What changed, Directive 2004/17/EC

+ ## CHAPTER I / Basic terms
+ 
+ ### Article 1 — Definitions
+ 
+ 1. For the purposes of this Directive, the definitions set out in this Article shall apply.
+ 
+ 2.
+ 
+ (a) ‘Supply, works and service contracts’ are contracts for pecuniary interest concluded in writing between one or more of the contracting entities referred to in Article 2(2), and one or more contractors, suppliers, or service providers.
+ 
+ (b) ‘Works contracts’ are contracts having as their object either the execution, or both the design and execution, of works related to one of the activities within the meaning of Annex XII or a work, or the realisation by whatever means of a work corresponding to the requirements specified by the co…
+ 
+ (c) ‘Supply contracts’ are contracts other than those referred to in (b) having as their object the purchase, lease, rental or hire-purchase, with or without the option to buy, of products.
+ 
+ A contract having as its object the supply of products, which also covers, as an incidental matter, siting and installation operations shall be considered to be a ‘supply contract’;
+ 
+ (d) ‘Service contracts’ are contracts other than works or supply contracts having as their object the provision of services referred to in Annex XVII.
+ 
+ A contract having as its object both products and services within the meaning of Annex XVII shall be considered to be a ‘service contract’ if the value of the services in question exceeds that of the products covered by the contract.
+ 
+ A contract having as its object services within the meaning of Annex XVII and including activities within the meaning of Annex XII that are only incidental to the principal object of the contract shall be considered to be a service contract.
+ 
+ 3.
+ 
+ (a) A ‘works concession’ is a contract of the same type as a works contract except for the fact that the consideration for the works to be carried out consists either solely in the right to exploit the work or in that right together with payment;
+ 
+ (b) A ‘service concession’ is a contract of the same type as a service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in that right together with payment.
+ 
+ 4. A ‘framework agreement’ is an agreement between one or more contracting entities referred to in Article 2(2) and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where ap…
+ 
+ 5. A ‘dynamic purchasing system’ is a completely electronic process for making commonly used purchases, the characteristics of which, as generally available on the market, meet the requirements of the contracting entity, which is limited in duration and open throughout its validity to any economic o…
+ 
+ 6. An ‘electronic auction’ is a repetitive process involving an electronic device for the presentation of new prices, revised downwards, and/or new values concerning certain elements of tenders, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic …
+ 
+ 7. The terms ‘contractor’, ‘supplier’ or ‘service provider’ mean either a natural or a legal person, or a contracting entity within the meaning of Article 2(2)(a) or (b), or a group of such persons and/or entities which offers on the market, respectively, the execution of works and/or a work, produc…
+ 
+ The terms ‘economic operator’ shall cover equally the concepts of contractor, supplier and service provider. It is used merely in the interests of simplification.
+ 
+ A ‘tenderer’ is an economic operator who submits a tender, and ‘candidate’ means one who has sought an invitation to take part in a restricted or negotiated procedure.
+ 
+ 8. A ‘central purchasing body’ is a contracting authority within the meaning of Article 2(1)(a) or a contracting authority within the meaning of Article 1(9) of Directive 2004/18/EC which:
+ 
+ — acquires supplies and/or services intended for contracting entities or
+ 
+ — awards public contracts or concludes framework agreements for works, supplies or services intended for contracting entities.
+ 
+ 9. ‘Open, restricted and negotiated procedures’ are the procurement procedures applied by contracting entities, whereby:
+ 
+ (a) in the case of open procedures, any interested economic operator may submit a tender;
+ 
+ (b) in the case of restricted procedures, any economic operator may request to participate and only candidates invited by the contracting entity may submit a tender;
+ 
+ (c) in the case of negotiated procedures, the contracting entity consults the economic operators of its choice and negotiates the terms of the contract with one or more of these.
+ 
+ 10. ‘Design contests’ are those procedures which enable the contracting entity to acquire, mainly in the fields of town and country planning, architecture, engineering or data processing, a plan or design selected by a jury after having been put out to competition with or without the award of prizes…
+ 
+ 11. ‘Written’ or ‘in writing’ means any expression consisting of words or figures that can be read, reproduced and subsequently communicated. It may include information transmitted and stored by electronic means.
+ 
+ 12. ‘Electronic means’ means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means.
