1. 

In this case, the Belgian Cour constitutionnelle (Constitutional Court) is referring to the Court for a preliminary ruling a question relating to the interpretation of Article 2(2) of Directive 2006/123/EC on services in the internal market. ( 2 ) This provision sets out the scope ratione materiae of Directive 2006/123/EC (‘the Services Directive’ or ‘the Directive’) and excludes, inter alia, healthcare services in general and certain social services provided in various different ways. The question put by the Cour constitutionnelle seeks to establish whether ‘day reception centres’ and ‘night reception centres’ for the elderly, as currently provided for under the legislation of the Commission communautaire commune (Common Community Commission) for the Bruxelles-capitale Region, constitute either healthcare or social services, with the consequences referred to in Article 2(2) of the Services Directive.

2.

Article 2(2)(f) and (j) of the Services Directive provides as follows:

‘This Directive shall not apply to the following activities:

…

…

3.

Article 2(4) of the order of 24 April 2008 of the Commission communautaire commune for the Bruxelles-capitale Region (‘COCOM’) concerning facilities for the reception or accommodation of the elderly contains a list of centres that are subject to the legislation. It refers to the following centres:

4.

Subparagraphs (d), (e) and (g) of Article 2(4) of the order define day reception centres and night reception centres respectively as follows:

5.

The order contemplates two methods of regulating centres: a system of ‘programming’, which is designed to regulate the supply of accommodation and an ‘approval’ system, which relates to the quality of the accommodation.

6.

Articles 4 to 10 of the order empower COCOM to introduce programming for all or any facilities for the elderly. The objective of programming is to ‘regulate changes in the supply of reception facilities, accommodation or care for the elderly, in a manner consistent with changes in the needs of the population of Brussels’. No new facility falling within a category that has been made subject to programming may henceforth be brought into service or operated without authorisation.

7.

Article 11 of the order concerns approvals and provides, essentially, as follows:

‘1.   No facility ... may be brought into service ... without having first been approved.

Approval shall be granted ... for a maximum, renewable, period of six years.

The approval decision ... shall determine the maximum number of elderly people who can be accommodated or received in the facility.

To be approved ..., the facility must comply [with] ... and with any rules which the General Executive may ... lay down for each category of facility referred to in Article 2(4).

Those rules shall relate to:

In particular, agreements must clearly specify everything that is included in the daily rate and the expenses over and above the daily rate that may be separately invoiced by way of a supplement or by way of a payment on account to third parties. …

…

8.

The rules relating to approvals were laid down in a COCOM decision of 3 December 2009.

9.

The Fédération des maisons de repos privées de Belgique (Belgian federation of private retirement homes, ‘Femarbel’), is a sectoral body that represents the interests of private establishments providing reception and accommodation facilities for the elderly.

10.

On 15 February 2010, Femarbel brought an action before the Belgian Conseil d’État (Council of State) in respect of the COCOM decision of 3 December 2009 laying down rules relating to approvals for centres for the elderly. In the course of those proceedings, Femarbel entered an objection of illegality, which challenged the validity of Articles 11 to 109 of the aforementioned COCOM order of 24 April 2008.

11.

The Conseil d’État referred an issue of unconstitutionality to the Cour constitutionnelle, expressing various doubts concerning the compatibility with the Belgian Constitution of the COCOM order of 24 April 2008.

12.

In the context of these proceedings, the Cour constitutionnelle has questioned the compatibility of the aforementioned national legislation with EU law, specifically the Services Directive. In the light of the particular characteristics of the centres at issue, the Cour constitutionnelle has referred the following question to the Court of Justice for a preliminary ruling:

‘Must the healthcare services referred to in Article 2(2)(f) and the social services referred to in Article 2(2)(j) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market be interpreted in such a way as to exclude from the scope of the Directive day reception centres within the meaning of the order of the Commission communautaire commune of 24 April 2008 on establishments receiving or accommodating old people, in so far as they provide assistance and care appropriate to the loss of independence of old people, and likewise night reception centres within the meaning of the same order, in so far as they provided health assistance and care that cannot be given to old people by their close relatives on a continuous basis?’

13.

The question referred for a preliminary ruling was received by the Court Registry on 3 February 2012.

14.

Femarbel, COCOM, the Kingdom of the Netherlands and the Commission have submitted observations.

15.

At the hearing, held on 17 January 2013, the representatives of Femarbel and COCOM and the agent of the Commission presented their respective arguments.

16.

The provisions to be interpreted in these proceedings are subparagraphs (f) and (j) of Article 2(2) of the Services Directive, which relate to the material scope of the directive. By virtue of these provisions, both healthcare services in general (subparagraph (f)) and certain social services (subparagraph (j)) are excluded from the scope of the directive. As day reception centres and night reception centres for the elderly could be covered by one or other of these two cases, the Belgian Cour constitutionnelle seeks an interpretation of both provisions.

