L 197/20 Official Journal of the European Union 29.7.2011 COMMISSION IMPLEMENTING DECISION of 28 July 2011 exempting exploration for oil and gas and exploitation of oil in Denmark, excluding Greenland and the Faroe Islands, from the application 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 (notified under document C(2011) 5312) (Only the Danish text is authentic) (Text with EEA relevance) (2011/481/EU) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, 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), Having regard to the request submitted by the Kingdom of Denmark by e-mail of 26 May 2011, Whereas: I. FACTS (1)  On 26 May 2011, the Commission received a Danish request pursuant to Article 30(4) of Directive 2004/17[EC, transmitted to the Commission by e-mail. (2)  The request submitted by the Kingdom of Denmark concerns the exploration for oil and gas and exploitation of oil in Denmark, excluding Greenland and the Faroe Islands. In line with previous Commission Merger Decisions (3), two distinct activities have been described in the request, namely: (a) exploration for oil and natural gas; and (b) production of oil. In accordance with the above-mentioned Commission Decisions, ‘production’ will for the purposes of this Decision be taken to include also ‘development, i.e. the setting up of adequate infrastructure for future () OJ L 134, 30.4.2004, p. 1. () See in particular Commission Decision 2004/284[/EC  of 29 September 1999 declaring a concentration compatible with the common market and the EEA Agreement (Case No IV/M.1383 — Exxon/Mobil) and subsequent decisions, inter alia, Commission Decision of 3 May 2007 declaring a concentration to be compatible with the common market (Case No COMP/M.4545 — STATOIL/ HYDRO) according to Council Regulation (EEC) No 139/2004. production (oil platforms, pipelines, terminals, etc.). Furthermore, established Commission practice also found that ‘the development, production and sales of crude oil' constitutes ‘one relevant product market’ (?) Thus, for the purposes of this Decision, ‘production’ will be taken as including both ‘development’ as well as (first) sale oil. (3) 29 companies are participating as licensees or operators in Danish oil andfor gas concessions, with three operators being responsible for the current production of oil and gas. These are Marsk Olie og Gas A[S (Mersk’, operates 15 fields)) DONG E&P A[S (Dong’, operates 3 fields) and Hess Denmark ApS (Hess, operates 1 field) (*). Furthermore, Wintershall Nordzee B.V. and Altinex Oil Denmark A/S (NORECO), have as operators made discoveries in undeveloped fields with no present production. For reasons of risk-sharing, the normal management of exploration and exploitation activities is by means of joint venture agreements, in which one part is appointed as ‘operator and where the other parties to the joint venture obtain a pro-rata share to any oil and gas produced by the consortium. The non-operating participants have full control over where, when and to whom they sell and they are therefore at the same time partners and competitors of the operators. 4) The request is introduced, and thus endorsed, by Konkurrence- og  Forbrugerstyrelsen (the Danish Competition and Consumer Authority). II. LEGAL FRAMEWORK (5)  Article 30 of Directive 2004/17/EC provides that contracts intended to enable the performance of one of the activities to which Directive 2004/17/EC applies shall not be subject to that Directive if, in the Member State in which it is carried out, the activity is directly exposed to competition on markets to which access is not restricted. Direct exposure to competition is assessed on the basis (}) See ia. Commission Decision of 29 September 1999 declaring a concentration to be compatible with the common market and the EEA Agreement (Case IV/M.1532 — BP Amoco/Arco), point 14 (O] L 18, 19.1.2001, p. 1). () The fields mentioned are the producing ones.