S.L. 601.9 Art. 5Non-applicability to concessions awarded by contracting authorities and contracting entities. S.L. 601.07 S.L. 601.07 S.L. 601.07 S.L. 601.07

(1) These regulations shall not apply to:

(a) services concessions awarded to a contracting authority or to a contracting entity as referred to in regulation 2(2)(a) or to an association thereof on the basis of an exclusive right;

(b) services concessions awarded to an economic operator on the basis of an exclusive right which has been granted in accordance with the TFEU and Union legal acts laying down common rules on access to the market applicable to activities referred to in Schedule 4: Provided that where Union sectoral legislation referred to in this paragraph does not provide for sector specific transparency obligations, regulation 96 shall apply: Provided further that where the contracting authority or entity grants an exclusive right, with an estimated value which meets or exceeds the value established under Schedule 3, to an economic operator for the exercise of one of the activities referred to in Schedule 4 the contracting authority or entity shall inform the Commission thereof within one month after the award of that exclusive right;

(c) concessions for air transport services based on the granting of an operating licence within the meaning of Regulation (EC) No 1008/2008 of the European Parliament and of the Council or to concessions for public passenger transport services within the meaning of Regulation (EC) No 1370/2007;

(d) concessions which the contracting authority or contracting entity is obliged to award or organise in accordance with procedures different from those laid down in these regulations established by any of the following:

(i) a legal instrument creating international law obligations, such as an international agreement concluded in conformity with the TFEU between a Member State and one or more third countries or subdivisions thereof and covering works, supplies or services intended for the joint implementation or exploitation of a project by their signatories; (ii an international organisation;

(e) concessions which the contracting authority or contracting entity awards in accordance with procurement rules provided by an international organisation or international financing institution, where the concessions concerned are fully financed by that organisation or institution. In the case of concessions co-financed for the most part by an international organisation or international financing institution, the parties shall agree on applicable procurement procedures;

(f) paragraphs (d) and (e) shall not apply to concessions awarded in terms of the Public Procurement of

Contracting Authorities or Entities in the fields of Defence and Security Regulations;

(g) concessions in the fields of defence and security as referred to and in terms of the Public Procurement of

Contracting Authorities or Entities in the fields of Defence and Security Regulations, which are governed by:

(i) specific procedural rules pursuant to an international agreement or arrangement concluded between one or more Member States and one or more third countries;

(ii) specific procedural rules pursuant to a concluded international agreement or arrangement relating to the stationing of troops and concerning the undertakings of a Member State or a third country;

(iii) specific procedural rules of an international organisation purchasing for its purposes, or to concessions which must be awarded by a contracting authority or contracting entity in accordance with those rules;

(h) concessions in the fields of defence and security as referred to in the Public Procurement of Contracting Authorities or Entities in the fields of Defence and Security Regulations which fall under one of the following:

(i) concessions for which the application of these regulations would oblige Malta to supply information the disclosure of which it considers contrary to the essential interests of its security; or where the procurement and performance of the concession are declared to be secret or must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in Malta, provided that Malta has determined that the essential interests concerned cannot be guaranteed by less intrusive measures, such as those referred to in paragraph (i) hereunder;

(ii) concessions awarded in the framework of a cooperative programme referred to in regulation 14 of the Public Procurement of Contracting Authorities or Entities in the fields of Defence and Security Regulations;

(iii) concessions awarded by a government to another government relating to works and services directly linked to military equipment or sensitive equipment, or works and services specifically for military purposes, or sensitive works and sensitive services;

(iv) concessions awarded in a third country, carried out when forces are deployed outside the territory of the Union where operational needs require those concessions to be concluded with economic operators located in the area of operations; and

(v) concessions otherwise exempted under these regulations;

(i) concessions not otherwise exempted under paragraph

(h) to the extent that the protection of the essential security interests of Malta cannot be guaranteed by less intrusive measures, for instance by imposing requirements aimed at protecting the confidential nature of information which the contracting authority or contracting entity makes available in a concession award procedure as provided for in these regulations;

(j) service concessions for the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or concerning rights thereon;

(k) service concessions for the acquisition, development, production or co-production of programme material intended for audiovisual media services or radio media services, that are awarded by audiovisual or radio media service providers, or concessions for broadcasting time or programme provision, that are awarded to audiovisual or radio media service providers;

(l) service concessions for arbitration and conciliation services;

(m) service concessions for any of the following legal services:

(i) legal representation of a client by a lawyer within the meaning of Article 1 of Council Directive 77/249/EEC in an arbitration or conciliation held in a Member State, a third country or before an international arbitration or conciliation instance, or judicial proceedings before the courts, tribunals or public authorities of a Member State or a third country or before international courts, tribunals or institutions;

(ii) legal advice given in preparation of any of the proceedings referred to in sub-paragraph (i) or where there is a tangible indication and high probability that the matter to which the advice relates will become the subject of such proceedings, provided that the advice is given by a lawyer within the meaning of Article 1 of Directive 77/249/EEC;

(iii) document certification and authentication services which must be provided by notaries;

(iv) legal services provided by trustees or appointed guardians or other legal services the providers of which are designated by a court or tribunal in Malta or are designated by law to carry out specific tasks under the supervision of such tribunals or courts;

(v) other legal services which in Malta are connected, even occasionally, with the exercise of official authority;

(n) service concessions for financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council, central bank services and operations conducted with the European Financial Stability Facility and the European Stability Mechanism;

(o) service concessions for loans, whether or not in connection with the issue, sale, purchase or transfer of securities or other financial instruments;

(p) civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations, and which are covered by CPV codes: 75250000-3, 75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8, 98113100-9 and 85143000-3 except patient transport ambulance services;

(q) political campaign services, which are covered by CPV codes 79341400-0, 92111230-3 and 92111240-6, when awarded by a political party in the context of an election campaign;

(r) service concessions for lottery services, which are covered by CPV code 92351100-7, awarded by Malta to an economic operator on the basis of an exclusive right. For the purpose of this paragraph, the notion of exclusive right does not cover exclusive rights as referred to in the proviso included under the definition of the term "contracting entities" under regulation 2(2): Provided that the grant of such an exclusive right shall be subject to publication in the Official Journal of the European Union;

(s) concessions awarded by contracting entities for the pursuit of their activities in a third country, in conditions not involving the physical use of a network or geographical area within the Union.

(2) For the purposes sub-regulation (1)(k) "audiovisual media services" and "media service providers" shall, respectively, have the same meaning as in points (a) and (d) of Article 1(1) of Directive 2010/13/EU of the European Parliament and of the Council. "Programme" shall have the same meaning as in point (b) of Article 1(1) of that Directive, but shall also include radio programmes and radio programme materials. Furthermore, for the purposes of this provision, "programme material" shall have the same meaning as "programme".

(3) These regulations shall not affect social security systems of Malta.

(4) Non-economic services of general interest shall fall outside the scope of these regulations.

(5) These regulations shall also not affect the freedom of government to define, what they consider to be services of general economic interest, how those services should be organised and financed, in compliance with the State aid rules, and what specific obligations they should be subject to.