17.

More specifically, the question is whether or not these centres for the elderly fall within either the situation described in subparagraph (f) or that described in subparagraph (j). I shall therefore analyse the scope and application to day reception and night reception centres for the elderly of first one and then the other of these provisions.

18.

Article 2(2)(f) excludes ‘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’ from the scope of the directive. In their observations submitted in these proceedings, Femarbel, the Netherlands and the Commission argue that this subparagraph (f) does not apply to day reception and night reception centres for the elderly. Put very briefly, they take the view that, as their main activity is not the provision of healthcare services, reception centres should be regarded as falling within the ambit of the Services Directive.

19.

By contrast, COCOM emphasises the similarities between these centres and centres providing a higher level of care or those that are purely medical, leading it to the conclusion that day reception centres and night reception centres are ‘healthcare services’ and, as such, fall outside the ambit of the Services Directive.

20.

It can be seen that no indications as to the definition of ‘healthcare services’ are to be gleaned from the actual wording of Article 2(2)(f). It is, however, clear that this is a general exception: healthcare services without any further specification, ‘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’. Thus, anything that may be described as healthcare services, no matter what organisational or financial structures are used and irrespective of the level of State involvement, falls within this exception. The question of what these healthcare services comprise is one that must be answered in the light of the general context of the legislation.

21.

Recital 22 in the preamble to the Services Directive provides some points of interest. Referring to subparagraph (f), it makes it clear that the exclusion ‘cover[s] 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’.

22.

The description given in recital 22 is further developed in the Handbook on the implementation of the Services Directive, ( 3 ) a document approved by the Commission in 2007 that has no legal value but is nevertheless illustrative. In reference to Article 2(2)(f), the Handbook points out that it means that ‘services which are not provided to a patient … are not covered by this exclusion’ and that ‘moreover, the exclusion does not cover activities which are not designed to maintain, assess or restore patients’ state of health. Furthermore, the Handbook goes on to say, ‘the exclusion of health services only covers activities which are reserved to a regulated health profession in the Member State where the service is provided’.

23.

A further useful reference, albeit outside the legislative context of this case, is provided by Directive 2011/24/EU on the application of patients’ rights in cross-border healthcare. ( 4 ) This directive does not concern the freedom to establish health centres, but in Article 3(a) it defines ‘healthcare’ as any ‘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’.

24.

It is clear that ‘healthcare services’ as defined in EU law mainly comprise assessing, maintaining or restoring a person’s health. Where the activity consists of providing various services, some of which do not have those characteristics, it is necessary to look at the activity’s principal service. That is why, as noted in the Handbook, a sports or fitness club would not be deemed ‘healthcare services’, even though some of its services clearly focus on assessing, maintaining or restoring health. ( 5 )

25.

Furthermore, healthcare services must be provided by health professionals. The Services Directive does not specify the type of qualification to be held by such professionals, and nor do the other texts referred to earlier, but this is merely a matter of examining each specific situation. If the profession is regulated, then the relevant legal provisions will confirm that it is a healthcare profession. If, on the other hand, the profession is not regulated, it will be necessary to take into account the occupational group in the relevant Member State and the services provided by it, which will require a specific analysis of the activities carried out by the professional.

26.

It should also be emphasised that the health professional must have a central part to play and at a key stage in the provision of the service. In other words, simply to provide that there must be medical supervision or to introduce a certification procedure without affecting the substance or quality of the service does not automatically render it a ‘healthcare service’.

27.

On the basis of those criteria, a ‘healthcare service’ is to be interpreted as meaning any service or set of services provided by or under the direction of a health professional, the main object of which is to assess, maintain or restore a person’s health. This being the case, and in the light of the reasoning already outlined, it is now necessary to analyse the services provided by day reception centres and night reception centres, as set out in the COCOM order of 24 April 2008.

28.

For that purpose, we may have recourse only to the national legislative framework, for, as the representative of COCOM has pointed out, there are at the present time no centres of this nature, governed by the legislation at issue, in operation. Consequently, having regard exclusively to the description contained in the order of 24 April 2008, we must differentiate between day reception and night reception centres for the elderly.

29.

With respect to day reception centres, Article 2(e) of the order defines these as centres established within, or in connection with, a retirement home, which offer ‘reception facilities, during the day, to elderly people living at home’. At the centre, elderly people receive ‘assistance and care appropriate to their loss of independence’. Comparing the type of care given in such centres with that provided in a different type of centre that is provided for under the order, namely: ‘care centres’, it can be seen that the former are intended for elderly people with a lesser degree of loss of independence, while the intended users of the latter are persons with severe disabilities. ( 6 )

30.

