S.L. 601.5 Art. 24Activities directly exposed to competition.

(1) Contracts intended to enable an activity mentioned in regulations 7 to 13 to be carried out shall not be subject to these regulations if the contracting entities, having introduced the request pursuant to regulation 25, can demonstrate that, in Malta, the activity is directly exposed to competition on markets to which access is not restricted; nor shall design contests that are organised for the pursuit of such an activity in that geographic area be subject to these regulations.

(2) The activity concerned may form part of a larger sector or be exercised only in certain parts of Malta. The competition assessment referred to in sub-regulation (1) is without prejudice to the application of competition law. Such assessment shall be made having regard to the market for the activities in question and the geographical reference market within the meaning of sub-regulations (3) and (4).

(3) For the purposes of sub-regulations (1) and (2), the question of whether an activity is directly exposed to competition shall be decided on the basis of criteria that are in conformity with the TFEU provisions on competition, such as the characteristics of the goods or services concerned, the existence of alternative goods or services considered to be substitutable on the supply side or demand side, the prices and the actual or potential presence of more than one supplier of the goods or services in question.

(4) The geographical reference market, on the basis of which exposure to competition is assessed, shall consist of the area in which the undertakings concerned are involved in the supply and demand of products or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring areas because, in particular, conditions of competition are appreciably different in those areas. That assessment shall take account in particular of the nature and characteristics of the products or services concerned of the existence of entry barriers or of consumer preferences, of appreciable differences of the undertakings; market shares between the area concerned and neighbouring areas or of substantial price differences.

(5) For the purposes of sub-regulations (1) and (2), access to a market shall be deemed not to be restricted if Malta has implemented and applied the provisions of Community legislation mentioned in Schedule 3.

(6) If free access to a given market cannot be presumed on the basis of the provisions of sub-regulation (5). it must be demonstrated that access to the market in question is free de facto and de jure.