{"id":900,"date":"2021-06-21T21:49:56","date_gmt":"2021-06-21T21:49:56","guid":{"rendered":"http:\/\/legalblog.ie\/?p=900"},"modified":"2021-06-21T21:49:56","modified_gmt":"2021-06-21T21:49:56","slug":"exclusions","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/exclusions\/","title":{"rendered":"Exclusions"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/exclusions\/#Contracts_in_the_water_energy_transport_and_postal_services_sectors\" title=\"Contracts in the water, energy, transport and postal services sectors\">Contracts in the water, energy, transport and postal services sectors<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/exclusions\/#Specific_exclusions_in_the_field_of_electronic_communications\" title=\"Specific exclusions in the field of electronic communications\">Specific exclusions in the field of electronic communications<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/exclusions\/#Public_contracts_awarded_and_design_contests_organised_pursuant_to_international_rules\" title=\"Public contracts awarded and design contests organised pursuant to international rules\">Public contracts awarded and design contests organised pursuant to international rules<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/exclusions\/#Specific_exclusions_for_service_contracts\" title=\"Specific exclusions for service contracts\">Specific exclusions for service contracts<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/exclusions\/#Service_contracts_awarded_on_the_basis_of_an_exclusive_right\" title=\"Service contracts awarded on the basis of an exclusive right\">Service contracts awarded on the basis of an exclusive right<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/exclusions\/#Public_contracts_between_entities_within_the_public_sector\" title=\"\nPublic contracts between entities within the public sector\">\nPublic contracts between entities within the public sector<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Contracts_in_the_water_energy_transport_and_postal_services_sectors\"><\/span>Contracts in the water, energy, transport and postal services sectors<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Directive does not apply to public contracts and design contests which are awarded or organised by contracting authorities exercising one or more specified activities and are awarded for the pursuit of those activities, to certain excluded public contracts or, when awarded by a contracting authority which provides postal services to contracts awarded for the pursuit of the following activities:<\/p>\n<p>* added value services linked to and provided entirely by electronic means (including the secure transmission of coded documents by electronic means, address management services and transmission of registered electronic mail);<\/p>\n<p>* certain financial services including in particular postal money orders and postal giro transfers;<\/p>\n<p>* philatelic services; or<\/p>\n<p>* logistics services (services combining physical delivery and\/or warehousing with other non-postal functions).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Specific_exclusions_in_the_field_of_electronic_communications\"><\/span>Specific exclusions in the field of electronic communications<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Directive shall not apply to public contracts and design contests for the principal purpose of permitting the contracting authorities to provide or exploit public communications networks or to provide to the public one or more electronic communications services.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Public_contracts_awarded_and_design_contests_organised_pursuant_to_international_rules\"><\/span>Public contracts awarded and design contests organised pursuant to international rules<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Directive shall not apply to public contracts and design contests which the contracting authority is obliged to award or organise in accordance with procurement procedures different from those laid down in the Directive established by any of the following:<\/p>\n<p>* a legal instrument creating international law obligations, such as an international agreement, concluded in conformity with the Treaties, between a Member State and one or more third countries or subdivisions thereof and covering works, supplies or services intended for the joint implementation or exploitation of a project by their signatories;<\/p>\n<p>* an international organisation.<\/p>\n<p>The Member States shall communicate all legal instruments referred to in the first point above to the Commission, which may consult the Advisory Committee on Public Procurement.<\/p>\n<p>The Directive shall not apply to public contracts and design contests which the contracting authority awards or organises in accordance with procurement rules provided by an international organisation or international financing institution, where the public contracts and design contests concerned are fully financed by that organisation or institution; in the case of public contracts and design contests co-financed for the most part by an international organisation or international financing institution the parties shall agree on applicable procurement procedures.<\/p>\n<p>3. Article 17 shall apply to contracts and design contests involving defence or security aspects which are awarded or organised pursuant to international rules. Paragraphs 1 and 2 of this Article shall not apply to those contracts and design contests.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Specific_exclusions_for_service_contracts\"><\/span>Specific exclusions for service contracts<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Directive shall not apply to public service contracts for:<\/p>\n<p>* the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or concerning rights thereon;<\/p>\n<p>* the acquisition, development, production or co-production of programme material intended for audiovisual media services or radio media services, that are awarded by audiovisual or radio media service providers, or contracts for broadcasting time or programme provision that are awarded to audiovisual or radio media service providers.<\/p>\n<p>* arbitration and conciliation services;<\/p>\n<p>* financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments, central bank services and operations conducted with the European Financial Stability Facility and the European Stability Mechanism;<\/p>\n<p>* loans, whether or not in connection with the issue, sale, purchase or transfer of securities or other financial instruments;<\/p>\n<p>* employment contracts;<\/p>\n<p>* civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations, and which are covered by certain CPV codes except patient transport ambulance services;<\/p>\n<p>* public passenger transport services by rail or metro;<\/p>\n<p>* political campaign services covered by certain CPV codes when awarded by a political party in the context of an election campaign.