Exclusion of services contracts awarded to affiliated undertakings
8.—(1) For the purposes of this regulation—
(a)an “affiliated undertaking” means
(i)in respect of a utility which is subject to the seventh Council Directive 83/349/EEC of 13 June 1983 on consolidated accounts(1), any undertaking the accounts of which are consolidated with those of that utility;
(ii)in any other case, any undertaking which is either a parent undertaking, a subsidiary undertaking or a fellow subsidiary undertaking of the utility, and
(aa)an undertaking is a parent undertaking of a utility if it exercises a dominant influence over it, directly or indirectly, and for these purposes an undertaking will exercise a dominant influence over another if—
(i)it possesses the greater part of the issued share capital of that undertaking or controls the majority of the voting power attached to the issued share capital of that undertaking, or
(ii)it may appoint more than half of the individuals who are ultimately responsible for managing the affairs of that company
and an undertaking is a subsidiary undertaking of a utility if the utility exercises such dominant influence over it;
(bb)an undertaking is a fellow subsidiary undertaking of a utility if both are subsidiary undertakings of the same parent undertaking.
(b)a “relevant affiliated undertaking” is one which has as one of its activities the provision of services and which provides those services principally to one or more of its affiliated undertakings: without prejudice to the determination of whether services are principally provided to affiliated undertakings in other cases, in the case of an undertaking which has been in existence for 36 months or more, it shall be taken to be so if, for the preceding 36 months, 80% or more of the average turnover of
(i)the undertaking, or
(ii)it and of any affiliated undertaking
in respect of the provision of services of the type or similar to those to be provided under the contract within member States was derived from the provision of those services to affiliated undertakings.
(2) These Regulations shall not apply to the seeking of offers in relation to a services contract which—
(a)a utility proposes to award to a relevant affiliated undertaking, or
(b)a joint venture formed for the purpose of carrying out any of the activities specified in the second column of Schedule 1 proposes to award to one of its members which is a utility or to a relevant affiliated undertaking of such a member.
(3) A utility which relies on the exclusion in paragraph (2) above, shall, if the Commission requests it, send to the Minister the following information—
(a)the names of the undertakings concerned;
(b)the value of the consideration and the type of services to be provided under any services contract so excluded;
(c)any information which is necessary to justify the use of the exclusion.
OJ No. L193, 18.7.83, p. 1 as amended by Council Directive 90/605/EEC (OJ No. L317, 16.11.90, p. 60).