+ 
+ 13. ‘Common Procurement Vocabulary (CPV)’ means the reference nomenclature applicable to public contracts as adopted by Regulation (EC) No 2195/2002 of 5 November 2002 of the European Parliament and of the Council on the Common Procurement Vocabulary (CVP) (26) while ensuring equivalence with the ot…
+ 
+ In the event of varying interpretations of the scope of this Directive, owing to possible differences between the CPV and NACE nomenclatures listed in Annex XII or between the CPV and CPC (provisional version) nomenclatures listed in Annex XVII, the NACE or the CPC nomenclature respectively shall ta…
+ 
+ ## Section 1 / Entities
+ 
+ ### Article 2 — Contracting entities
+ 
+ 1. For the purposes of this Directive,
+ 
+ (a) ‘Contracting authorities’are State, regional or local authorities, bodies governed by public law, associations formed by one or several such authorities or one or several of such bodies governed by public law.
+ 
+ ‘A body governed by public law’ means any body:
+ 
+ — established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character,
+ 
+ — having legal personality and
+ 
+ — financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional…
+ 
+ (b) a ‘public undertaking’is any undertaking over which the contracting authorities may exercise directly or indirectly a dominant influence by virtue of their ownership of it, their financial participation therein, or the rules which govern it.
+ 
+ A dominant influence on the part of the contracting authorities shall be presumed when these authorities, directly or indirectly, in relation to an undertaking:
+ 
+ — hold the majority of the undertaking's subscribed capital, or
+ 
+ — control the majority of the votes attaching to shares issued by the undertaking, or
+ 
+ — can appoint more than half of the undertaking's administrative, management or supervisory body.
+ 
+ 2. This Directive shall apply to contracting entities:
+ 
+ (a) which are contracting authorities or public undertakings and which pursue one of the activities referred to in Articles 3 to 7;
+ 
+ (b) which, when they are not contracting authorities or public undertakings, have as one of their activities any of the activities referred to in Articles 3 to 7, or any combination thereof and operate on the basis of special or exclusive rights granted by a competent authority of a Member State.
+ 
+ 3. For the purposes of this Directive, ‘special or exclusive rights’ mean rights granted by a competent authority of a Member State by way of any legislative, regulatory or administrative provision the effect of which is to limit the exercise of activities defined in Articles 3 to 7 to one or more e…
+ 
+ ## Section 2 / Activities
+ 
+ ### Article 3 — Gas, heat and electricity
+ 
+ 1. As far as gas and heat are concerned, this Directive shall apply to the following activities:
+ 
+ (a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of gas or heat; or
+ 
+ (b) the supply of gas or heat to such networks.
+ 
+ 2. The supply of gas or heat to networks which provide a service to the public by a contracting entity other than a contracting authority shall not be considered a relevant activity within the meaning of paragraph 1 where:
+ 
+ (a) the production of gas or heat by the entity concerned is the unavoidable consequence of carrying out an activity other than those referred to in paragraphs 1 or 3 of this Article or in Articles 4 to 7; and
+ 
+ (b) supply to the public network is aimed only at the economic exploitation of such production and amounts to not more than 20 % of the entity's turnover having regard to the average for the preceding three years, including the current year.
+ 
+ 3. As far as electricity is concerned, this Directive shall apply to the following activities:
+ 
+ (a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of electricity; or
+ 
+ (b) the supply of electricity to such networks.
+ 
+ 4. The supply of electricity to networks which provide a service to the public by a contracting entity other than a contracting authority shall not be considered a relevant activity within the meaning of paragraph 3 where:
+ 
+ (a) the production of electricity by the entity concerned takes place because its consumption is necessary for carrying out an activity other than those referred to in paragraphs 1 or 3 of this Article or in Articles 4 to 7; and
+ 
+ (b) supply to the public network depends only on the entity's own consumption and has not exceeded 30% of the entity's total production of energy, having regard to the average for the preceding three years, including the current year.
+ 
+ ### Article 4 — Water
+ 
+ 1. This Directive shall apply to the following activities:
+ 
+ (a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water; or
+ 
+ (b) the supply of drinking water to such networks.
+ 
+ 2. This Directive shall also apply to contracts or design contests awarded or organised by entities which pursue an activity referred to in paragraph 1 and which:
+ 
+ (a) are connected with hydraulic engineering projects, irrigation or land drainage, provided that the volume of water to be used for the supply of drinking water represents more than 20 % of the total volume of water made available by such projects or irrigation or drainage installations, or
+ 
+ (b) are connected with the disposal or treatment of sewage.
