A public contract falls within Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts on the condition that the estimated value thereof reaches the threshold laid down in Article 7(b) of that directive, taking into consideration the usual value on the market of the works, supplies or services to which that public contract relates. Otherwise, the fundamental rules and the general principles of the TFEU, in particular the principles of equal treatment and of non-discrimination on grounds of nationality and the consequent obligation of transparency apply, provided that the contract concerned has a certain cross-border interest in the light, inter alia, of its value and the place where it is carried out. However, the criteria laid down in the case-law of the Court in order to determine whether an invitation to tender is mandatory or not are relevant both with regard to the interpretation of Directive 2004/18 and with regard to the interpretation of the rules and principles of the TFEU.

A contract for pecuniary interest concluded in writing between an economic operator and a contracting authority and having as its object the provision of services referred to in Annex II A to Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, is a public contract, even if that operator is himself a contracting authority. It is also immaterial whether the body concerned is primarily profit-making, whether it is structured as an undertaking or whether it has a continuous presence on the market. Furthermore, a contract cannot fall outside the concept of public contract merely because the remuneration remains limited to reimbursement of the expenditure incurred to provide the agreed service. In addition, consultancy activities concerning the study and the evaluation of the seismic vulnerability of hospital structures, notwithstanding the fact that they are capable of coming under academic research, fall, according to the actual nature of those activities, either within the framework of research and development services covered by Annex II A, category 8, of Directive 2004/18 or within the framework of engineering services and related scientific and technical consulting services covered by category 12 of that annex.

European Union public procurement law precludes national legislation which authorises the conclusion, without an invitation to tender, of a contract by which public entities establish cooperation among each other where — this being for the national court to establish — the purpose of such a contract is not to ensure that a public task that those entities all have to perform is carried out, where that contract is not governed solely by considerations and requirements relating to the pursuit of objectives in the public interest or where it is such as to place a private provider of services in a position of advantage vis-à-vis his competitors.

Only two types of contracts entered into by a public entity do not fall within the scope of European Union public procurement law. The first type of contracts are those concluded by a public entity with a person who is legally distinct from that entity where, at the same time, that entity exercises over the person concerned a control which is similar to that which it exercises over its own departments and where that person carries out the essential part of its activities with the entity or entities which control it. The second type of contracts are those which establish cooperation between public entities with the aim of ensuring that a public task that they all have to perform is carried out, in so far as, in addition, such contracts are concluded exclusively by public entities, without the participation of a private party, no private provider of services is placed in a position of advantage vis-à-vis his competitors and implementation of that cooperation is governed solely by considerations and requirements relating to the pursuit of objectives in the public interest.

(see paras 31-36, 40, operative part)