1 All procuring entities whose procurement is covered by the EEA utilities directive which are contracting authorities (e.g. those covered under Annex 1 and Annex 2) or public undertakings1 and which have as one of their activities any of those referred to below or any combination thereof: show more/less
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 the supply of drinking water to such networks (as specified under title 1);
b 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 the supply of electricity to such networks (as specified under title 2);
c the provision or operation of networks2 providing a service to the public in the field of transport by urban railway, automated systems, tramway, trolleybus, bus or cable (as specified under title 3);
- 3 Procuring entities in the field of urban railway, automated systems, tramway, trolley bus, bus or cable services
1 This Agreement does not cover procurement which the procuring entity awards for purposes other than the pursuit of their activities as described in this Annex or for the pursuit of such activities in a non-EEA country.
b by a joint venture formed exclusively by a number of procuring entities for the purpose of carrying out a relevant activity within the meaning of paragraphs (a) to (f) of this Annex, to an undertaking which is affiliated with one of these procuring entities,
provided that at least 80 per cent of the average turnover of the affiliated undertaking with respect to goods, services or construction services for the preceding three years derives respectively from the provision of such services or goods 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 this paragraph is credible, in particular by means of business projections.
a by a joint venture, formed exclusively by a number of procuring entities for the purpose of carrying out activities of paragraphs (a) to (f) of this Annex, to one of these procuring entities; or
b by a procuring 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 procuring entities, which form it, will be part thereof for at least the same period.
4 This Agreement does not cover procurement for the purchase of water, the supply of energy or of fuels for the production of energy.
5 This Agreement does not cover procurement by procuring entities other than a public authority exercising the supply of drinking water or electricity to networks which provide a service to the public, if they produce these services by themselves and consume them for the purpose of carrying out other activities than those described under this Annex under (a) and (b) and provided that the supply to the public network depends only on the entity's own consumption and does not exceed 30 per cent of the entity's total production of drinking water or energy, having regard to the average for the preceding three years, including the current year.
6 This Agreement does not cover procurement for purposes of re-sale or hire to third parties, provided that the procuring entity enjoys no special or exclusive right to sell or hire the subject of such contracts and other entities are free to sell or hire it under the same conditions as the procuring entity.
7 This Agreement does not cover procurement by procuring entities providing a bus service if other entities are free to offer the same service either in general or in a specific geographical area and under the same conditions.
8 This Agreement does not cover procurement by procuring entities pursuing an activity described in this Annex when that activity is exposed to full market competition.
i production, transport or distribution of drinking water covered under this Annex in regard of suppliers and service providers of Australia, Canada and the United States of America;
ii electricity in regard of suppliers and service providers of Australia, Canada and Japan;
iii urban railway, tramway, trolley bus or bus services covered under this Annex in regard of goods, services, suppliers and service providers from Australia, Canada, Japan and the United States
iv bus services under this Annex in regard of suppliers and service providers from Australia, Israel and Korea;
b procurement by entities listed in this Annex as regards procurement of HS Nos 8504, 8535, 8537 and 8544 (electrical transformers, plugs, switches and insulated cables) in regard of suppliers of Israel and Korea; and HS Nos 85012099, 85015299, 85015199, 85015290, 85014099, 85015390 and 8536 in regard of suppliers of Israel;
c procurement by procuring entities covered under this Annex of air traffic control equipment in regard of suppliers and service providers from Australia and the United States;
d procurement of services in regard to Parties which do not include service contracts for the relevant entities in Annexes 1 to 3 and the relevant service category under this Annex in their own coverage;
until such time as the Principality of Liechtenstein has accepted that the Parties concerned provide satisfactory reciprocal access for goods, suppliers, services and service providers of the Principality of Liechtenstein to their own procurement market.
a Israel, Japan and Korea in contesting the award of contracts by entities of the Principality of Liechtenstein, whose value is less than the threshold applied for the same category of contracts awarded by these Parties;
b Australia, Japan, Korea and the United States of America in contesting the award of contracts to a supplier or service provider of Parties other than those mentioned, which are small- or medium-sized enterprises under the relevant provisions of the law of Liechtenstein until such time as the Principality of Liechtenstein accepts that they no longer operate discriminatory measures in favour of certain domestic small and minority businesses.
1 According to the EEA utilities directive, 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:
i. hold the majority of the undertaking's subscribed capital, or
ii. control the majority of the votes attaching to shares issued by the undertaking, or
iii. can appoint more than half of the undertaking's administrative, management or supervisory body.
2 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 an EEA Member State, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service.
3 "affiliated undertaking" means any undertaking the annual accounts of which are consolidated with those of the procuring entity in accordance with the requirements of Council Directive 83/349/EEC on consolidated accounts, or in case of entities not subject to that Directive, any undertaking over which the procuring entity may exercise, directly or indirectly, a dominant influence, or which may exercise a dominant influence over the procuring entity, or which, in common with the procuring entity, is subject to the dominant influence of another undertaking by virtue of ownership, financial participation, or the rules which govern it.