Art. 8. Exclusion of activities directly exposed to competition

1. Contracts intended to enable an activity mentioned in Articles 115 to 121, the design contests organized for the performance of such activity, as well as the concessions awarded by the contracting entity shall not be subject to this Code if the activity is directly exposed to competition on markets to which access is not restricted. The activity concerned may form a part of a larger sector or be exercised only in certain parts of the national territory. The competition assessment for the purposes of this Code shall be made by the European Commission taking into account the market for the activities in question and the geographical reference market, pursuant to paragraphs 2 and 3. This without prejudice to the application of competition law.

2. For the purposes of paragraph 1 in order to determine whether an activity is directly exposed to competition it is possible to take into account criteria that are in conformity with the provisions on competition of the Treaty on the Functioning of the European Union, including the characteristics of the products or services concerned, the existence of alternative products or services considered to be substitutable on the supply side or demand side, the prices and the actual or potential presence of more than one supplier of the products or provider of the services in question.

3. The geographical reference market, on the basis of which exposure to competition is assessed, shall consist of the area in which the undertakings concerned are involved in the supply and demand 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 from those prevailing in those areas. That assessment shall take account in particular of the nature and characteristics of the products or services concerned, of the existence of entry barriers or of consumer preferences, as well as of appreciable differences of the undertakings’ market shares between the area concerned and neighboring areas or of substantial price differences.

4. For the purposes of paragraph 1, markets with unrestricted access shall be considered as those indicated in Annex VI for whom the implementing provisions have been adopted. If free access to a given market cannot be presumed on the basis of the previous period, it must be demonstrated that access to the market in question is free de facto and de jure. Where it is not possible to presume the free access to a market on the basis of the previous period, it has to be demonstrated that the access to the market in question is free de facto and de jure.

5. Where on the basis of the conditions laid out in paragraphs 2, 3 and 4 it is believed that a given activity is directly exposed to competition in market whose access is not restricted, the President of the Council of Ministers, in accordance with the competent Ministry for the sector, may request to the European Commission to establish that the provisions in this Code do not apply to the award of contracts or the organization of design contests for the pursuit of that activity, as well as to concessions awarded by contracting entities, by informing the European Commission of all the relevant circumstances, in particular of the legislative, regulatory or administrative provisions or agreements relating to the respect of requirements referred to in paragraph 1, as well as of the potential decisions taken in that regard by the competent independent Authorities. The request may concern activities which are a part of a larger sector or which are exercised only in certain parts of the national territory, where appropriate by attaching the position adopted by the competent independent Authority.

6. Contracting entities may ask to the European Commission to establish the applicability of paragraph 1 to a certain activity. Unless a request coming from a contracting entity is accompanied by a reasoned and substantiated position, adopted by a competent independent Authority, which thoroughly analyses the conditions for the possible applicability of the abovementioned paragraph 1, after information given by the Commission in relation to that request, the Authority referred to in paragraph 5 shall notify the Commissions all the circumstances referred to in the abovementioned paragraph.

7. Contracts intended to enable the performance of the activity referred to in paragraph 1 and design contests that are organized for the pursuit of such an activity and concessions awarded by contracting entities shall cease to be subject to this Code if the European Commission:

a) has adopted the implementing act establishing the applicability of paragraph 1 within the period provided for in Annex VII;

b) has not adopted the implementing act within the period provided for in letter a) of the Annex referred to in letter a) of this paragraph.

8. The request presented according to paragraphs 5 and 6 may be modified, with the approval of the European Commission, in particular in reference to the activities or geographical areas concerned. In that case, for the adoption of the implementing act referred to in paragraph 7, a new period shall apply, calculated in accordance with paragraph 1 of Annex VII, unless the European Commission agrees on a shorter period with the Authority or contracting entity which has presented the request.

9. Where an activity is already the subject of a procedure under paragraphs 5, 6 and 8, further requests concerning the same activity brought to the European Commission before the expiry of the period opened in respect of the first request shall not be considered as new procedures and shall be treated in the context of the first request.