(1) This Part shall not apply to the award of public contracts that are awarded by a public contracting authority within the meaning of Section 99 nos 1 to 3 to a legal person under public or private law where
1. the public contracting authority exercises over the legal person a control similar to that exercised by it over its own departments,
2. more than 80 per cent of the activities of the legal person are carried out in the performance of tasks entrusted to it by the public contracting authority or by other legal persons controlled by that public contracting authority; and
3. there is no direct private capital participation in the legal person with the exception of non-controlling and non-blocking forms of private capital participation that are required by national legislative provisions and that do not exert a decisive influence on the controlled legal person.
(2) The exercise of control within the meaning of subsection (1) no 1 is deemed to exist where the public contracting authority exercises a decisive influence over the strategic objectives and significant decisions of the legal person. Control may also be exercised by another legal person which is itself controlled in the same way by the public contracting authority.
(3) Subsection (1) also applies to the award of public contracts by a controlled legal person, which is at the same time a public contracting authority within the meaning of Section 99 nos 1 to 3, to the controlling public contracting authority or to another legal person controlled by that public contracting authority. It is required that there be no direct private capital participation in the legal person being awarded the public contract. Subsection (1) no 3 second half of the sentence shall apply mutatis mutandis.
(4) This Part shall not apply to the award of public contracts where, although the public contracting authority within the meaning of Section 99 nos 1 to 3 exercises no control within the meaning of subsection (1) no 1 over a legal person under public or private law,
1. the public contracting authority, jointly with other public contracting authorities, exercises over the legal person a control which is similar to that exercised by each of the public contracting authorities over its own departments;
2. more than 80 per cent of the activities of the legal person are carried out in the performance of tasks entrusted to it by the public contracting authorities or by another legal person controlled by those public contracting authorities; and
3. there is no direct private capital participation in the legal person; subsection (1) no 3 second half of the sentence shall apply mutatis mutandis.
(5) Joint control within the meaning of subsection (4) no 1 exists where
1. the decision-making bodies of the controlled legal person are composed of representatives of all participating contracting authorities; an individual representative may represent several or all of the participating public contracting authorities;
2. the contracting authorities are able to jointly exert decisive influence over the strategic objectives and significant decisions of the legal person; and
3. the legal person does not pursue any interests that are contrary to those of the public contracting authorities.
(6) Nor shall this Part apply to contracts concluded between two or more public contracting authorities within the meaning of Section 99 nos 1 to 3 where
1. the contract establishes or implements a cooperation between the participating public contracting authorities to ensure that the public services they have to perform are provided with a view to achieving objectives they have in common;
2. the implementation of the cooperation under no 1 is governed solely by considerations relating to the public interest; and
3. the public contracting authorities perform on the open market less than 20 per cent of the activities concerned by the cooperation under no 1.
(7) For the determination of the percentage under subsection (1) no 2, subsection (4) no 2 and subsection (6) no 3, the average total turnover or an appropriate activity-based measure for the three years preceding the public contract award shall be taken into consideration. An appropriate activity-based measure is, for example, costs incurred by the legal person or the public contracting authority in this period with respect to supplies, works and services. Where turnover, or an appropriate alternative activity-based measure such as costs, is either not available for the preceding three years or no longer meaningful, it shall be sufficient to show, particularly by means of business projections, that the measurement of activity is credible.
(8) Subsections (1) to (7) shall apply mutatis mutandis to sector contracting entities within the meaning of Section 100(1) no 1 for the award of public contracts and to concession grantors within the meaning of Section 101(1) nos 1 and 2 for the award of concessions.