Specific utilities markets in certain countries may be exempt from public procurement rules. This page contains information on which markets in which EU countries are exempt, as well as the state of play regarding pending requests for exemption.
For a utilities market to be exempt
- the legal/regulatory environment permits access and competition in the sector concerned
- the utility operators in the market concerned are subject to competitive pressure
Exemption requests should be sent by email to GROW-ART-34ec [dot] europa [dot] eu (GROW-ART-34[at]ec[dot]europa[dot]eu).
If the requests are to be delivered by other means (see Article 1(4) of the detailed rules), three copies should be sent by post or other suitable carrier to
Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs
Directorate G: Single Market for Public Administrations
When can a utility market be exempt from EU public procurement rules
Utilities (water, energy, transport and postal services) are essential for the smooth functioning of our economy and social development. In principle, utilities must respect EU Public Procurement rules (make their purchases through public tenders). This requirement can be lifted however and the utility can make purchases without applying the detailed rules of the Utilities Directive (e.g. in the procurement of electricity production in a given area) when competition in the specific national utilities is functioning well and access to the market is not restricted in the sector concerned (access has been liberalised and there is substantial competition).
A new Implementing Decision adopted under the EU Procurement Directive for Utilities (Directive 2014/25/EU) defines how EU countries or utilities can make their request for exemption if they want to be allowed to not follow EU public procurement rules. This decision includes what information must be supplied, how transparency should be ensured through notices in the Official Journal about requests throughout the procedure, etc.
The Implementing Decision replaces and updates a corresponding decision from 2005 (Decision 2005/15/EC). It facilitates requests for exemption by providing a template for the information to be provided on the market to be exempted and on its exposure to competition, which must both be supported by appropriate empirical evidence.
The update of the Implementing Decision is the result of some changes to procedural rules governing exemptions in the new public procurement directives (e.g. the possibility to change a request for exemption, by for instance reducing its scope, without having to start over again). To date, the Commission has received 34 formal exemption requests.
On 10 October 2016, the Commission adopted Implementing Decision (EU) 2016/1804. This Decision is published in the Official Journal of the European Union of 10 October 2016, number L 275, p. 39. It sets out detailed rules for the application of Articles 34 and 35 of Directive 2014/25/EU of the European Parliament and of the Council on procurement by entities operating in the water, energy, transport and postal services sectors.
- Exemption requested on 3 November 2016 (2017/C 23/10)
- Deadline extended until 6 September 2017 (2017/C 167/09)
- Deadline extended until 29 November 2017 (2017/C 276/04)
- Deadline extended until 3 January 2018 (2017/C 396/13)
- Deadline extended until 31 March 2018 (2017/C 439/08)
- Suspension of the deadline (2018/C 114/12)
- Deadline extended until 5 July 2018 (2018/C 233/11)
- Exemption decision 2018/1134 (5 July 2018)