+ 
+ 3. The supply of drinking water to networks which provide a service to the public by a contracting entity other than a contracting authority shall not be considered a relevant activity within the meaning of paragraph 1 where:
+ 
+ (a) the production of drinking water by the entity concerned takes place because its consumption is necessary for carrying out an activity other than those referred to in Articles 3 to 7; and
+ 
+ (b) supply to the public network depends only on the entity's own consumption and has not exceeded 30 % of the entity's total production of drinking water, having regard to the average for the preceding three years, including the current year.
+ 
+ ### Article 5 — Transport services
+ 
+ 1. This Directive shall apply to activities relating to the provision or operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable.
+ 
+ As regards transport services, a network shall be considered to exist where the service is provided under operating conditions laid down by a competent authority of a Member State, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service.
+ 
+ 2. This Directive shall not apply to entities providing bus transport services to the public which were excluded from the scope of Directive 93/38/EEC pursuant to Article 2(4) thereof.
+ 
+ ### Article 6 — Postal services
+ 
+ 1. This Directive shall apply to activities relating to the provision of postal services or, on the conditions set out in paragraph 2(c), other services than postal services.
+ 
+ 2. For the purpose of this Directive and without prejudice to Directive 97/67/EC:
+ 
+ | (a) | ‘postal item’ : means an item addressed in the final form in which it is to be carried, irrespective of weight. In addition to items of correspondence, such items also include for instance books, catalogues, newspapers, periodicals and postal packages containing merchandise with or without c…
+ | --- | --- |
+ 
+ | (b) | ‘postal services’ : means services consisting of the clearance, sorting, routing and delivery of postal items. These services comprise:— ‘reserved postal services’: postal services which are or may be reserved on the basis of Article 7 of Directive 97/67/EC,— ‘other postal services’: postal …
+ | --- | --- |
+ 
+ | (c) | ‘other services than postal services’ : means services provided in the following areas:— mail service management services (services both preceding and subsequent to despatch, such as ‘mailroom management services’),— added-value services linked to and provided entirely by electronic means (i…
+ | --- | --- |
+ 
+ ### Article 7 — Exploration for, or extraction of, oil, gas, coal or other solid fuels, as well as ports and airports
+ 
+ This Directive shall apply to activities relating to the exploitation of a geographical area for the purpose of:
+ 
+ (a) exploring for or extracting oil, gas, coal or other solid fuels, or
+ 
+ (b) the provision of airports and maritime or inland ports or other terminal facilities to carriers by air, sea or inland waterway.
+ 
+ ### Article 8 — Lists of contracting entities
+ 
+ The non-exhaustive lists of contracting entities within the meaning of this Directive are contained in Annexes I to X. Member States shall notify the Commission periodically of any changes to their lists.
+ 
+ ### Article 9 — Contracts covering several activities
+ 
+ 1. A contract which is intended to cover several activities shall be subject to the rules applicable to the activity for which it is principally intended.
+ 
+ However, the choice between awarding a single contract and awarding a number of separate contracts may not be made with the objective of excluding it from the scope of this Directive or, where applicable, Directive 2004/18/EC.
+ 
+ 2. If one of the activities for which the contract is intended is subject to this Directive and the other to the abovementioned Directive 2004/18/EC and if it is objectively impossible to determine for which activity the contract is principally intended, the contract shall be awarded in accordance w…
+ 
+ 3. If one of the activities for which the contract is intended is subject to this Directive and the other is not subject to either this Directive or the abovementioned Directive 2004/18/EC, and if it is objectively impossible to determine for which activity the contract is principally intended, the …
+ 
+ ## CHAPTER III / General principles
+ 
+ ### Article 10 — Principles of awarding contracts
+ 
+ Contracting entities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.
