Prováděcí rozhodnutí Komise (EU) 2025/2277 ze dne 12. listopadu 2025, kterým se opravuje prováděcí rozhodnutí (EU) 2025/477 o použitelnosti článku 34 směrnice Evropského parlamentu a Rady 2014/25/EU na zakázky zadávané na činnosti související s výrobou a velkoobchodním prodejem elektřiny v Belgii, s výjimkou elektřiny vyrobené v jaderných elektrárnách Doel 4 a Tihange 3 (oznámeno pod číslem C(2025) 7575)

THE EUROPEAN COMMISSION,

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Having regard to the Treaty on the Functioning of the European Union,

Having regard to Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/ECOJ L 94, 28.3.2014, p. 243 , ELI: http://data.europa.eu/eli/dir/2014/25/oj. , and in particular Article 35(3) thereof,

After consulting the Advisory Committee for Public Contracts,

OJ L 94, 28.3.2014, p. 243 , ELI: http://data.europa.eu/eli/dir/2014/25/oj.

(1) On 24 July 2024 , the Kingdom of Belgium requested the Commission to establish, pursuant to Article 35(1) of Directive 2014/25/EU (the request), that that Directive does not apply to the activities of Luminus, Norther and Ørsted (the applicants) with regard to electricity generation and wholesale of electricity in Belgium. The request did not cover electricity generation and wholesale from the Doel 4 and Tihange 3 nuclear power plants.

(2) In response to that request, the Commission adopted Implementing Decision (EU) 2025/477Commission Implementing Decision (EU) 2025/477 of 6 March 2025 on the applicability of Article 34 of Directive 2014/25/EU of the European Parliament and of the Council to the award of contracts for the activities related to the generation and wholesale of electricity in Belgium, with the exception of electricity generated in the Doel 4 and Tihange 3 nuclear power plants (OJ L, 2025/477, 13.3.2025, ELI: http://data.europa.eu/eli/dec_impl/2025/477/oj). (the Decision) on 6 March 2025 .

(3) As noted in recital 13 of the Decision, the Commission took into account, for the purposes of assessing whether the relevant activities are subject to direct competition in the markets concerned, the market share of the main undertakings active in electricity generation and wholesale in Belgium, as well as the existence and the extent of support to renewable electricity generation and wholesale in Belgium through public schemes.

(4) In the Decision, the Commission clarified that it did not analyse the subsidy scheme for Doel 4 and Tihange 3 nuclear power plants as extended beyond 2025 (recital 22 and footnote 12 of the Decision). With regard to the remaining subsidy schemes, in recital 35 of the Decision, the Commission concluded that electricity generation and wholesale from renewable energy sources receiving fixed and legally defined premiums form a separate market. The Commission reached that conclusion on the basis of the decisions quoted in recital 20 of the Decision. However, recitals 28 and 40 of the Decision refer to recital 18 instead. Therefore, it is necessary to correct Implementing Decision (EU) 2025/477 accordingly in respect of that error.

(5) In the market analysis part of the Decision, Section 3.2.3.2 analyses factors such as market shares and concentration levels; Section 3.2.3.3 analyses the competitive pressure exerted by electricity imports and Section 3.2.3.4 describes the undertakings that are active in the overall electricity generation and wholesale market in Belgium, including the contracting entities. In particular, recitals 57 to 64 of the Decision set out the Commission’s analysis of whether contracting authorities could have a dominant influence on Engie.

(6) Engie was not included in the request. The Kingdom of Belgium stated that Engie does not operate on the European public procurement platforms because, in its view, it is not subject to Directive 2014/25/EU (recital 57 of the Decision). However, in light of the information available at the time of the Decision, the Commission took the view that Engie should be regarded as a contracting entity pursuant to Article 4(2) of Directive 2014/25/EU (recital 64 of the Decision).

(7) After the adoption of the Decision, Engie approached the Commission with new information about its shareholders and their voting rights. It follows from that information that, contrary to what is indicated in recital 60 of the Decision, the French contracting authorities – shareholders of Engie – have not held at least 50 % of votes actually cast by shareholders at the annual general meetings of Engie’s shareholders in all the five years in the period between 2020 and 2024. In fact, in 2022 and 2023, those contracting authorities held slightly less than half of the votes actually cast, with the percentages held by the French State and by the Caisse des Dépôts et Consignations being, on average, 49,92 % in 2022 and 48,55 % in 2023, respectively. The fact that the French contracting authorities did not have a majority of votes cast at all general assemblies in all five years over the 2020-2024 period (but only in 2020, 2021 and 2024) cast a doubt on the conclusion that they exerted a dominant influence over Engie.

