19.9.2013

EN

Official Journal of the European Union

L 249/16

(1)

By letter of 5 November 2012 (1), and following pre-notification discussions, the Authority received a request from the Norwegian Government to adopt a decision establishing the applicability of Article 30(1) of Directive 2004/17/EC to petroleum activities on the Norwegian Continental Shelf (‘渢he NCS‘�. In a letter dated 25 January 2013, the Authority requested the Norwegian Government to submit additional information (2). The Norwegian Government submitted its reply to the Authority in a letter dated 15 February 2013 (3). The notification and the reply from the Norwegian Government were discussed in a telephone conference on 4 March 2013 (4). By letters from the Authority of 22 March 2013, the EFTA Public Procurement Committee was consulted and asked to provide its view by written procedure (5). Upon a count of the votes by its members, the EFTA Public Procurement Committee delivered a positive opinion on the Authority‘檚 draft decision on 16 April 2013 (6).

(2)

The request by the Norwegian Government concerns the exploration and production of crude oil and natural gas on the NCS, including development (i.e., the setting up of adequate infrastructure for future production, such as production platforms, pipelines, terminals etc). The Norwegian Government has in its request described three activities:

(3)

The intention behind Article 30(1) of Directive 2004/17/EC is to allow for an exemption to the requirements of the rules on public procurement in a situation where the participants on a market are operating in a competitive manner. Article 30(1) of the Directive provides that:

‘淐ontracts intended to enable an activity mentioned in Articles 3 to 7 to be carried out shall not be subject to this Directive if, in the Member State in which it is performed, the activity is directly exposed to competition on markets to which access is not restricted.‘�/p>

(4)

Article 30(1) of the Directive sets out two requirements which must both be met before the Authority can adopt a positive decision regarding a request for exemption under Article 30(4), taking into account Article 30(6), of the Directive.

(5)

The first requirement in Article 30(1) of Directive 2004/17/EC is that the activity must be taking place on a market to which access is not restricted. Article 30(3) of the Directive provides that ‘渁ccess to a market shall be deemed not to be restricted if the Member State has implemented and applied the provisions of Community legislation mentioned in Annex XI‘� Annex XI of the Directive lists several directives.

(6)

Among the directives listed in Annex XI is Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting and using authorizations for the prospection, exploration and production of hydrocarbons (7), which was incorporated into EEA law in 1995 and is referred to in point 12 of Annex IV to the EEA Agreement.

(7)

Also listed among the directives set out in Annex XI is Directive 98/30/EC. This Directive was replaced by Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC. The latter was incorporated into EEA law in 2005 and is referred to in point 23 of Annex IV to the EEA Agreement (8).

(8)

Accordingly, access to the market can be deemed to be unrestricted if the Norwegian State has implemented and properly applied the Acts referred to in points 12 and 23 of Annex IV to the EEA Agreement, which correspond to Directive 94/22/EC and Directive 2003/55/EC respectively (9).

(9)

The second requirement in Article 30(1) of the Directive 2004/17/EC is that the activity, in the EFTA State where it is performed, is directly exposed to competition. The question of whether an activity is directly exposed to competition is to be decided on the basis of ‘渃riteria that are in conformity with the EC Treaty 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‘�a href="#ntr10-L_2013249EN.01001601-E0010" id="ntc10-L_2013249EN.01001601-E0010" shape="rect"> (10)