Fédération des maisons de repos privées de Belgique (Femarbel) ASBL v Commission communautaire commune de Brussels-Capitale.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 11 July 2013

JUDGMENT OF THE COURT (First Chamber)

11 July 2013 ( *1 )

‛Directive 2006/123/EC — Scope ratione materiae — Healthcare services — Social services — Day-care centres and Night-care centres providing assistance and care to elderly persons’

In Case C-57/12,

REQUEST for a preliminary ruling under Article 267 TFEU from the Cour constitutionnelle (Belgium), made by decision of 25 January 2012, received at the Court on 3 February 2012, in the proceedings

Fédération des maisons de repos privées de Belgique (Femarbel) ASBL

v

Commission communautaire commune de Bruxelles-Capitale,

THE COURT (First Chamber),

composed of A. Tizzano (Rapporteur), President of the Chamber, M. Berger, A. Borg Barthet, E. Levits and J.-J. Kasel, Judges,

Advocate General: P. Cruz Villalón,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 17 January 2013,

after considering the observations submitted on behalf of:

— the Fédération des maisons de repos privées de Belgium (Femarbel) ASBL, by M. Vastmans, avocate,

— the Commission communautaire commune de Bruxelles-Capitale, by B. Fonteyn, acting as Agent, and by P. Slegers and S. Engelen, avocats,

— the Netherlands Government, by B. Koopman and C. Wissels, acting as Agents,

— the European Commission, by I. Rogalski and C. Vrignon, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 14 March 2013,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 2(2)(f) and (j) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).

2 The request has been made in proceedings between the Fédération des maisons de repos privées de Belgique (Femarbel) ASBL (‘Femarbel’) and the Commission communautaire commune de Bruxelles-Capitale (‘COCOM’) concerning the concepts of ‘healthcare services’ and ‘social services’.

Legal context

European Union law

3 Recital 7 in the preamble to Directive 2006/123 states: ‘This Directive establishes a general legal framework which benefits a wide variety of services while taking into account the distinctive features of each type of activity or profession and its system of regulation. … This Directive also takes into account other general interest objectives, including the protection of the environment, public security and public health as well as the need to comply with labour law.’

4 Recital 22 in the preamble to that directive states: ‘The exclusion of healthcare from the scope of this Directive should cover healthcare and pharmaceutical services provided by health professionals to patients to assess, maintain or restore their state of health where those activities are reserved to a regulated health profession in the Member State in which the services are provided.’

5 Recital 27 in the preamble to Directive 2006/123 reads as follows: ‘This Directive should not cover those social services in the areas of housing, childcare and support to families and persons in need which are provided by the State at national, regional or local level by providers mandated by the State or by charities recognised as such by the State with the objective of ensuring support for those who are permanently or temporarily in a particular state of need because of their insufficient family income or total or partial lack of independence and for those who risk being marginalised. These services are essential in order to guarantee the fundamental right to human dignity and integrity and are a manifestation of the principles of social cohesion and solidarity and should not be affected by this Directive.’

6 Article 2 of that directive provides: ‘1. This Directive shall apply to services supplied by providers established in a Member State. 2. This Directive shall not apply to the following activities: … (f) healthcare services whether or not they are provided via healthcare facilities, and regardless of the ways in which they are organised and financed at national level or whether they are public or private; … (j) social services relating to social housing, childcare and support of families and persons permanently or temporarily in need which are provided by the State, by providers mandated by the State or by charities recognised as such by the State; …’

7 Article 4 of Directive 2006/123 provides: ‘For the purpose of this Directive, the following definitions shall apply: … (6) “authorisation scheme” means any procedure under which a provider or recipient is in effect required to take steps in order to obtain from a competent authority a formal decision, or an implied decision, concerning access to a service activity or the exercise thereof.’

8 Article 3 of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare (OJ 2011 L 88, p. 45), is worded as follows: ‘For the purposes of this Directive, the following definitions shall apply: (a) “healthcare” means health services provided by health professionals to patients to assess, maintain or restore their state of health, including the prescription, dispensation and provision of medicinal products and medical devices; … (f) “health professional” means a doctor of medicine, a nurse responsible for general care, a dental practitioner, a midwife or a pharmacist within the meaning of Directive 2005/36/EC, or another professional exercising activities in the healthcare sector which are restricted to a regulated profession as defined in Article 3(1)(a) of Directive 2005/36/EC, or a person considered to be a health professional according to the legislation of the Member State of treatment; …’

Belgian law

9 The draft order of 21 June 2007 (Doc. Parl., Assemblée réunie de la Commission communautaire commune, 2006-2007, B-102/1, p. 1) states: ‘Through the present order, the General Assembly shall have the means to implement a monitoring policy in respect of all facilities for the elderly and shall be able to ensure the development of a diverse range of facilities, with particular attention being paid to the updating of services available to this vulnerable group. … The “life plan” is a central aspect in the care of the person, who must be able to live in an active and participatory manner at all times.’

10 Article 2 of the order of 24 April 2008 concerning facilities receiving or accommodating the elderly (Moniteur belge, 16 May 2008, p. 25666, ‘the 2008 order’) provides: ‘For the purposes of this order the following shall have the meanings hereby assigned to them: … (4) Facilities for the elderly: … (e) “day-care centre”: a building or part of a building, however described, established in, or in connection with, a care home, offering reception facilities, during the day, for elderly persons living at home, who, at the centre, receive assistance and care appropriate to their loss of independence; … (g) “night-care centre”: a building or part of a building, however described, established within a care home, offering reception facilities, during the night, for elderly persons who, although living at home, need night-time supervision, assistance and health care which cannot be provided by their close relatives on a continuous basis.’

11 Article 4 of the 2008 order is worded as follows: ‘The General Assembly may, after obtaining the opinion of the Section, decide on programmes for all or any of the facilities for the elderly referred to in Article 2(4), with the exception of those referred to in Article 2(4)(b)(β) …’

12 Under Article 6 of that order: ‘No new facility referred to in Article 2(4) may be brought into service, and no extension of the reception or accommodation capacities of an existing facility may be brought into service or operated, without the authorisation of the General Assembly, if the facility concerned falls within a category of facility in respect of which the General Assembly has adopted a programme in accordance with Chapter II. The authorisation provided for in the first subparagraph, which signifies that a project complies with the programme, is called “specific authorisation for bringing into service and operation” …’

13 Article 11(1) of the order provides: ‘No facility referred to in Article 2(4)(a), (b)(α), (c), (d), (e), (f) or (g), may be brought into service, and no provider may offer services in a facility referred to in Article 2(4)(b)(α), without prior approval. Approval shall be granted by the General Assembly, after obtaining the opinion of the Section, for a maximum, renewable, period of six years. The approval decision, referred to in subparagraph 2, shall determine the maximum number of elderly persons who may be accommodated or received in the facility. To be approved by the General Assembly, the facility must comply, where appropriate, with the standards laid down by the competent federal authorities, and with any rules that the General Assembly may, after obtaining the opinion of the Section, lay down for each category of facility referred to in Article 2(4). Those rules shall relate to: 1. the admission and reception of elderly persons; 2. respect for the elderly, their constitutional and legal rights and freedoms, having...