+ 
+ ## CHAPTER I / General provisions
+ 
+ ### Article 11 — Economic operators
+ 
+ 1. Candidates or tenderers who, under the law of the Member State in which they are established, are entitled to provide the relevant service, shall not be rejected solely on the ground that, under the law of the Member State in which the contract is awarded, they would be required to be either natu…
+ 
+ However, in the case of service and works contracts as well as supply contracts covering in addition services and/or siting and installation operations, legal persons may be required to indicate, in the tender or the request to participate, the names and relevant professional qualifications of the s…
+ 
+ 2. Groups of economic operators may submit tenders or put themselves forward as candidates. In order to submit a tender or a request to participate, these groups may not be required by the contracting entities to assume a specific legal form; however, the group selected may be required to do so when…
+ 
+ ### Article 12 — Conditions relating to agreements concluded within the World Trade Organisation
+ 
+ For the purposes of the award of contracts by contracting entities, Member States shall apply in their relations conditions as favourable as those which they grant to economic operators of third countries in implementation of the Agreement. Member States shall, to this end, consult one another withi…
+ 
+ ### Article 13 — Confidentiality
+ 
+ 1. In the context of provision of technical specifications to interested economic operators, of qualification and selection of economic operators and of award of contracts, contracting entities may impose requirements with a view to protecting the confidential nature of information which they make a…
+ 
+ 2. Without prejudice to the provisions of this Directive, in particular those concerning the obligations relating to the advertising of awarded contracts and to the information to candidates and tenderers set out in Articles 43 and 49, and in accordance with the national law to which the contracting…
+ 
+ ### Article 14 — Framework agreements
+ 
+ 1. Contracting entities may regard a framework agreement as a contract within the meaning of Article 1(2) and award it in accordance with this Directive.
+ 
+ 2. Where contracting entities have awarded a framework agreement in accordance with this Directive, they may avail themselves of Article 40(3)(i) when awarding contracts based on that framework agreement.
+ 
+ 3. Where a framework agreement has not been awarded in accordance with this Directive, contracting entities may not avail themselves of Article 40(3)(i).
+ 
+ 4. Contracting entities may not misuse framework agreements in order to hinder, limit or distort competition.
+ 
+ ### Article 15 — Dynamic purchasing systems
+ 
+ 1. Member States may provide that contracting entities may use dynamic purchasing systems.
+ 
+ 2. In order to set up a dynamic purchasing system, contracting entities shall follow the rules of the open procedure in all its phases up to the award of the contracts to be concluded under this system. All tenderers who satisfy the selection criteria and have submitted an indicative tender which co…
+ 
+ 3. For the purposes of setting up the dynamic purchasing system, contracting entities shall:
+ 
+ (a) publish a contract notice making it clear that a dynamic purchasing system is involved;
+ 
+ (b) indicate in the specification, amongst other matters, the nature of the purchases envisaged under that system, as well as all the necessary information concerning the purchasing system, the electronic equipment used and the technical connection arrangements and specifications;
+ 
+ (c) offer by electronic means, on publication of the notice and until the system expires, unrestricted, direct and full access to the specification and to any additional documents and shall indicate in the notice the internet address at which such documents may be consulted.
+ 
+ 4. Contracting entities shall give any economic operator, throughout the entire period of the dynamic purchasing system, the possibility of submitting an indicative tender and of being admitted to the system under the conditions referred to in paragraph 2. They shall complete evaluation within a max…
+ 
+ Contracting entities shall inform the tenderer referred to in the first subparagraph at the earliest possible opportunity of its admittance to the dynamic purchasing system or of the rejection of its indicative tender.
+ 
+ 5. Each specific contract shall be the subject of an invitation to tender. Before issuing the invitation to tender, contracting entities shall publish a simplified contract notice inviting all interested economic operators to submit an indicative tender, in accordance with paragraph 4, within a time…
+ 
+ 6. Contracting entities shall invite all tenderers admitted to the system to submit a tender for each specific contract to be awarded under the system. To that end, they shall set a time limit for the submission of tenders.
+ 
+ They shall award the contract to the tenderer which submitted the best tender on the basis of the award criteria set out in the contract notice for the establishment of the dynamic purchasing system. Those criteria may, if appropriate, be formulated more precisely in the invitation referred to in th…
+ 
+ 7. A dynamic purchasing system may not last for more than four years, except in duly justified exceptional cases.
+ 
+ Contracting entities may not resort to this system to prevent, restrict or distort competition.
+ 
+ No charges may be billed to the interested economic operators or to parties to the system.
+ 
+ ## Section 1 / Thresholds
+ 
+ ### Article 16 — Contract thresholds
+ 
+ Save where they are ruled out by the exclusions in Articles 19 to 26 or pursuant to Article 30, concerning the pursuit of the activity in question, this Directive shall apply to contracts which have a value excluding value-added tax (VAT) estimated to be no less than the following thresholds:
+ 
+ (a) ►M1 EUR 473 000** ◄ ** in the case of supply and service contracts;
+ 
+ (b) ►M1 EUR 5 923 000** ◄ ** in the case of works contracts.