Likewise, the defining feature of the specific services that day reception centres are charged with providing, as described by Femarbel, is not that they are medical in nature (in contrast to those known as care centres), but their function of receiving elderly people and providing social interaction and basic supervision. Again according to Femarbel, although this has not been disputed by COCOM, such centres do not have a complex infrastructure and are open for their users to visit at any time of day, for lunch or for leisure activities. Although the order of 24 April 2008 does stipulate the attendance of a nurse, this requirement is so that medication prescribed by a doctor can be administered when necessary.

31.

Turning our attention now to night reception centres, important differences may be noted on account of their being open at night. First of all, the dual system of ‘care centres’ and ‘reception centres’ that exists in the case of day centres does not seem to exist here, so that it may be assumed that night ‘reception’ centres also fulfil the role of care centres.

32.

In fact, Article 190 of the contested order provides that facilities (including night reception centres) must have ‘sufficient nursing, care and paramedic staff to ensure continuous supervision and treatment of elderly people’.

33.

Nevertheless, the fact that qualified healthcare staff are in continuous attendance does not, in principle, mean that the centre as a whole is specifically medical in nature. There is a permanent presence of this type of staff as those using the centre will only require their services occasionally. The primary function of the night reception centre is not to provide a medical service but to enable elderly people to rest.

34.

As the Commission has correctly pointed out, the fact that a healthcare service exists as part of a package of activities carried out by a centre does not automatically make the centre a provider of healthcare services. The decision as to how to classify an economic activity that might be established in a Member State must be taken on the basis of an overall assessment of its functions, particularly its most characteristic functions. The fact that Femarbel is relying on Article 9 of the Services Directive, which relates to freedom of establishment, confirms that what it is seeking to do is to oppose provisions that constitute obstacles to setting up an ongoing concern rather than to its ability to provide occasional services in the market.

35.

In the light of the foregoing, I take the view that, with regard, first of all, to day reception centres, these do not constitute centres for the provision of ‘healthcare services’ within the meaning of Article 2(2)(f) of the Services Directive. Both the nature of the services provided and the type of staff that provide them suggest that the healthcare function is not predominant and that the presence of healthcare staff is not such as to make it a healthcare service.

36.

For the reasons set out at points 31 to 33, the case of night reception centres may be different. However, if the foregoing assessment, namely that the particular characteristics of the night centres do not amount to more than occasional or incidental medical care, is confirmed, which it is a matter for the referring court to decide, the conclusion must be the same.

37.

Nor is the Services Directive applicable to ‘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’. This exception, set out in Article 2(2)(j) of the Directive, is relied on by COCOM to argue that the Directive is not applicable to day reception centres or night reception centres. Femarbel, the Netherlands and the Commission, on the other hand, take the view that such centres do not constitute ‘social services’ within the meaning of the provision in question, and that they are therefore subject to the provisions of the Directive.

38.

Article 2(2)(j) of the Services Directive concerns social services of an economic nature. This is apparent from subparagraph (a) of Article 2(2), which excludes non-economic services of general interest from the ambit of the Services Directive. Setting non-economic services to one side, the exclusions relating to services of general interest that follow must, logically, refer to services of an economic nature.

39.

There can be no doubt that day reception centres and night reception centres are economic activities, in that their function is to offer services in a market governed by the principle of free competition. ( 7 ) The difficulty in this case is not, therefore, in deciding between the exceptions under subparagraph (a) and under subparagraph (j), for it is clear that we are dealing with the latter.

40.

The difficulties of interpretation arise when we come to address the wording of subparagraph (j), which, in contrast to subparagraph (f), creates an exception with twofold conditions.

41.

In the first place, from the point of view of the content of the service, subparagraph (j) simply refers to a series of social services to which the exception applies, including ‘support of families and persons permanently or temporarily in need’. It is not disputed that this would be the case of day reception centres and night reception centres.

42.

In the second place, again by contrast with the ‘healthcare’ exception under subparagraph (f), subparagraph (j) limits the exception to social services which are ‘provided by the State, by providers mandated by the State or by charities recognised as such by the State’. The exception therefore covers three specific ways of arranging the provision of the service. The first is the State providing it directly by means of public authorities. The second concerns indirect provision through private bodies, on condition that a provider ‘mandated’ by the State is involved. The third relates, once again, to a possible direct provision, but through charities recognised by the State. Since the first and last ways of providing the service are not in question, I shall restrict my analysis to the scope of the second, namely, provision ‘mandated’ by the State.

43.

By contrast with the first and third method of organisation, the provision of the service by a private body under a ‘mandate’ by the State, requires just that: a ‘mandate’. It is the scope of this term that needs definition, for not every activity carried out by a private body and, to some extent or other, determined by the State, constitutes a ‘mandate’. Otherwise, any activity that is merely supervised by, or subject to rules imposed by, the State could be seen as falling under a ‘mandate’ addressed to the undertaking providing the service.

44.

