Fédération des maisons de repos privées de Belgique (Femarbel) ASBL v Commission communautaire commune de Brussels-Capitale.
Date: 2013-07-11
31. Directive 2006/123, as is clear from Article 1 thereof, read in conjunction with recitals 2 and 5 in the preamble thereto, lays down general provisions, intended to remove restrictions on the freedom of establishment for service providers in Member States and on the free movement of services between the Member States, in order to contribute to the completion of a free and competitive internal market (see, to that effect, Case C‑119/09 Société fiduciaire nationale d’expertise comptable  [2011] ECR I‑2551, paragraph 26).
32. Directive 2006/123 thus applies, pursuant to Articles 2(1) and 4 thereof, to any self-employed economic activity, normally provided for remuneration, by a provider established in a Member State, regardless of whether the provider is established in a stable and continuous manner in the Member State in which the services are provided, with the exception of the activities expressly excluded, which include ‘healthcare services’ and ‘social services’, referred to in Article 2(2)(f) and Article 2(2)(j) respectively, provisions referred to in the national court’s question.
34. In order to understand, in the first place, the scope of the exclusion laid down in Article 2(2)(f) of Directive 2006/123, it is necessary to interpret the concept of ‘healthcare services’ by reference, not only to the wording of that provision, but also to its purpose and general structure, in the context of the scheme laid down by that directive.
39. In that respect, it must be pointed out that, as is clear from recital 7 in the preamble to Directive 2006/123, that 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 and its system of regulation, as well as other general interest objectives, including public health. It follows that the European Union legislature expressly sought to ensure the respect of the balance between, on the one hand, the objective of eliminating obstacles to freedom of establishment of service providers and the free movement of services, and, on the other hand, the need to safeguard the specific characteristics of certain sensitive activities, in particular those linked to the protection of human health.
40. It is in the light of those clarifications that the national court must verify whether the principal activities provided by day-care centres and night-care centres come within the scope of ‘healthcare services’, within the meaning of Article 2(2)(f) of Directive 2006/123, and whether, as a consequence, those centres are excluded from the scope of that directive.
47. From the perspective of the provider, that ‘obligation’ must be understood, as is also clear from the communication and resolution mentioned above, as implying, first, the binding commitment to provide the services in question and, secondly, the need to do so under certain specific conditions. Those conditions relate, inter alia, to ensuring that the services are provided in accordance with the established quantitative and qualitative requirements and in such a manner as to ensure the equality of access to services, subject, in principle, to adequate financial compensation, calculated on the basis of parameters established in advance in an objective and transparent manner (see, by analogy, Case C‑140/09 Fallimento Traghetti del Mediterraneo  [2010] ECR I‑5243, paragraph 38 and the case-law cited).
48. As regards the characteristics of the mandating act, it is indeed true that, as COCOM submitted in its written observations, Directive 2006/123 does not require the use of a particular legal form, so those characteristics may vary between different Member States. Nevertheless, certain minimum criteria must be satisfied, such as, inter alia, the presence of an act conferring to a private service provider, in a clear and transparent manner, the social services obligation with which it is charged (see, by analogy, Fallimento Traghetti del Mediterraneo , paragraph 37 and the case-law cited).