Article 143. Activities directly exposed to competition.

1. The provisions of the code do not apply to contracts to carry out an activity referred to in articles 146 to 152 if the activity is directly exposed to competition on freely accessible markets. The activity may form part of a larger sector or be carried out only in certain parts of the national territory. 2. The assessment of exposure to competition for the purposes of paragraph 1 is carried out by the European Commission, taking into account the market of activities in question and the geographical market of reference, pursuant to paragraphs 3 and 4. The application of competition legislation remains unaffected. 3. For the purposes of paragraphs 1 and 2, to determine whether an activity is directly exposed to competition criteria compliant with the provisions of the Treaty on the Functioning of the European Union in matters of competition are taken into account, including the characteristics of the products or services concerned, the existence of alternative products or services considered substitutable on the demand or supply side , prices and the actual or potential presence of multiple suppliers of the products or services in question. 4. The geographical reference market, on the basis of which exposure to competition is assessed, is made up of the territory where the companies involved operate in the supply and demand of products and services, and in which the conditions of competition are sufficiently homogeneous. It can be distinguished from neighboring territories, in particular by conditions of competition that are significantly different from those that prevail in those territories. The assessment shall take into account, in particular, the nature and characteristics of the products or services in question, the existence of barriers to entry or consumer preferences, as well as the existence of significant differences in terms of market shares of the undertakings or substantial differences in prices. 5. For the purposes of paragraph 1, freely accessible markets are those indicated in Annex III to Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014, for which the implementing measures have been adopted. If free access to a market cannot be presumed on the basis of the first sentence, it must be demonstrated that access to the market in question is free in fact and in law. 6. When, on the basis of the conditions referred to in paragraphs 3, 4 and 5, it is believed that a certain activity is directly exposed to competition on freely accessible markets, the President of the Council of Ministers, in agreement with the Minister responsible for the sector , may request the European Commission to establish that the provisions of the code do not apply to the awarding of contracts or the organization of design competitions for the pursuit of the activity in question, as well as to concessions; the Commission is informed of all relevant circumstances, in particular of the legislative, regulatory or administrative provisions or agreements in relation to compliance with the conditions referred to in paragraph 1, as well as any decisions taken in this regard by the competent independent authorities. The request may concern activities carried out in a broader sector or in certain parts of the national territory, if necessary attaching the position adopted by the competent independent Authority. 7. Contracting authorities and granting bodies may ask the European Commission to establish the applicability of paragraph 1 to a specific activity. Unless the request is accompanied by a reasoned and justified position, adopted by the competent independent authority, which illustrates in depth the conditions for the possible applicability of paragraph 1, following the information given by the Commission regarding the request, the The authority referred to in paragraph 6 communicates to the Commission the circumstances indicated in the aforementioned paragraph 1. 8. The provisions of the code no longer apply to the contracts referred to in paragraph 1 if the European Commission: a) has adopted an implementing act which establishes the applicability of paragraph 1 within the deadline set by Annex IV of Directive 2014/25/EU; b) has not adopted the implementing act within the deadline set by the Annex referred to in letter a). 9 The request presented pursuant to paragraphs 6 and 7 may be modified, with the consent of the European Commission, in particular with regard to the activities or geographical area involved. In this case, for the adoption of the implementing act referred to in paragraph 8, a new deadline applies, calculated pursuant to paragraph 1 of Annex IV of Directive 2014/25/EU, unless the European Commission agrees on a shorter term with the Authority or the contracting station or the granting body that submitted the request. 10. If an activity is already the subject of a procedure pursuant to paragraphs 6, 7 and 9, further requests regarding the same activities, received by the European Commission before the deadline for the first application expires, are not considered as new procedures and are examined in the framework of the first request. EFFECTIVE FROM: 1 July 2023