(8) The Commission should also take account of the fact that the possibility for the French State to turn an ordinary share of Engie into a golden share merely affords the French State the right to oppose the sale of strategic assets to a third party. It follows that the Commission’s assertion in recital 61 of the Decision that such golden share would give the French State the right to condition the entry of new shareholders into the company’s capital above a given threshold to the Minister of Economy’s agreement is incorrect.

(9) Based on the new information provided by Engie, and in the absence of any further evidence regarding possible dominant influence exerted in law or in fact by the contracting authorities over Engie, the Commission no longer has sufficient elements, at this stage, to conclude that contracting authorities could have a dominant influence on Engie and that, therefore, Engie should be regarded as a contracting entity within the meaning of Directive 2014/25/EU. Therefore, it is necessary to correct Implementing Decision (EU) 2025/477 accordingly.

(10) The fact that the Commission can no longer conclude that Engie is a contracting entity has an impact on the analysis of the conditions of direct exposure to competition in the overall electricity generation and wholesale market in Belgium. Contracting entities, including Luminus, had on that market combined market shares of between 20 % and 30 % in capacity and 15 % and 20 % in generation over the 2019-2023 period (recital 56 of the Decision). That market share is expected to remain stable in the coming years. Luminus, on its own, had 14,1 % of the market in 2023 (recital 42 of the Decision). That is well below the thresholds considered in the case-law of the Court of Justice of the European Union and in the Commission’s practice on competition matters as a potential indication of the existence of significant market power. As regards the remaining contracting entities, Norther only operates one wind farm at present and Ørsted is not yet present on the Belgian electricity generation and wholesale market. Both of them, along with Luminus, face competition from other producers (namely, Engie, RWE, Eneco and Total Energy) which are not considered to be contracting entities and which together accounted for over 62 % of the electricity generation and wholesale market, in terms of energy produced, in Belgium in 2023 (recital 42 of the Decision).

(11) As a result, in light of the new elements concerning Engie brought to the Commission’s attention, which existed at the time of the adoption of the Decision, the Commission can no longer consider that the activities of Luminus in the electricity generation and wholesale market in Belgium are not directly exposed to competition. Therefore, it is necessary to correct Implementing Decision (EU) 2025/477 accordingly in respect of the Commission’s assessment of the conditions of direct exposure to competition in the overall electricity generation and wholesale market in Belgium as well as its conclusions in that regard.

(12) Taking into account that the new elements concerning Engie existed at the time of the adoption of Implementing Decision (EU) 2025/477, as well as the effect that the necessary corrections have on the undertakings concerned, this Decision should apply from 6 March 2025 ,

Without prejudice to Article 1, Directive 2014/25/EU shall not apply to the awarding of contracts intended to enable the electricity generation and wholesale activities to be carried out in Belgium, with the exception of electricity generation and wholesale activities from Doel 4 and Tihange 3, which fall outside the scope of this Decision.

This Decision is addressed to the Kingdom of Belgium.

It shall apply as of 6 March 2025 .

Commission Implementing Decision (EU) 2025/477 of 6 March 2025 on the applicability of Article 34 of Directive 2014/25/EU of the European Parliament and of the Council to the award of contracts for the activities related to the generation and wholesale of electricity in Belgium, with the exception of electricity generated in the Doel 4 and Tihange 3 nuclear power plants (OJ L, 2025/477, 13.3.2025, ELI: http://data.europa.eu/eli/dec_impl/2025/477/oj).

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Para. 164 of the request.

Luminus also enjoys drawing rights on some French nuclear power plants. Luminus’ controlling shareholder (EDF) operates a fleet of 56 nuclear reactors in France. French nuclear electricity production can be imported in Belgium via the interconnections between the two countries.

See Table 8 of Annex II to the request.

Ibid .

Ibid .;

Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1 , ELI: http://data.europa.eu/eli/reg/2004/139/oj).

Judgment of the General Court of 27 April 2016 , Österreichische Post AG v Commission , T-463/14, ECLI:EU:T:2016:243, paragraph 28. See also Directive 2014/25/EU, recital 44.;

HAS ADOPTED THIS DECISION: