Directive 2004/17/EC applies to contracts that have a value estimated to be no less than the following thresholds: (a) €387.000 in the case of supply and service contracts; and (b) €4,845,000 in the case of works contracts.[19]

　　1. Contracts Outside the Scope of the Directive

　　Directive 2004/17/EC does not apply in the following cases:

　　Works and service concessions that are awarded by contracting entities involved in gas, heat, electricity, water, transport services, and postal services, and exploration for, or extraction of, oil, gas, coal, or other solid fuels, as well as ports and airports;[20]

　　Contracts awarded for the purpose of resale or lease to third parties;[21]

　　Contracts awarded for purposes other than the pursuit of an activity covered or for the pursuit of such an activity in a third country;[22]

　　Contracts that are secret or require special security measures;[23]

　　Contracts awarded pursuant to international rules;[24] and

　　Contracts awarded to an affiliated undertaking, or to a joint venture.[25]

　　2. Tenders with Products Originating in Third Countries

　　Tenders that comprise products originating in third countries outside the European Union are subject to special rules provided for in Article 58 of Directive 2004/17/EC.  Under this Article, tenders that cover products originating in third countries with whom the EU has not concluded a bilateral or a multilateral agreement and that ensure comparable and effective access for Community companies to the markets of those third countries may be rejected where the proportion of products originating in third countries, as determined by the Community Customs Code, “exceeds 50% of the total value of the products constituting the tender.”[26]

　　C. Contracts Below the Required Threshold

　　Certain contracts below the thresholds prescribed by both Directives are subject to the general rules deriving from the EC Treaty.  The following public contracts remain wholly or partially outside the scope of the Directives:

　　Contracts below the thresholds for application of the directives-that is, those provided by Article 7 of Directive 2004/18/EC and Article 16 of Directive 2004/17/EC;

　　Contracts for services listed in Annex II B to Directive 2004/18/EC and in Annex XVII B to Directive 2004/17/EC; and,

　　Awards of services concessions.

　　Award of the above public contracts is governed by a number of standards, as developed by the Court of the European Union based on the rules and principles of the EC Treaty.  Consequently, the principle of equal treatment and nondiscrimination on grounds of nationality require some transparency in the award procedure.  The Court has held that it “consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of the procedures to be reviewed.”[27]