26.4.2012 Official Journal of the European Union L 114/21 COMMISSION IMPLEMENTING DECISION of 24 April 2012 exempting the production and wholesale of electricity produced from conventional sources in Germany 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(2012) 2426) (Only the German text is authentic) (Text with EEA relevance) (2012/218/EV) 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(5) and (6) thereof, Having regard to the request submitted by Bundesverband der Energie- und Wasserwirtschaft e.V. (Federal Association of the Energy and Water Industry) (hereinafter referred to as BDEW) by e-mail of 26 October 2011, Whereas: I. FACTS (1)  On 26 October 2011, BDEW transmitted a request pursuant to Article 30(5) of Directive 2004/17[EC to the Commission by e-mail. The Commission informed the German authorities about the request on 11 November 2011 and also requested additional information of the German authorities by e-mail of 10 January 2012, and of BDEW by e-mail of 21 December 2011. Additional information was trans- mitted by the German authorities by e-mail of 14 December 2011 and by BDEW on 17 January 2012 on 26 January 2012 and on 28 February 2012. (2)  The request submitted by BDEW on behalf of contracting entities in the sector concerns, as described in the request, ‘the construction, the purchase and the operation (including maintenance) of all types of elec- tricity generation plants, as well as the relevant support activities’ (%). (3)  The request is accompanied by an opinion of the Federal Cartel Office (Bundeskartellamt) dated 25 July 2011. This opinion (hereinafter referred to as the ‘Opinion’) was issued on the basis of relevant German legislation, and addresses the question as to whether the activity subject () OJ L 134, 30.4.2004, p. 1. (3 The exemption request is intended to cover also activities linked to electricity generation, such as combined heat and power stations. to the procedure is directly exposed to competition. The Opinion is based on a large sectorial survey of the relevant markets. 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 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 () which was also replaced by Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (%). Germany has implemented and applied not only Directive 96/92/EC but also Directives 2003/54/EC and 2009/72[EC. Consequently, and in accordance with the first subparagraph of Article 30(3), access to the market should be deemed not to be restricted on the entire territory of Germany. Direct exposure to competition should be evaluated on the basis of various indicators, none of which are, necess- arily, per se, decisive. In respect of the markets concerned by this Decision, the market share of the main players on a given market constitutes one criterion which should be taken into account. Another criterion is the degree of 27, 30.1.1997, p. 20. oJ L 0] L 176, 15.7.2003, p. 37. oJ L 211, 14.8.2009, p. 55.