HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 166/28
EN
Official Journal of the European Union
25.6.2011
COMMISSION IMPLEMENTING DECISION
of 24 June 2011
exempting exploration for oil and gas and exploitation of oil in Italy from the application 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(2011) 4253)
(Only the Italian text is authentic)
(Text with EEA relevance)
(2011/372/EU)
THE EUROPEAN COMMISSION,
setting up of adequate infrastructure for future
production (oil platforms, pipelines, terminals, etc.).
Furthermore, established Commission practice also
Having regard to the Treaty on the Functioning of the European
found that ‘the development, production and sales of
Union,
crude oil’ constitutes ‘one relevant product market’ ( 3 ).
Thus, for the purposes of this Decision, ‘production’
will be taken as including both ‘development’ as well
Having regard to Directive 2004/17/EC of the European
as (first) sale of oil.
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 ( 1 ), and in particular
Article 30(5) and (6) thereof,
(3) Assomineraria
is
a
trade
association
which,
in
this
context, acts on behalf of the main undertakings
operating in the exploration and production of hydro
Whereas:
carbons sector in Italy. The four main companies
affiliated to the association are ENI SpA, Edison SpA,
Shell Italia E&P SpA and Total E&P Italia SpA.
I. FACTS
(1) On
23
March
2011
the
Italian
Petroleum
and
Mining
Industry Association – Assomineraria transmitted a
II. LEGAL FRAMEWORK
request pursuant to Article 30(5) of Directive
2004/17/EC to the Commission by e-mail. In accordance
(4) Article
30
of
Directive
2004/17/EC
provides
that
with Article 30(5) first subparagraph, the Commission
contracts intended to enable the performance of one of
informed the Italian authorities thereof by letter of
the activities to which Directive 2004/17/EC applies shall
1 April 2011, to which the said authorities answered
not be subject to that Directive if, in the Member State in
on 19 April 2011. The request submitted by Assomi
which it is carried out, the activity is directly exposed to
neraria concerns the exploration for oil and gas and
competition on markets to which access is not restricted.
exploitation of oil in Italy. In line with previous
Direct exposure to competition is assessed on the basis
Commission Merger Decisions ( 2 ), two distinct activities
of objective criteria, taking account of the specific char
have been described in the request, namely:
acteristics of the sector concerned. Access is deemed to
be unrestricted if the Member State has implemented and
applied the relevant EU legislation opening a given sector
(a) exploration for oil and natural gas; and
or a part of it.
(b) production of oil.
(5) Since
Italy
has
implemented
and
applied
Directive
94/22/EC of the European Parliament and of the
Council of 30 May 1994 on the conditions for
(2) In
accordance
with
the
abovementioned
Commission
Decisions, ‘production’ will for the purposes of this
granting and using authorisations for the prospection,
Decision be taken to include also ‘development’, i.e. the
exploration and production of hydrocarbons ( 4 ), access
to the market should be deemed not to be restricted in
accordance with the first subparagraph of Article 30(3)
( 1 ) OJ L 134, 30.4.2004, p. 1.
of Directive 2004/17/EC. Direct exposure to competition
( 2 ) See in particular Commission Decision 2004/284/EC of
29 September 1999 declaring a concentration compatible with the
common market and the EEA Agreement (Case No IV/M.1383 —
( 3 ) See, inter alia, Commission Decision 2001/45/EC of 29 September
Exxon/Mobil) and subsequent decisions, inter alia, Commission
1999 declaring a concentration to be compatible with the common
Decision of 3 May 2007 declaring a concentration to be compatible
market and the EEA Agreement (Case IV/M.1532. BP Amoco/Arco),
with the common market (Case No COMP/M.4545 – STATOIL/
point 14.
HYDRO) according to Council Regulation (EEC) No 139/2004.
( 4 ) OJ L 164, 30.6.1994, p. 3.

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EN
25.6.2011 Official
Journal
of
the
European
Union L
166/29
in a particular market should be evaluated on the basis of
larger investments are needed to explore for oil and gas
various criteria, none of which are, necessarily and per se,
in the North Sea than is the case for exploration in, e.g.
decisive.
the Middle East.
