23.1.2004 Official Journal of the European Union L16/57 COMMISSION DECISION of 15 January 2004 on a request from Germany to apply the special procedure laid down in Article 3 of Directive 93/ 38/EEC (notified under document number C(2003) 5351) (Only the German text is authentic) (Text with EEA relevance) (2004/73[EC) THE COMMISSION OF THE EUROPEAN COMMUNITIES Having regard to the Treaty establishing the European Community, Having regard to Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors ('), as last amended by Commission Directive 2001/78/ EC (3), and in particular Article 3(4) thereof, Having regard to Directive 94/22[EC of the European Parlia- ment and of the Council of 30 May 1994 on the conditions for granting and using authorisations for the prospection, explora- tion and production of hydrocarbons (), and in particular Article 12 thereof, Following Germany's new application of 12 November 2002 (4, Having consulted the Advisory Committee on Public Procure- ment, Whereas: (1) Pursuant to Article 3 of Directive 93/38/EEC, a Member State may request the Commission to provide that exploitation of geographical areas for the purpose of exploring for or extracting oil, gas, coal or other solid fuels shall not be considered to be an activity defined in Article 2(2)(b)(i) and that entities shall not be considered as operating under special or exclusive rights within the meaning of Article 2(3)(b) by virtue of carrying on one or more of these activities, provided that certain condi- tions are satisfied with respect to the relevant national provisions concerning such activities, that the requesting Member State guarantees that the principles of non- discrimination and competitive procurement are observed in respect of the award of contracts, and that the Commission is informed of the award of these contracts. () OJ L 199, 9.8.1993, p. 84. () OJ L 285, 29.10.2001, p. 1. () OJ L 164, 30.6.1994, p. 3. (*) On 15 November 1991, Germany had initially made an application under Article 3 of Directive 90/531/EEC that the Commission had to reject because it was incomplete. The rule on legal protection set out in Section 57a of the Budgetary Principles Act (Haushaltsgrundsitzegesetz) was not deemed adequate for granting effective igal protection. This provision was not amended until 1998, with the adoption of part 4 of the Restriction of Competition Act (Gesetz gegen Wettbewerbsbeschrankungen). (2)  Member States that have fulfilled their obligations under Directive 94/22/EC are deemed to have met the require- ments set out in Article 3(1) of Directive 93/38/EEC with respect to oil and gas. ()  In its letter of 12 November 2002, Germany asked the Commission to adopt a Decision under Article 3 of Directive 93/38/EEC on the exploitation of geographical areas for the purpose of exploring for or extracting oil, gas, coal or other solid fuels. In this communication, Germany referred to a letter dated 15 November 1991 in which it had originally made an application under Article 3 of Directive 90/ 531/EEC (°), which was in force at the time. Article 3 of Directive 90/531/EEC and Article 3 of Directive 93/38/ EEC, which is currently in force, are entirely equivalent, except for the reference to Directive 94/22/EC and the legal assumption it implies. This application resulted in correspondence between the Commission and the Federal Republic of Germany. The Commission informed Germany of its initial find- ings in its letters of 9 July 1992 and 30 November 1992, asking for replies to a number of outstanding questions by a given date. In its letter of July 1992, the Commission pointed out that the Federal Mining Act (Bundesberggesetz) did not in itself satisfy all of the cumu- lative criteria laid down in Article 3(1). According to the wording of Article 3(1), the conditions should be set out and described in detail in national provisions having legal force. The Council and the Commission had, however, stipulated in the Council Protocol to Directive 90/531/EEC that the conditions and requirements could also be contained in laws or other general implementing instruments. A case-by-case examination of the condi- tions for authorisation referred to in Article 3(2) is not sufficient. Those conditions must also be laid down in laws or general implementing instruments. In its letter of November 1992, the Commission asked the German authorities to confirm that regulations adopted () OJ L 297, 29.10.1990, p. 1.