PART 1GENERAL

CHAPTER 1CITATION, COMMENCEMENT, EXTENT, DEFINITIONS AND SUBJECT-MATTER

UtilitiesI14

1

For the purpose of these Regulations, a utility is a person which—

a

is a contracting authority or public undertaking and which pursues one of the activities referred to in regulations 8 to 14;

b

is not a contracting authority or public undertaking but whose activities include an activity referred to in regulations 8 to 14 which operate on the basis of special or exclusive rights granted by a competent authority.

2

In this regulation, “public undertaking” means a person over which one or more contracting authorities are able to exercise, directly or indirectly, a dominant influence by virtue of one or more of the following—

a

their ownership of that person;

b

their financial participation in that person;

c

the rights accorded to them by the rules which govern that person.

3

For the purposes of paragraph (2), a contracting authority is considered to be able to exercise a dominant influence over a person in any one or more of the following cases where it, directly or indirectly—

a

possesses the majority of the undertaking’s subscribed capital;

b

controls the majority of the voting power attached to the issued share capital of that person;

c

can appoint—

i

more than half of the individuals who are ultimately responsible for managing that person’s affairs;

ii

more than half of its members; or

iii

in the case of a group of individuals, more than half of those individuals.

4

In this regulation, “special or exclusive rights” mean rights granted by a competent authority by way of any legislative, regulatory or administrative provision, the effect of which is to limit the exercise of activities specified in regulations 8 to 14 to one or more entities, and which substantially affects the ability of other entities to carry out such activity.

5

For the purposes of paragraph (4), rights do not constitute “special or exclusive rights” if they are granted by means of a procedure in which—

a

there was adequate publicity; and

b

the granting of those rights was based on objective criteria.

6

The procedures referred to in paragraph (5) include—

a

procurement with a prior call for competition in accordance with—

i

these Regulations or the Utilities Contracts (Scotland) Regulations 201225;

ii

the Public Contracts (Scotland) Regulations or the Public Contracts (Scotland) Regulations 201226;

iii

the Concession Contracts Directive; or

iv

the Defence and Security Regulations; and

b

procedures in accordance with other legal acts of the EU as mentioned in Annex II of the Utilities Contracts Directive, as amended from time to time.