(6) For
the
purposes
of
assessing
whether
the
relevant (11) Two
other
parameters
have
typically
been
applied
to
operators are subject to direct competition in the
assess the market shares of economic operators within
markets concerned by this Decision, the market share
this sector, namely, their share of proven reserves and of
of the main players and the degree of concentration of
the expected production ( 3 ).
those markets shall be taken into account. As the
conditions vary for the different activities that are
concerned by this Decision, a separate assessment shall
be undertaken for each activity/market.
(12) As
of
31
December
2009,
the
global,
proven
oil
and
gas
reserves amounted to a total of 385,58 billion standard
cubic metres oil equivalent (in the following Sm 3 o. e.)
worldwide, according to the available information ( 4 ). As
(7)
This Decision is without prejudice to the application of
of 1 January 2010, the combined, proven oil and gas
the rules on competition.
reserves in Italy amounted to slightly more than
0,205 billion Sm 3 o. e.
( 5 ), or slightly more than
0,05 %. The share thereof of the individual contracting
entities operating in Italy is necessarily even smaller.
According to the available information, there is a direct
III. ASSESSMENT
correlation between proven reserves of oil and gas and
expected future production. Nothing in the available
(8)
Each of the two activities that are the subject of this
request (exploration for oil and natural gas and
information therefore indicates that the market share of
production of oil) have been considered to constitute
the individual contracting entities operating in Italy
separate product markets in the previous Commission
would be substantially different if measured in terms of
Decisions referred to in recitals 1 and 2 above. They
expected production rather than in terms of its share of
should therefore be examined separately.
proven reserves. Given the links between proven reserves
and actual production these facts can be taken as an
indication also of the state of competition on the
market concerned here.
Exploration for oil and natural gas
(9) According
to
Commission
practice
( 1 ), exploration for oil
and natural gas constitutes one relevant product market,
(13) The exploration market is not highly concentrated. Apart
since it is not possible from the outset to determine
from the state-owned companies, the market is char
acterised by the presence of international vertically inte
whether the exploration will result in finding oil or
grated private players named the super majors (BP and
natural gas. On the exploration market, exploration
ExxonMobil and Shell) as well as a certain number of so-
companies acquire exploration licenses granted by ‘host
called ‘majors’. These elements are an indication of direct
countries’ usually via bidding procedures ( 2 ). It has
exposure to competition.
furthermore been established through the same, long-
standing, Commission practice, that the geographical
scope of that market is worldwide. Given that there is
no indication that the definition would be different in
this case, it will be maintained for the purposes of this
Production of oil
Decision.
(14) According
to
established
Commission
practice
( 6 ), devel
opment, production and sales of (crude) oil is a separate
product market whose geographic scope is worldwide.
Given that there is no indication that the definition
(10) The
market
shares
of
operators
active
in
exploration
can
would be different in this case it will be maintained for
be measured by reference to three variables: the capital
the purposes of this Decision.
expenditure, proven reserves and expected production.
The use of capital expenditure to measure the market
( 3 ) See in particular the abovementioned Exxon/Mobil Decision
shares of operators on the exploration market has been
(paragraphs 25 and 27).
found to be unsuitable, inter alia, because of the large
( 4 ) See point 5.2.1 of the application and the sources quoted there, in
differences between the required levels of investments
particular the BP Statistical Review of World Energy, June 2010, in
that are necessary in different geographic areas. Thus,
the following referred to as ‘2010 BP Statistics’, annexed to it. The
Canadian oil sands were not taken into account for reasons of
consistency with previous Article 30 Decisions.
( 1 ) See in particular the abovementioned Exxon/Mobil Decision and,
( 5 ) According to 2010 BP Statistics, p. 8.
more recently, Commission Decision of 19 November 2007
( 6 ) See in particular the abovementioned Exxon/Mobil Decision and,
declaring a concentration to be compatible with the common
more recently, Commission Decision of 19 November 2007
market (Case No COMP/M.4934 – KAZMUNAIGAZ/ROMPETROL)
declaring a concentration to be compatible with the common
according to Council Regulation (EEC) No 139/2004.
market (Case No COMP/M.4934 – KAZMUNAIGAZ/ROMPETROL)
( 2 ) M.1532 BP Amoco/Arco, paragraphs 9 and 10.
according to Council Regulation (EEC) No 139/2004.

