PART 2 E+W+N.I.Scope and principles

CHAPTER 2E+W+N.I.Exclusions

General exclusionsE+W+N.I.

Exclusive rights

10.—(1) These Regulations do not apply to services concession contracts awarded to a contracting authority or to a utility referred to in regulation 5(1)(a), or to an association of such contracting authorities or utilities, on the basis of an exclusive right.

(2) These Regulations do not apply to services concession contracts awarded to an economic operator on the basis of an exclusive right that has been granted [F1for the exercise of one of the] activities listed in Schedule 2.

(3) But where the [F2exclusive right was not granted following the application of] sector-specific transparency obligations, regulation 32 applies.

Transport services

(4) These Regulations do not apply to concession contracts for—

(a)air transport services based on the [F3economic operator’s status as a qualifying air carrier] within the meaning of Regulation (EC) No 1008/2008 of the European Parliament and of the Council M1 as amended from time to time; or

(b)public passenger transport services within the meaning of Regulation (EC) No 1370/2007 of the European Parliament and of the Council M2 as amended from time to time.

Concession contracts awarded pursuant to international rules

(5) These Regulations do not apply to concession contracts which the contracting authority or utility is obliged to award in accordance with procedures which are different from those laid down by these Regulations and are established by F4...—

(a)a legal instrument creating international law obligations, such as an international agreementF5... between [F6the United Kingdom and one or more other] countries (or subdivisions of such countries) and covering works, supplies or services intended for the joint implementation or exploitation of a project by its signatories;

F7(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F8(6) These Regulations do not apply to a relevant international concession contract in a case where the applicable procurement rules restrict the participation of economic operators in the procedure.

(6A) In the case of a relevant international concession contract where the applicable procurement rules do not restrict the participation of economic operators in the procedure, the only regulation that applies is regulation 8 (equal treatment of economic operators).]

F9(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) Paragraphs (5) to [F10(6A)] do not apply to concession contracts in the fields of defence and security as referred to in Directive 2009/81/EC of the European Parliament and of the Council M3.

[F11(8A) In this regulation, “relevant international concession contract” means a concession contract that—

(a)the contracting authority or utility awards in accordance with procurement rules provided by an international organisation or international financing institution, and

(b)is fully financed, or co-financed for the most part, by that organisation or institution.]

Defence and security concession contracts

(9) These Regulations do not apply to concession contracts in the fields of defence and security as referred to in Directive 2009/81/EC—

(a)which are governed by specific procedural rules pursuant to an international agreement or arrangement concluded between [F12the United Kingdom] and one or more [F13other] countries;

(b)which are governed by specific procedural rules pursuant to a concluded international agreement or arrangement relating to the stationing of troops and concerning the undertakings of [F14the United Kingdom or another] country;

(c)which are governed by specific procedural rules of an international organisation purchasing for its purposes or which must be awarded by [F15the United Kingdom] in accordance with those rules;

(d)in relation to which the application of these Regulations would oblige the United Kingdom to supply information the disclosure of which it considers contrary to the essential interests of its security or the procurement and performance of which is classified as secret or must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in any part of the United Kingdom, provided that the United Kingdom has determined that the essential interests concerned cannot be guaranteed by less intrusive measures, such as those referred to in paragraph (10);

(e)awarded in the framework of a cooperative programme referred to in regulation 7(1)(c) of the Defence and Security Regulations;

(f)awarded by a government to another government relating to works and services directly linked to military equipment or sensitive equipment, or works and services specifically for military purposes, or sensitive works and sensitive services (and in this sub-paragraph “government” means the State, regional or local government of a member State or a State which is not a member State);

(g)awarded in a [F16country other than the United Kingdom or Gibraltar], to be carried out when forces are deployed outside the [F17United Kingdom and Gibraltar] where operational needs require those concession contracts to be concluded with economic operators located in the area of operations.

Protection of essential security interests

(10) These Regulations do not apply to concession contracts not otherwise exempted by paragraph (9)(d) to (g) to the extent that the protection of the essential security interests of the United Kingdom F18... cannot be guaranteed by less intrusive measures, for example by imposing requirements aimed at protecting the confidential nature of information which the contracting authority or utility makes available in a concession contract award procedure as provided for in these Regulations.

Other exclusions

(11) These Regulations do not apply to services concession contracts for—

(a)the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or which concern interests in or rights over any of them;

(b)(i)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 providers, or

(ii)broadcasting time or programme provision that are awarded to audiovisual or radio media service providers;

(c)arbitration or conciliation services;

(d)any of the following legal services—

(i)legal representation of a client by a lawyer F19... in—

(aa)an arbitration or conciliation held in [F20the United Kingdom, another] country or before an international arbitration or conciliation instance, or

(bb)judicial proceedings before the courts, tribunals or public authorities of [F21the United Kingdom or another] country, or before international courts, tribunals or institutions;

(ii)legal advice given—

(aa)in preparation of any of the proceedings referred to in paragraph (i), or

(bb)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 F22...

(iii)document certification and authentication services which must be provided by notaries;

(iv)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 [F23United Kingdom] or are designated by law to carry out specific tasks under the supervision of such tribunals or courts;

(v)other legal services which in the [F24United Kingdom] are connected, even occasionally, with the exercise of official authority;

(e)(i)financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council M4 as amended from time to time,

(ii)central bank services, or

(iii)operations conducted with the European Financial Stability Facility and the European Stability Mechanism;

(f)loans, whether or not in connection with the issue, sale, purchase or transfer of securities or other financial instruments;

(g)civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations, and which are covered by CPV codes: 75250000-3, 75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8, 98113100-9 and 85143000-3 except patient transport ambulance services; or

(h)political campaign services which are covered by CPV codes 79341400-0, 92111230-3 and 92111240-6, when awarded by a political party in the context of an election campaign.

(12) In this regulation—

(a)“audiovisual media services” and “media service providers” have, respectively, the meanings given by Articles 1(1)(a) and 1(1)(d) of Directive 2010/13/EU of the European Parliament and of the Council M5 as amended from time to time;

[F25(aa)“lawyer” means a person practising as an advocate, barrister or solicitor in any part of the United Kingdom or in Gibraltar;]

(b)“programme” has the meaning given by Article 1(1)(b) of that Directive as amended from time to time, but also includes radio programmes and radio programme materials; and

(c)“programme material” has the same meaning as “programme”.

Lottery services

(13) These Regulations do not apply to services concession contracts for lottery services which are covered by CPV code 92351100-7 and awarded to an economic operator on the basis of an exclusive right granted otherwise than as described in regulation 5(2).

Activities in a third country

(14) These Regulations do not apply to concession contracts awarded by utilities for the pursuit of their activities in a [F26country other than the United Kingdom], in conditions not involving the physical use of a network or geographical area within the [F27United Kingdom].