+ 
+ ### Article 17 — Methods of calculating the estimated value of contracts, framework agreements and dynamic purchasing systems
+ 
+ 1. The calculation of the estimated value of a contract shall be based on the total amount payable, net of VAT, as estimated by the contracting entity. This calculation shall take account of the estimated total amount, including any form of option and any renewals of the contract.
+ 
+ Where the contracting entity provides for prizes or payments to candidates or tenderers it shall take them into account when calculating the estimated value of the contract.
+ 
+ 2. Contracting entities may not circumvent this Directive by splitting works projects or proposed purchases of a certain quantity of supplies and/or services or by using special methods for calculating the estimated value of contracts.
+ 
+ 3. With regard to framework agreements and dynamic purchasing systems, the estimated value to be taken into consideration shall be the maximum estimated value net of VAT of all the contracts envisaged for the total term of the agreement or system.
+ 
+ 4. For the purposes of Article 16, contracting entities shall include in the estimated value of a works contract both the cost of the works and the value of any supplies or services necessary for the execution of the works, which they make available to the contractor.
+ 
+ 5. The value of supplies or services which are not necessary for the performance of a particular works contract may not be added to the value of the works contract when to do so would result in removing the procurement of those supplies or services from the scope of this Directive.
+ 
+ 6.
+ 
+ (a) Where a proposed work or purchase of services may result in contracts being awarded at the same time in the form of separate lots, account shall be taken of the total estimated value of all such lots.
+ 
+ Where the aggregate value of the lots is equal to or exceeds the threshold laid down in Article 16, this Directive shall apply to the awarding of each lot.
+ 
+ However, the contracting entities may waive such application in respect of lots the estimated value of which, net of VAT, is less than EUR 80 000 for services or EUR 1 million for works, provided that the aggregate value of those lots does not exceed 20 % of the aggregate value of the lots as a whol…
+ 
+ (b) Where a proposal for the acquisition of similar supplies may result in contracts being awarded at the same time in the form of separate lots, account shall be taken of the total estimated value of all such lots when applying Article 16.
+ 
+ Where the aggregate value of the lots is equal to or exceeds the threshold laid down in Article 16, this Directive shall apply to the awarding of each lot.
+ 
+ However, the contracting entities may waive such application in respect of lots, the estimated value of which, net of VAT, is less than EUR 80 000, provided that the aggregate cost of those lots does not exceed 20 % of the aggregate value of the lots as a whole.
+ 
+ 7. In the case of supply or service contracts which are regular in nature or which are intended to be renewed within a given period, the calculation of the estimated contract value shall be based on the following:
+ 
+ (a) either the total actual value of the successive contracts of the same type awarded during the preceding twelve months or financial year adjusted, if possible, to take account of the changes in quantity or value which would occur in the course of the 12 months following the initial contract;
+ 
+ (b) or the total estimated value of the successive contracts awarded during the 12 months following the first delivery, or during the financial year if that is longer than 12 months.
+ 
+ 8. The basis for calculating the estimated value of a contract including both supplies and services shall be the total value of the supplies and services, regardless of their respective shares. The calculation shall include the value of the siting and installation operations.
+ 
+ 9. With regard to supply contracts relating to the leasing, hire, rental or hire purchase of products, the value to be taken as a basis for calculating the estimated contract value shall be as follows:
+ 
+ (a) in the case of fixed-term contracts, if that term is less than or equal to 12 months, the total estimated value for the term of the contract or, if the term of the contract is greater than 12 months, the total value including the estimated residual value;
+ 
+ (b) in the case of contracts without a fixed term or the term of which cannot be defined, the monthly value multiplied by 48.
+ 
+ 10. For the purposes of calculating the estimated contract value of service contracts, the following amounts shall, where appropriate, be taken into account:
+ 
+ (a) the premium payable, and other forms of remuneration, in the case of insurance services;
+ 
+ (b) fees, commissions, interest and other modes of remuneration, in the case of banking and other financial services;
+ 
+ (c) fees, commissions payable and other forms of remuneration, in the case of contracts involving design tasks.
