In this case (Femarbel), over night care centres can be considered as a kind of accommodation, because they provide both social care and healthcare.
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) aims to facilitate free movement of services within the EU. It expressly excludes healthcare services (including housing) from its scope of application, but covers elderly care.
However, a 2008 Belgian order submitted socal care and healthcare activities to an authorisation for carrying their activities, including elderly care centres. Following Femarbel's request, the Belgian constitutional Court asked the ECJ whether it applied to “day-care centres, in so far as they provide assistance and care appropriate to the loss of independence of elderly persons, and likewise night-care centres (…), in so far as they provide assistance and healthcare which cannot be given to elderly persons by their close relatives on a continuous basis”.
The ECJ provided guidance to the national court. It held that "the exclusion of healthcare services from the scope of that directive covers any activity intended to assess, maintain or restore the state of health of patients, where that activity is carried out by healthcare professionals recognised as such by the Member State concerned, regardless of the ways in which the facilities (...) are organised and financed or whether they are public or private. It is for the national court to ascertain whether day-care centres and night-care centres are excluded from the scope of that directive, having regard to the nature of the activities carried out by the healthcare professionals in those centres and whether those activities constitute a principal part of the services offered by those centres." It further stated that "the exclusion of social services from the scope of that directive covers any activity relating, inter alia, to the care and assistance of elderly persons, where that activity is carried out by a private service provider which has been mandated by the State by means of an act conferring, in a clear and transparent manner, a genuine obligation to provide such services under specific conditions. It is for the national court to ascertain whether day-care centres and night-care centres are excluded from the scope of Directive 2006/123, on the basis of the nature of the principle activities of care and assistance of elderly persons carried out in those centres, and the status of those centres under the applicable Belgian legislation." (para 53, emphasis added). The Court did not clearly exclude night-care centres from the scope of the directive.
Cecile Benoliel
