Közbeszerzési Hatóság

7. §

7. §

1.         For the purposes of this Act, in the course of procurements conducted by public service providers with the aim of performing their public service activity, economic operators which are not subject to Article 5(1) and which pursue one of the public service activities under Article 6(1)-(2) or were established for the purpose of pursuing such activity qualify as contracting entities, provided that one or more entitity (entities) referred to in Article 5(1) can exercise, either separately or together, a dominant influence over them.

2.         For the purposes of this Act, in the course of procurements conducted by public service providers with the aim of performing their public service activity, economic operators which are not subject to Article 5(1) or paragraph 1 and which pursue one or more of the public service activities under Article 6(1)-(2) on the basis of special or exclusive rights, qualify as contracting entities.

3.         For the purposes of paragraph 1 and 2, an activity shall not be considered to be a public service activity, if

  1. the production of gas or heat by the contracting entity concerned is the unavoidable consequence of carrying out an activity other than its public service activity and, furthermore, the supply to the public network is aimed only at the economic exploitation of such production and amounts to not more than 20 % of the contracting entity’s turnover on the basis of the average for the preceding three years, including the current year;
  2. the production of electricity or drinking water by the contracting entity concerned takes place because the consumption of electricity or drinking water is necessary for carrying out an activity other than its public service activity and, furthermore, supply to the public network depends only on that contracting entity’s own consumption and has not exceeded 30 % of that contracting entity’s total production of energy or drinking water, on the basis of the average for the preceding three years, including the current year.

4.         For the purposes of paragraph 2, ‘special or exclusive rights’ means rights based on a legislative or administrative provision (administrative authorisation) the effect of which is to limit the conduct of public service activities defined in Article 6(1)-(2) to one entity or a limited number of entities, and which substantially affects the ability of other entities to carry out such activity.

5.         Rights which have been granted by means of a procedure in which adequate publicity has been ensured and where the granting of those rights was based on objective criteria shall not constitute special or exclusive rights within the meaning of paragraph 2. Such procedures include:

  1. authorisation procedure concerning activities in the natural gas industry under the Act on Natural Gas Supply;
  2. authorisation or tendering procedure concerning the establishment of new power generation capacities (power plants) under the Act on Electricity;
  3. authorisation of the provision of a postal service subject to authorisation under the Act on Postal Services
  4. the authorisation of prospecting, exploration and extraction of hydrocarbons under the Mining Act;
  5. procurement procedures for public passenger transport services by bus, tram, railway or metro under Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos  1191/69 and 1107/70, provided that the procurement procedures in question comply with Article 4(3)-(4) and Article 5(3) of the abovementioned Regulation.