creating the Official Journal of the European Communities (OJ 17, 6.10.1958, p. 419/58). Council Regulation (EEC) No 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG) (OJ L 199, 31.7.1985, p. 1). Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regu
  • Judgment of the General Court (Fifth Chamber) 27 April 2016 Judgment · Grade B
    In so far as concerns the criteria and methods actually applied, it must be observed that the Commission referred, in particular, in recital 3 of the contested decision, to Article 30 of Directive 2004/17. Paragraph 2 of Article 30 provides that the question of whether an activity is directly exposed to competition is to be decided on the basis of criteria that are in conformity with the FEU Treaty provisions on competition, such as the characteristics of the goods or services concerned, the existence of alternative goods or services, the prices and the actual or potential presence of more tha
  • Judgment of the General Court (Fifth Chamber) 27 April 2016 Judgment · Grade B
    Secondly, the applicant argues that the Commission infringed Directive 2004/17 in that it failed to apply the criteria and methods laid down in the FEU Treaty provisions on competition. According to the applicant, the approach taken by the Commission was in contradiction to Article 30 of the directive, Decision 2005/15 and the Commission Notice on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5, the Notice on market definition). The studies, surveys and tests relating to the definition of the relevant market which the applicant carried out w
  • Judgment of the General Court (Fifth Chamber) 27 April 2016 Judgment · Grade B
    Secondly, in so far as concerns Decision 2005/15, it must be recalled that, according to recital 2 of that decision, the conditions laid down in Article 30(1) of Directive 2004/17 are to be evaluated solely for the purposes of that directive and must be without prejudice to the application of the rules on competition. Moreover, it is clear from recital 40 of the directive that Article 30 thereof should provide legal certainty for the entities concerned, as well as an appropriate decision-making process, ensuring, within short time limits, the uniform application of EU law in this area. This co
  • Judgment of the General Court (Fifth Chamber) 27 April 2016 Judgment · Grade B
    In so far as the applicant argues that, in section 3 of Annex I to Decision 2005/15, the Commission confirmed that the criteria of the provisions of competition law applied, it must be observed that the first sentence of section 3 of Annex I to Decision 2005/15, on the definition of the relevant product market, is admittedly identical to the definition of the relevant product market given in point 7 of the Notice on market definition, which concerns EU competition law. However, Decision 2005/15 does not mention that notice and, under Article 30(2) of Directive 2004/17, the criteria for determi
  • Judgment of the General Court (Fifth Chamber) 27 April 2016 Judgment · Grade B
    That argument cannot be accepted. First of all, recital 6 of Decision 2007/169, recital 10 of Implementing Decision 2011/875 and recital 6 of Implementing Decision 2014/299 emphasise that the assessment of whether or not the services in question were directly exposed to competition was carried out solely with reference to the application of Directive 2004/17 and was wholly without prejudice to the application of the rules on competition. Moreover, the legal basis of Implementing Decision 2014/299 was not Directive 2004/17 but Directive 2014/25/EU of the European Parliament and of the Council o
  • Judgment of the General Court (Fifth Chamber) 27 April 2016 Judgment · Grade B
    In this connection, it must be pointed out that section 3 of Annex I to Decision 2005/15 contains rules for defining the relevant product market. According to those rules, a relevant product market comprises all those products or services which are regarded as interchangeable or substitutable by the consumer, by reason of their characteristics, their prices and their intended use. Section 3 of Annex I to Decision 2005/15 also contains a non-exhaustive list of the factors which are normally considered to be relevant to the determination of a relevant product market and which are to be taken int
  • Judgment of the General Court (Fifth Chamber) 27 April 2016 Judgment · Grade B
    Even supposing that there is, as the applicant alleges, a correlation between the decline in postal items, on the one hand, and the increase in electronic communications and a high level of connection to broadband internet services in Austria, on the other, those facts in no way demonstrate that, in the light of the criteria laid down in Decision 2005/15 and in the case-law cited in paragraph 57 above, the Commission made a manifest error of assessment by concluding that electronic services were not substitutable for the postal services in question. Indeed, it is clear from recital 17 of the c
  • Judgment of the General Court (Fifth Chamber) 27 April 2016 Judgment · Grade B
    It is important to point out in this connection that footnote 7 to Decision 2005/15 states that, when defining the relevant market, the Commission considers only products which can be readily substituted for the products in question. Readily substitutable products are those to which consumers would switch in response to a modest but significant increase in the price of the relevant product, such as 5%. According to that footnote, this enables the Commission to assess the competitive situation in the context of a relevant market comprising all the products to which consumers of the products in