The regulation of healthcare in the European Union: member states' discretion or a widening of EU law? Femarbel and Ottica New Line

In the context of healthcare, the ECJ's jurisprudence has recently been clarified and codified in Directive 2011/24/EU on patients' rights in cross-border healthcare ("Patients' Mobility Directive"). Two judgments recently issued by the ECJ make interesting reading in this regard. While the facts of Femarbel and Ottica do not bear much resemblance to each other, the judgments illustrate that the definition of what falls under the umbrella of healthcare services is not always obvious. Moreover, the cases provide a timely example of attempts by commercial interest groups to use EU law to open up domestic healthcare markets to private, commercial service providers. As such, the judgments have the potential to provide more clarity on the scope of the Directive 2006/123 on services in the internal market ("the Services Directive") and Member States' discretion in regulating healthcare provision in their territory. Finally, the judgments provide further examples of the ECJ's willingness to adjudicate in cases concerning wholly internal situations.