+ 
+ 11. In the case of service contracts which do not indicate a total price, the value to be used as the basis for calculating the estimated contract value shall be:
+ 
+ (a) in the case of fixed-term contracts, if that term is less than or equal to 48 months: the total value for their full term;
+ 
+ (b) in the case of contracts without a fixed term or with a term greater than 48 months: the monthly value multiplied by 48.
+ 
+ ## SUBSECTION 1
+ 
+ ### Article 18 — Works and service concessions
+ 
+ This Directive shall not apply to works and service concessions which are awarded by contracting entities carrying out one or more of the activities referred to in Articles 3 to 7, where those concessions are awarded for carrying out those activities.
+ 
+ ## SUBSECTION 2 / Exclusions applicable to all contracting entities and to all types of contract
+ 
+ ### Article 19 — Contracts awarded for purposes of resale or lease to third parties
+ 
+ 1. This Directive shall not apply to contracts awarded for purposes of resale or lease to third parties, provided that the contracting entity enjoys no special or exclusive right to sell or lease the subject of such contracts, and other entities are free to sell or lease it under the same conditions…
+ 
+ 2. The contracting entities shall notify the Commission at its request of all the categories of products or activities which they regard as excluded under paragraph 1. The Commission may periodically publish in the *Official Journal of the European Union*, for information purposes, lists of the cate…
+ 
+ ### Article 20 — Contracts awarded for purposes other than the pursuit of an activity covered or for the pursuit of such an activity in a third country
+ 
+ 1. This Directive shall not apply to contracts which the contracting entities award for purposes other than the pursuit of their activities as described in Articles 3 to 7 or for the pursuit of such activities in a third country, in conditions not involving the physical use of a network or geographi…
+ 
+ 2. The contracting entities shall notify the Commission at its request of any activities which they regard as excluded under paragraph 1. The Commission may periodically publish in the *Official Journal of the European Union* for information purposes, lists of the categories of activities which it c…
+ 
+ ### Article 21 — Contracts which are secret or require special security measures
+ 
+ This Directive shall not apply to contracts when they are declared to be secret by a Member State, when their performance must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned, or when the protect…
+ 
+ ### Article 22 — Contracts awarded pursuant to international rules
+ 
+ This Directive shall not apply to contracts governed by different procedural rules and awarded:
+ 
+ (a) pursuant to an international agreement concluded in accordance with the Treaty between a Member State and one or more third countries and covering supplies, works, services or design contests intended for the joint implementation or exploitation of a project by the signatory States; all agreemen…
+ 
+ (b) pursuant to a concluded international agreement relating to the stationing of troops and concerning the undertakings of a Member State or a third country;
+ 
+ (c) pursuant to the particular procedure of an international organisation.
+ 
+ ### Article 23 — Contracts awarded to an affiliated undertaking, to a joint venture or to a contracting entity forming part of a joint venture
+ 
+ 1. For the purposes of this Article, ‘affiliated undertaking’ means any undertaking the annual accounts of which are consolidated with those of the contracting entity in accordance with the requirements of the Seventh Council Directive 83/349/EEC of 13 June 1983 based on the Article 44(2)(g) of the …
+ 
+ 2. Provided that the conditions in paragraph 3 are met, this Directive shall not apply to contracts awarded:
+ 
+ (a) by a contracting entity to an affiliated undertaking, or
+ 
+ (b) by a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out activities within the meaning of Articles 3 to 7, to an undertaking which is affiliated with one of these contracting entities.
+ 
+ 3. Paragraph 2 shall apply:
+ 
+ (a) to service contracts provided that at least 80 % of the average turnover of the affiliated undertaking with respect to services for the preceding three years derives from the provision of such services to undertakings with which it is affiliated;
+ 
+ (b) to supplies contracts provided that at least 80 % of the average turnover of the affiliated undertaking with respect to supplies for the preceding three years derives from the provision of such supplies to undertakings with which it is affiliated;
+ 
+ (c) to works contracts provided that at least 80 % of the average turnover of the affiliated undertaking with respect to works for the preceding three years derives from the provision of such works to undertakings with which it is affiliated.
