Article 2

1. This Directive shall apply to contracting entities which: (a)are public authorities or public undertakings and exercise one of the activities referred to in paragraph 2; (b)or, when they are not public authorities or public undertakings, have as one of their activities any of those referred to in paragraph 2 or any combination thereof and operate on the basis of special or exclusive rights granted by a competent authority of a Member State. 2. Relevant activities for the purposes of this Directive shall be: (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: (i)drinking water, or (ii)electricity, or (iii)gas or heat, or the supply of drinking water, electricity, gas or heat to such networks; (b)the exploitation of a geographical area for the purpose of: (i)exploring for or extracting oil, gas, coal or other solid fuels, or (ii)the provision of airport, maritime or inland port or other terminal facilities to carriers by air, sea or inland waterway; (c)the 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; (d)the provision or operation of public tele- communications networks or the provision of one or more public telecommunications services. 3. For the purpose of applying paragraph 1 (b), special or exclusive rights shall mean rights deriving from authorizations granted by a competent authority of the Member State concerned, by law, regulation or administrative action, having as their result the reservation for one or more entities of the exploitation of an activity defined in paragraph 2. A contracting entity shall be considered to enjoy special or exclusive rights in particular where: (a)for the purpose of constructing the networks or facilities referred to in paragraph 2, it may take advantage of a procedure for the expropriation or use of property or may place network equipment on, under or over the public highway; (b)in the case of paragraph 2 (a), the entity supplies with drinking water, electricity, gas or heat a network which is itself operated by an entity enjoying special or exclusive rights granted by a competent authority of the Member State concerned. 4. The provision of bus transport services to the public shall not be considered to be a relevant activity within the meaning of paragraph 2 (c) where other entities are free to provide those services, either in general or in a particular geographical area, under the same conditions as the contracting entities. 5. The supply of drinking water, electricity, gas or heat to networks which provide a service to the public by a contracting entity other than public authority shall not be considered as a relevant activity within the meaning of paragraph 2 (a) where: (a)in the case of drinking water or electricity: -the production of drinking water or electricity by the entity concerned takes place because its consumption is necessary for carrying out an activity other than that referred to in paragraph 2, and -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 or energy, having regard to the average for the preceding three years, including the current year; (b)in the case of gas or heat: -the production of gas or heat by the entity concerned is the unavoidable consequence of carrying on an activity other than that referred to in paragraph 2, and -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. 6. The contracting entities listed in Annexes I to X shall fulfil the criteria set out above. In order to ensure that the lists are as exhaustive as possible, Member States shall notify the Commission of amendments to their lists. The Commission shall revise Annexes I to X in accordance with the procedure in Article 32.

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Source: EUR-Lex (Cellar) · retrieved 2026-10-31 · Text as adopted (Official Journal); later amendments are not incorporated in this text.