<\/p>\n<p>It does not apply to any of the following legal services:<\/p>\n<p>* legal representation of a client by a lawyer in:<\/p>\n<p>\u2014 an arbitration or conciliation held in a Member State, a third country or before an international arbitration or conciliation instance; or<\/p>\n<p>\u2014 judicial proceedings before the courts, tribunals or public authorities of a Member State or a third country or before international courts, tribunals or institutions;<\/p>\n<p>* legal advice given in preparation of any of the proceedings referred to in point (i) of this point or where there is a tangible indication and high probability that the matter to which the advice relates will become the subject of such proceedings, provided that the advice is given by a lawyer;<\/p>\n<p>* document certification and authentication services which must be provided by notaries;<\/p>\n<p>* legal services provided by trustees or appointed guardians or other legal services the providers of which are designated by a court or tribunal in the Member State concerned or are designated by law to carry out specific tasks under the supervision of such tribunals or courts;<\/p>\n<p>* other legal services which in the Member State concerned are connected, even occasionally, with the exercise of official authority;<\/p>\n<p>&nbsp;<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Service_contracts_awarded_on_the_basis_of_an_exclusive_right\"><\/span>Service contracts awarded on the basis of an exclusive right<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Directive shall not apply to public service contracts awarded by a contracting authority to another contracting authority or to an association of contracting authorities on the basis of an exclusive right which they enjoy pursuant to a law, regulation or published administrative provision which is compatible with the TFEU.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Public_contracts_between_entities_within_the_public_sector\"><\/span>\nPublic contracts between entities within the public sector<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A public contract awarded by a contracting authority to a legal person governed by private or public law shall fall outside the scope of the Directive where all of the following conditions are fulfilled:<\/p>\n<p>* the contracting authority exercises over the legal person concerned a control which is similar to that which it exercises over its own departments;<\/p>\n<p>* more than 80 % of the activities of the controlled legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authority or by other legal persons controlled by that contracting authority; and<\/p>\n<p>* there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.<\/p>\n<p>A contracting authority shall be deemed to exercise over a legal person a control similar to that which it exercises over its own departments within the meaning of point (a) of the first subparagraph where it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person. Such control may also be exercised by another legal person, which is itself controlled in the same way by the contracting authority.<\/p>\n<p>The above applies where a controlled legal person which is a contracting authority awards a contract to its controlling contracting authority, or to another legal person controlled by the same contracting authority, provided that there is no direct private capital participation in the legal person being awarded the public contract with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.<\/p>\n<p>A contracting authority, which does not exercise over a legal person governed by private or public law control within the meaning of paragraph 1, may nevertheless award a public contract to that legal person without applying the Directive where all of the following conditions are fulfilled.<\/p>\n<p>* the contracting authority exercises jointly with other contracting authorities a control over that legal person which is similar to that which they exercise over their own departments;<\/p>\n<p>* more than 80 % of the activities of that legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authorities or by other legal persons controlled by the same contracting authorities; and<\/p>\n<p>* there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.<\/p>\n<p>For the purposes of the first point, contracting authorities exercise joint control over a legal person where all of the following conditions are fulfilled:<\/p>\n<p>* the decision-making bodies of the controlled legal person are composed of representatives of all participating contracting authorities. Individual representatives may represent several or all of the participating contracting authorities;<\/p>\n<p>* those contracting authorities are able to jointly exert decisive influence over the strategic objectives and significant decisions of the controlled legal person; and<\/p>\n<p>* the controlled legal person does not pursue any interests which are contrary to those of the controlling contracting authorities.<\/p>\n<p>A contract concluded exclusively between two or more contracting authorities shall fall outside the scope of the Directive where all of the following conditions are fulfilled:<\/p>\n<p>* the contract establishes or implements a cooperation between the participating contracting authorities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common;<\/p>\n<p>* the implementation of that cooperation is governed solely by considerations relating to the public interest; and<\/p>\n<p>* the participating contracting authorities perform on the open market less than 20 % of the activities concerned by the cooperation.<\/p>\n<p>For the determination of the percentage of activities referred to above, the average total turnover, or an appropriate alternative activity-based measure such as costs incurred by the relevant legal person or contracting authority with respect to services, supplies and works for the three years preceding the contract award shall be taken into consideration.<\/p>\n<p>Where, because of the date on which the relevant legal person or contracting authority was created or commenced activities or because of a reorganisation of its activities, the turnover, or alternative activity based measure such as costs, are either not available for the preceding three years or no longer relevant, it shall be sufficient to show that the measurement of activity is credible, particularly by means of business projections.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-900\" data-postid=\"900\" class=\"themify_builder_content themify_builder_content-900 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Contracts in the water, energy, transport and postal services sectors The Directive does not apply to public contracts and design contests which are awarded or organised by contracting authorities exercising one or more specified activities and are awarded for the pursuit of those activities, to certain excluded public contracts or, when awarded by a contracting [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[59],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/900"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=900"}],"version-history":[{"count":1,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/900\/revisions"}],"predecessor-version":[{"id":901,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/900\/revisions\/901"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=900"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=900"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=900"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}