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L 166/30
EN
Official Journal of the European Union
25.6.2011
(15) According
to
the
available
information
( 1 ), the total, daily
17 to be carried out in Italy, nor when design contests
production of oil worldwide amounted to 79,948 million
are organised for the pursuit of such an activity in those
barrels in 2009. That same year, a total of 0,095 million
geographic areas.
barrels per day were produced in Italy giving it a market
share of 0,11 %. Looking at the 2009 share of the indi
vidual contracting entities operating in Italy, the
(19) According
to
the
application,
in
Italy
most
of
exploi
situation is as follows: with a worldwide production of
tation fields produce both oil and gas, in different
1 007 thousand ( 2 ) barrels per day, ENI has a share of
percentages ( 8 ). The production of gas is not subject to
1,26 % of oil production worldwide; Shell’s worldwide
this exemption request, and for this sector the provisions
production of 1 581 thousand barrels of oil per day ( 3 )
of Directive 2004/17/EC continue to apply. In this
gives it a market share amounting to 1,98 % of oil
context, it is recalled that procurement contracts
production in the world; Total has a worldwide
covering several activities shall be treated in accordance
production of 1 381 thousand barrels of oil per day ( 4 )
with Article 9 of Directive 2004/17/EC. This means that,
which gives it a market share amounting to 1,73 % of oil
when a contracting entity is engaged in ‘mixed’
production worldwide; finally Edison has a worldwide
procurement, that is procurement used to support the
daily production of 5 thousand barrels of oil per
performance of both, activities exempted from the appli
day ( 5 ) which gives it a market share amounting to
cation of Directive 2004/17/EC and activities not
0,006 % of oil production in the world.
exempted, regard shall 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 the production of gas, the
(16) For the purposes of this analysis, it is important to have
provision of Directive 2004/17/EC shall apply. If it is
regard to the degree of concentration in the relevant
objectively impossible to determine for which activity
market as a whole. In this view, the Commission notes
the contract is principally intended, the contract shall
that the market for crude oil production is characterised
be awarded in accordance with the rules referred to in
by the presence of big state-owned companies and three
paragraphs (2) and (3) of Article 9 of Directive
international vertically integrated private players (the so
2004/17/EC.
called ‘super majors’: BP, ExxonMobil and Shell whose
parts of oil production in 2009 amounted to: 3,2 %,
3,0 % and 2,0 % respectively ( 6 )) as well as a certain
number of so-called ‘majors’ ( 7 ). These factors suggest
(20) This Decision is based on the legal and factual situation
that the market comprises a number of players
as of March 2011 to April 2011 as it appears from the
between whom effective competition can be presumed.
information submitted by Assomineraria, and BP Sta
tistical Review of World Energy 2010 and the Italian
authorities. It may be revised, should significant
changes in the legal or factual situation mean that the
IV. CONCLUSIONS
conditions for the applicability of Article 30(1) of
Directive 2004/17/EC are no longer met.
(17) In
view
of
the
factors
examined
in
recitals
8
to
16
the
condition of direct exposure to competition laid down in
Article 30(1) of Directive 2004/17/EC should be
considered to be met in Italy in respect of the
(21) The
measures provided for in this Decision are in
following services:
accordance with the opinion of the Advisory
Committee for Public Contracts,
(a) exploration for oil and natural gas; and
HAS ADOPTED THIS DECISION:
(b) production of oil.
Article 1
Directive 2004/17/EC shall not apply to contracts awarded by
(18) Since the condition of unrestricted access to the market
contracting entities and intended to enable the following
is deemed to be met, Directive 2004/17/EC should not
services to be carried out in Italy:
apply when contracting entities award contracts intended
to enable the services listed in points (a) and (b) of recital
(a) exploration for oil and natural gas; and
( 1 ) See p. 8 of 2010 BP Statistics, annexed to request.
( 2 ) Of which 56 thousand barrels per day are produced daily in Italy.
( 3 ) Of which 30 thousand barrels per day are produced daily in Italy.
( 4 ) Total does not produce oil in Italy.
( 5 ) The entire oil production of Edison takes place in Italy.
(b) production of oil.
( 6 ) See point 5.2.3 of the application, p. 18.
( 7 ) E.g.: Total, Chevron, Eni and Conoco, whose market shares are
smaller than those of the super majors.
( 8 ) See point 2.1 of the application.

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EN
25.6.2011 Official
Journal
of
the
European
Union L
166/31
Article 2
This Decision is addressed to the Italian Republic.
Done at Brussels, 24 June 2011.
For the Commission
Michel BARNIER
Member of the Commission

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