+ 
+ When, because of the date on which an affiliated undertaking was created or commenced activities, the turnover is not available for the preceding three years, it will be sufficient for that undertaking to show that the turnover referred to in points (a), (b) or (c) is credible, particularly by means…
+ 
+ Where more than one undertaking affiliated with the contracting entity provides the same or similar services, supplies or works, the above percentages shall be calculated taking into account the total turnover deriving respectively from the provision of services, supplies or works by those affiliate…
+ 
+ 4. This Directive shall not apply to contracts awarded:
+ 
+ (a) by a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out activities within the meaning of Articles 3 to 7, to one of these contracting entities, or
+ 
+ (b) by a contracting entity to such a joint venture of which it forms part, provided that the joint venture has been set up in order to carry out the activity concerned over a period of at least three years and that the instrument setting up the joint venture stipulates that the contracting entities…
+ 
+ 5. Contracting entities shall notify to the Commission, at its request, the following information regarding the application of paragraphs 2, 3 and 4:
+ 
+ (a) the names of the undertakings or joint ventures concerned,
+ 
+ (b) the nature and value of the contracts involved,
+ 
+ (c) such proof as may be deemed necessary by the Commission that the relationship between the undertaking or joint venture to which the contracts are awarded and the contracting entity complies with the requirements of this Article.
+ 
+ ## SUBSECTION 3 / Exclusions applicable to all contracting entities, but to service contracts only
+ 
+ ### Article 24 — Contracts relating to certain services excluded from the scope of this Directive
+ 
+ This Directive shall not apply to service contracts for:
+ 
+ (a) the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or concerning rights thereon; nevertheless, financial service contracts concluded at the same time as, before or after the contract of acquisition or rental, in whatever form, shall be…
+ 
+ (b) arbitration and conciliation services;
+ 
+ (c) financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments, in particular transactions by the contracting entities to raise money or capital;
+ 
+ (d) employment contracts;
+ 
+ (e) research and development services other than those where the benefits accrue exclusively to the contracting entity for its use in the conduct of its own affairs, on condition that the service provided is wholly remunerated by the contracting entity.
+ 
+ ### Article 25 — Service contracts awarded on the basis of an exclusive right
+ 
+ This Directive shall not apply to service contracts awarded to an entity which is itself a contracting authority within the meaning of Article 2(1)(a) or to an association of contracting authorities on the basis of an exclusive right which they enjoy pursuant to a published law, regulation or admini…
+ 
+ ## SUBSECTION 4 / Exclusions applicable to certain contracting entities only
+ 
+ ### Article 26 — Contracts awarded by certain contracting entities for the purchase of water and for the supply of energy or of fuels for the production of energy
+ 
+ This Directive shall not apply:
+ 
+ (a) to contracts for the purchase of water if awarded by contracting entities engaged in one or both of the activities referred to in Article 4(1).
+ 
+ (b) to contracts for the supply of energy or of fuels for the production of energy, if awarded by contracting entities engaged in an activity referred to in Article 3(1), Article 3(3) or Article 7(a).
+ 
+ ## SUBSECTION 5 / Contracts subject to special arrangements, provisions concerning central purchasing bodies and the general procedure in case of direct exposure to competition
+ 
+ ### Article 27 — Contracts subject to special arrangements
+ 
+ Without prejudice to Article 30 the Kingdom of the Netherlands, the United Kingdom, the Republic of Austria and the Federal Republic of Germany shall ensure, by way of the conditions of authorisation or other appropriate measures, that any entity operating in the sectors mentioned in Decisions 93/67…
+ 
+ (a) observes the principles of non-discrimination and competitive procurement in respect of the award of supplies, works and service contracts, in particular as regards the information which the entity makes available to economic operators concerning its procurement intentions;
+ 
+ (b) communicates to the Commission, under the conditions defined in Commission Decision 93/327/EEC defining the conditions under which contracting entities exploiting geographical areas for the purpose of exploring for or extracting oil, gas, coal or other solid fuels must communicate to the Commiss…
+ 
+ ### Article 28 — Reserved contracts
+ 
+ Member States may reserve the right to participate in contract award procedures to sheltered workshops or provide for such contracts to be performed in the context of sheltered employment programmes where most of the employees concerned are handicapped persons who, by reason of the nature or the ser…
+ 
+ The notice used to make the call for competition shall make reference to this Article.
+ 
+ ### Article 29 — Contracts and framework agreements awarded by central purchasing bodies
+ 
+ 1. Member States may prescribe that contracting entities may purchase works, supplies and/or services from or through a central purchasing body.
