Public procurement

The main objectives of the EEA rules on public procurement are to ensure that public funds are spent in the most effective manner, according to the principle of “best value for money”, and to enhance cross-border competition for public contracts in the EEA.

The EEA rules on public procurement require public entities in EEA countries to follow certain procedures when buying goods, services or works that exceed certain values. These procedures must guarantee transparency and equal treatment of all potential suppliers in the EEA and allow them equal access to public contracts in other EEA countries. As a rule, such contracts are announced in the Tenders Electronic Daily (TED).

Applications for an exemption from public procurement rules for activities directly exposed to competition in the utilities sector

According to EEA rules on public procurement, the provisions of Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors should not apply to activities directly exposed to competition on markets to which access is not restricted.

EEA EFTA States or, where national legislation provides for it, the contracting authority, may therefore submit a request to ESA aimed at establishing fulfilment of the conditions set out above. ESA will carry out the necessary competition assessment with a deadline within generally 90 or 130 working days, with potential extensions depending on the specific circumstances of the case.

Requests should be complete and may be accompanied by a reasoned and substantiated position, adopted by an independent national authority competent in the activity concerned (e.g. a national competition authority or national telecommunications regulator), which thoroughly analyses the conditions for the possible applicability of an exemption. However, the final decision on whether an exemption from public procurement rules is to be granted is incumbent upon ESA. The administrative procedure is free of charge; ESA does not claim any fees.

In the interests of effective administration, applicants are strongly advised to conduct pre-notification discussions with ESA, where the matter would be discussed informally. During these discussions, ESA would inform the potential applicant about the information to be provided and discuss with them the competition situation in the respective sector. ESA would further assess whether a specific draft application would comply with the legal requirements and discuss the likelihood of success in order to avoid unnecessary work.

During the formal procedure, i.e. once the application has been submitted, ESA may request information from national authorities, competitors, etc., based on the instruments available to it in the area of EEA competition law. The procedure foresees cooperation with the European Commission where necessary.

Requests or queries should be sent to registry@eftasurv.int. Where it is permissible pursuant to Article 1(4) of the detailed rules applicable to the procedure for granting an exemption, requests may be sent in triplicate to EFTA Surveillance Authority, Avenue des Arts 19H, 1000 Brussels, Belgium.

Decisions adopted by ESA exempting certain activities from the application of public procurement rules

EFTA Surveillance Authority Delegated Decision No 042/19/COL of 17 June 2019, exempting the operation of public bus transport services in Norway from the application of Directive 2014/25/EU.

EFTA Surveillance Authority Decision No 277/15/COL of 6 July 2015, exempting certain logistics services of Posten Norge AS from the application of Directive 2004/17/EC.

EFTA Surveillance Authority Decision No 178/13/COL of 30 April 2013, exempting the exploration and extraction of crude oil and natural gas on the Norwegian Continental Shelf from the application of Directive 2004/17/EC (Oil/Gas).

EFTA Surveillance Authority Decision No 189/12/COL of 22 May 2012, exempting the production and wholesale of electricity in Norway from the application of Directive 2004/17/EC

Public procurement

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