The Services Directive is of no great assistance in defining the scope of the expression ‘providers mandated by the State’. Comparing the various language versions does not help either. The French and English versions refer to private entities that are respectively ‘mandatés’ or ‘mandated’ by the State, while the Italian and Spanish versions use the terms ‘incaricati’ or ‘encargadas’, respectively. The difference in the use of the terms does not appear to be decisive from the point of view of interpretation of the provision.

45.

The analysis of the language versions must therefore lead us towards an independent interpretation of the expression ‘mandated by the State’, that conveys the existence of an obligation to provide a social service that is sufficiently related to the general interest to be covered by the exception under Article 2(2)(j) of the Services Directive. To that end, I shall examine the broad logic of the provision and then go on to propose an interpretation consistent with its nature as an exception but in keeping with the objectives sought by the Services Directive.

46.

As explained in the recitals in the preamble to the Services Directive, the purpose of excluding certain social services of an economic nature is to ‘guarantee the fundamental right to human dignity and integrity’, as they ‘are a manifestation of the principles of social cohesion and solidarity’. The Member States therefore have wide discretion in relation to the organisation of their social protection systems, as the Court of Justice has pointed out on numerous occasions. ( 8 ) It is for each Member State to decide on the relevant conditions and form of organisation, these being matters that are not predetermined by EU law, including the Services Directive. Essentially, the Services Directive confirms the leeway enjoyed by the Member States in that respect, by referring in Article 2(2)(j) to particular social services, but only to those ‘provided by the State’, ‘mandated by the State’ or provided by ‘charities’.

47.

In accordance with a rule of interpretation frequently applied by the Court of Justice, exceptions to a general rule must be interpreted strictly. This is obviously true in the case of the exclusions from the scope of the Services Directive listed in Article 2. The exclusion relating to social services must therefore be interpreted strictly, which leads us to the next point.

48.

Because the social services referred to in Article 2(2)(j) are public in nature and must be made widely available, there is a duty on the part of the public authorities to provide those services. ( 9 ) It is precisely this public service obligation that forms part of the ‘mandate’ to which Article 2(2)(j) of the Services Directive refers when it includes within the exception those social services that are provided by a private body, but on behalf of a public authority.

49.

When the social services referred to in Article 2(2)(j) are provided by a private body, that private body may be subject to private law, but the nature of the service will always have a connection with the public service obligation that is the reason for its provision. ( 10 ) In such cases, the ‘mandate’ given to the service provider is not simply a relationship of obligations, but a mandate based on a social service recognised by statute, guaranteed by the creation of a subjective social right and made generally available to persons who fulfil certain objective conditions relating to their personal circumstances.

50.

Thus, the ‘mandate’ mentioned in Article 2(2)(j) of the Services Directive does not refer to a straightforward legal obligation imposed on the private provider of a social service, but rather to a public service of the type previously described that is entrusted to a private provider, placing that provider in a situation in which it is answerable to the State that is different from that which usually arises in the context of a service provided by means of a public concession or similar contractual arrangement. The position of the service provider is one involving a special relationship, governed by public service obligations, specifically for the purposes of social protection. It is a ‘mandate’ of this kind that we should be looking for when we examine the relationship existing between the owner of the day reception and night reception centres and the State.

51.

As COCOM has explained, private entities may set up day reception and night reception centres, subject to the requirements of the programming and approval systems, which are two different legal bases used by a public authority to permit a centre to start operating and also to impose conditions on the way the service is provided. As COCOM confirmed at the hearing, centres compete with each other on price and on quality of service, although the former is subject to a tariff structure setting maximum prices.

52.

It is also apparent from the case file that day reception and night reception centres are strictly economic activities carried on by private bodies, including profit-making legal persons. They are economic activities because they consist in making a service available on the market and obtaining remuneration in a similar manner to a commercial activity. In fact, the conditions listed in connection with approval, particularly as applicable to day reception and night reception centres, would indicate that they are requirements for the provision of a service and not public service obligations.

53.

As is apparent from the file before the court, and without prejudice to the assessment to be made by the referring court, approval does not entail taking on obligations that fall within the framework of a complex financing system administered by the public authorities, as is the case with public service obligations. The conditions set out in Article 11 of the COCOM order of 24 April 2008 constitute a list of standard requirements to be met in the case of a service, rather than the special requirements that characterise the provision of a public service of the kind defined in points 48 and 49 of this Opinion.

54.

Consequently, without prejudice to the assessment to be made by the referring court, I take the view that the day reception and night reception centres regulated by the COCOM order of 24 April 2008 do not fall within the second case referred to in Article 2(2)(j) of the Services Directive, namely: ‘providers mandated by the State’.

55.

In the light of all the foregoing considerations, I propose that the Court reply in the following terms to the question referred for a preliminary ruling by the Belgian Cour Constitionnelle: