Schedule 4. Activities exercised by Contracting Entities

The provisions of these regulations governing concessions awarded by contracting entities shall apply to the following activities:

1. As far as gas and heat are concerned:

(a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of gas or heat;

(b) the supply of gas or heat to such fixed networks.

The supply by a contracting entity, as defined under regulations 2(2)(b) and (c), of gas or heat to fixed networks which provide a service to the public shall not be considered to be a relevant activity within the meaning of paragraph 1 where all of the following conditions are met:

(i) the production of gas or heat by that contracting entity is the unavoidable consequence of carrying out an activity other than those referred to in this sub-paragraph or in paragraphs 2 and 3 of this Schedule;

(ii) the supply to the public network is aimed only at the economic exploitation of such production and amounts to not more than twenty per cent of that contracting entity’s turnover on the basis of the average for the preceding three years, including the current year.

For the purposes of these regulations, ‘supply’ includes the generation/production, wholesale and retail sale of gas. However, production of gas in the form of extraction falls within the scope of paragraph 4 of this Schedule.

2. As far as electricity is concerned:

(a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of electricity;

(b) the supply of electricity to such fixed networks.

For the purposes of these regulations, supply of electricity includes generation/production, wholesale and retail sale of electricity.

The supply by a contracting entity referred to in paragraphs (b) and (c) of the definition of the term "contracting entity" under regulation 2(2) of electricity to networks which provide a service to the public shall not be considered to be a relevant activity within the meaning of paragraph 1 of this schedule where all of the following conditions are met:

(a) the production of electricity by that contracting entity takes place because its consumption is necessary for carrying out an activity other than those referred to in this sub-paragraph or in paragraphs 1 and 3 of this Schedule;

(b) supply to the public network depends only on that contracting entity’s own consumption and has not exceeded thirty per cent of that contracting entity’s total production of energy, on the basis of the average for the preceding three years, including the current year.

3. Activities relating to the provision or operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable.

As regards transport services, a network shall be considered to exist where the service is provided under operating conditions laid down by a competent authority, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service.

4. Activities relating to the exploitation of a geographical area for the purpose of the provision of airports and maritime or inland ports or other terminal facilities to carriers by air, sea or inland waterway.

5. Activities relating to the provision of:

(a) postal services;

(b) other services than postal services, on condition that such services are provided by an entity which also provides postal services within the meaning of sub-paragraph (ii) and provided that the conditions set out in regulation 27 of the Public Procurement of Entities operating in Water, Energy, Transport and Postal Services Sectors Regulations are not satisfied in respect of the services falling within sub-paragraph (ii).

For the purpose of these regulations and without prejudice to relevant legislation transposing Directive 97/67/EC:

(i) ‘postal item’ means an item addressed in the final form in which it is to be carried, irrespective of weight. In addition to items of correspondence, such items also include for instance books, catalogues, newspapers, periodicals and postal packages containing merchandise with or without commercial value, irrespective of weight;

(ii) ‘postal services’ means services consisting of the clearance, sorting, routing and delivery of postal items. This shall include both services falling within as well as services falling outside the scope of the universal service set up in conformity with the legislation transposing Directive 97/67/EC;

(iii) ‘other services than postal services’ means services provided in the following areas:

- mail service management services (services both preceding and subsequent to despatch, including ‘mailroom management services’),

- services concerning postal items not included in sub-paragraph (a), such as direct mail bearing no address. 6. Activities relating to the exploitation of a geographical area for the purpose of: (a) extracting oil or gas; (b) exploring for, or extracting, coal or other solid fuels.