Procedure for establishing whether regulation 32(2)(b) is applicableS
33.—(1) The procedure referred to in regulation 32(2)(b) (activities directly exposed to competition) is as follows—
(a)the Scottish Ministers or a utility submit a request to the Commission, where appropriate together with the position adopted by an independent national authority that is competent in relation to the activity concerned, demonstrating that the activity in question is directly exposed to competition on markets to which access is not restricted on the basis of criteria that are in conformity with the provisions on competition of the TFEU; and
(b)the request must specify—
(i)all the relevant facts including any law, regulation, administrative provision or agreement concerning compliance with the condition that the activity is directly exposed to competition on markets to which access is not restricted;
(ii)that the activity concerned is subject to the EU legislation listed in Annex III to the Utilities Contracts Directive where it is and, if so, the request must also specify the relevant implementing legislation applied in the United Kingdom giving rise to a presumption that access to the market is not restricted;
(c)if free access to a given market cannot be presumed on the basis of paragraph (b)(ii), it must be demonstrated in the request referred to in sub-paragraph (b) that access to the market in question is free as a matter of fact and law;
(2) This paragraph applies if, subject to paragraph (8), the Commission—
(a)has adopted an implementing act establishing that the activity is directly exposed to competition on markets to which access is not restricted within the time limits specified in Annex IV to the Utilities Contracts Directive; or
(b)has not adopted an implementing act establishing whether or not the activity is directly exposed to competition on markets to which access is not restricted within the time limits specified in Annex IV to the Utilities Contracts Directive.
(3) The request referred to in paragraph (1)(a) and (b) may concern activities which are part of a larger sector or which are exercised in certain parts of the United Kingdom.
(4) The criteria referred to in paragraph (1)(a) may include—
(a)the characteristics of the products or services concerned;
(b)the existence of alternative products or services considered to be substitutable on the supply side or demand side;
(c)the prices; and
(d)the actual or potential presence of more than one supplier of the products or provider of the services in question;
(5) The geographical reference market on the basis of which exposure to competition is assessed shall consist of the area in which the utility concerned is involved in the supply and demand of products or services in which the conditions of competition—
(a)are sufficiently homogenous; and
(b)can be distinguished from neighbouring areas (including because conditions of competition are appreciably different in those areas).
(6) The assessment in paragraph (5) shall take into account, among other factors—
(a)the nature and characteristics of the products or services concerned;
(b)the existence of entry barriers;
(c)the existence of consumer preferences;
(d)appreciable differences of the utility’s market shares between the area concerned and neighbouring areas; and
(e)substantial price differences.
(7) After the submission of a request, the Scottish Ministers or the utility may, with the Commission’s agreement, substantially modify its request, including as regards the activities or the geographical area concerned.
(8) Where a request has been modified, a new period for the adoption of the implementing act shall be calculated in accordance with paragraph 1 of Annex IV to the Utilities Contracts Directive unless a shorter period is agreed on between the Commission and either the Scottish Ministers or the utility which has submitted the request.