25.5.2011 Official Journal of the European Union L 137/55 DECISIONS COMMISSION IMPLEMENTING DECISION of 20 May 2011 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 bituminous coal mining in the Czech Republic (notified under document C(2011) 3406) (Only the Czech text is authentic) (Text with EEA relevance) (2011/306/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 (), and in particular Article 30(4) and (6) thereof, Whereas: I. FACTS On 22 November 2010, the Commission received by e- mail a Czech request pursuant to Article 30(4) of Directive 2004/17/EC, asking for exemption of the bituminous coal mining in the Czech Republic from the application of the provisions of Directive 2004/17/EC. The Commission requested additional information by e-mail of 21 January 2011. The reply to the request for information was transmitted by the Czech authorities by e-mail of 9 February 2011. The request was accompanied by a letter from an inde- pendent national authority, (Ufad pro ochranu hospo- daiské soutéze, the Czech Office for the Protection of Competition) in the form of a preliminary opinion, dated 7 November 2008. The Czech Office for the Protection of Competition analysed the conditions of access to the relevant market and found it to be unre- stricted. However, the opinion does not state that the other conditions relating to the direct exposure to competition were met in respect of bituminous coal mining in the Czech Republic. () O] L 134, 30.4.2004, p. 1. (3) The only entity engaged in bituminous coal mining in the Czech Republic is the company OKD a.s., which is a private company owned 100 % by a private Dutch Holding — New World Resources (NWR). 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 competition 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 char- acteristics of the sector concerned. Access is deemed to be unrestricted if the Member State has implemented and applied the relevant EU legislation opening a given sector or a part of it. This legislation is listed in Annex XI to Directive 2004/17/EC. However for the exploration for and extraction of coal and other solid fuels, Annex XI does not list any relevant legislation liberalising this sector. Consequently free access to the market cannot be presumed, and it has to be demonstrated de facto and de jure. An examination of the legal provisions applicable to issuing licenses for mining, in the Czech Republic, shows that it is currently granted on non-discriminatory basis, based on the assessment of the professional qualifi- cation of the applicant, and the technical and financial capacity to carry out the works. For the purposes of this decision, the possibility to obtain mining licence could be considered, de jure, free. Direct exposure to competition should be evaluated on the basis of various indicators, none of which are necessarily, per se, decisive. In respect of the markets concerned by this decision, the aggregated market shares of the three main players on a given market