23.1.2009 Official Journal of the European Union L 19/57 COMMISSION DECISION of 22 December 2008 establishing that Article 30(1) of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors is not applicable to the production of electricity in the Czech Republic (notified under document number C(2008) 8569) (Only the Czech text is authentic) (Text with EEA relevance) (2009/47[EC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (1), and in particular Article 30(4) and (6) thereof, Having regard to the request submitted by the Czech Republic by e-mail received on 3 July 2008, After consulting the Advisory Committee for Public Contracts, Whereas: L. FACTS (1)  On 3 July 2008, the Commission received a Czech request pursuant to Article 30(4) of Directive 2004/17EC, transmitted to the Commission by e-mail. The Commission requested additional information by e- mail of 26 September 2008, which was transmitted by the Czech authorities by e-mail of 9 October 2008. (2)  The request submitted by the Czech Republic concerns production of electricity. (3)  The request is accompanied by a letter from an inde- pendent national authority, (Energeticky regula¢ni tfad, the Czech energy regulatory authority), and by a letter from another independent authority (Ufad pro ochranu hospodéiské soutéze, the Czech Office for the Protection of Competition). Both of these authorities analyse the conditions of access to he relevant market, finding it to () OJ L 134, 30.4.2004, p. 1. ) ) 0 0 be unrestricted, while none of them establish that the further condition relating to the direct exposure to competition is met in respect of electricity production in the Czech Republic. II. LEGAL FRAMEWORK Article 30 of Directive 2004/17/EC provides that contracts intended to enable the performance of one of the activities to which the Directive applies shall not be subject to the Directive if, in the Member State in which it is carried out, the activity is directly exposed to compe- tition on markets to which access is not restricted. Direct exposure to competition is assessed on the basis of objective criteria, taking account of the specific characte- ristics of the sector concerned. Access is deemed to be unrestricted if the Member State has implemented and applied the relevant Community legislation opening a given sector or a part of it. This legislation is listed in Annex XI to Directive 2004/17[EC, which, for the elec- tricity sector, refers to Directive 96/92/EC of the European  Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity (). Directive 96/92/EC has been superseded by Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92[EC (3), which requires an even higher degree of market opening. The Czech Republic has implemented and applied not only Directive 96/92/EC but also Directive 2003/54/EC, opting for legal and organisational unbundling for trans- mission and distribution networks except for the smallest distribution companies, which, while continuing to be subject to accounting unbundling, are exempted from the requirements of legal and organisational unbundling having less than 100 000 customers or serving electricity systems with consumption lower than 3 TWh in 1996. Furthermore, the transmission system operator, CEPS, has been ownership unbundled. Consequently, and in accordance with the first subparagraph of Article 30(3), access to the market should be deemed not to be restricted. L 27, 30.1.1997, p. 20. L 176, 15.7.2003, p. 37.