+ 
+ 2. Contracting entities which purchase works, supplies and/or services from or through a central purchasing body in the cases set out in Article 1(8) shall be deemed to have complied with this Directive insofar as the central purchasing body has complied with it or, where appropriate, with Directive…
+ 
+ ### Article 30 — Procedure for establishing whether a given activity is directly exposed to competition
+ 
+ 1. Contracts 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.
+ 
+ 2. For the purposes of paragraph 1, the question of whether an activity is directly exposed to competition shall 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 alte…
+ 
+ 3. For the purposes of paragraph 1, access 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.
+ 
+ If free access to a given market cannot be presumed on the basis of the first subparagraph, it must be demonstrated that access to the market in question is free de facto and de jure.
+ 
+ 4. When a Member State considers that, in compliance with paragraphs 2 and 3, paragraph 1 is applicable to a given activity, it shall notify the Commission and inform it of all relevant facts, and in particular of any law, regulation, administrative provision or agreement concerning compliance with …
+ 
+ Contracts intended to enable the activity concerned to be carried out shall no longer be subject to this Directive if the Commission:
+ 
+ — has adopted a Decision establishing the applicability of paragraph 1 in accordance with paragraph 6 and within the period it provides for, or
+ 
+ — has not adopted a Decision concerning such applicability within that period.
+ 
+ However, where free access to a given market is presumed on the basis of the first subparagraph of paragraph 3, and where an independent national authority that is competent in the activity concerned has established the applicability of paragraph 1, contracts intended to enable the activity concerne…
+ 
+ 5. When the legislation of the Member State concerned provides for it, the contracting entities may ask the Commission to establish the applicability of paragraph 1 to a given activity by a Decision in conformity with paragraph 6. In such a case, the Commission shall immediately inform the Member St…
+ 
+ That Member State shall, taking account of paragraphs 2 and 3, inform the Commission of all relevant facts, and in particular of any law, regulation, administrative provision or agreement concerning compliance with the conditions set out in paragraph 1, where appropriate together with the position a…
+ 
+ The Commission may also begin the procedure for adoption of a Decision establishing the applicability of paragraph 1 to a given activity on its own initiative. In such a case, the Commission shall immediately inform the Member State concerned.
+ 
+ If, at the end of the period laid down in paragraph 6, the Commission has not adopted a Decision concerning the applicability of paragraph 1 to a given activity, paragraph 1 shall be deemed to be applicable.
+ 
+ 6. For the adoption of a Decision under this Article, in accordance with the procedure under Article 68(2), the Commission shall be allowed a period of three months commencing on the first working day following the date on which it receives the notification or the request. However, this period may b…
+ 
+ When an activity in a given Member State is already the subject of a procedure under this Article, further requests concerning the same activity in the same Member State before the expiry of the period opened in respect of the first request shall not be considered as new procedures and shall be trea…
+ 
+ The Commission shall adopt detailed rules for applying paragraphs 4, 5 and 6 in accordance with the procedure under Article 68(2).
+ 
+ These rules shall include at least:
+ 
+ (a) the publication in the Official Journal, for information, of the date on which the three-month period referred to in the first subparagraph begins, and, in case this period is prolonged, the date of prolongation and the period by which it is prolonged;
+ 
+ (b) publication of the possible applicability of paragraph 1 in accordance with the second or third subparagraph of paragraph 4 or in accordance with the fourth subparagraph of paragraph 5; and
+ 
+ (c) the arrangements for forwarding positions adopted by an independent authority that is competent in the activity concerned, regarding questions relevant to paragraphs 1 and 2.
+ 
+ ## CHAPTER III / Rules applicable to service contracts
+ 
+ ### Article 31 — Service contracts listed in Annex XVII A
+ 
+ Contracts which have as their object services listed in Annex XVII A shall be awarded in accordance with Articles 34 to 59.
+ 
+ ### Article 32 — Service contracts listed in Annex XVII B
+ 
+ Contracts which have as their object services listed in Annex XVII B shall be governed solely by Articles 34 and 43.
+ 
+ ### Article 33 — Mixed service contracts including services listed in Annexes XVII A and services listed in Annex XVII B
+ 
+ Contracts which have as their subject-matter services listed both in Annex XVII A and in Annex XVII B shall be awarded in accordance with Articles 34 to 59 where the value of the services listed in Annex XVII A is greater than the value of the services listed in Annex XVII B. In other cases, contrac…
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