The Doctor, the Patient, and EU Law: The Impact of Free Movement Law on Quality Standards in the Healthcare Sector

This article analyses the impact of the free movement provisions on quality of healthcare in the EU. The application of the free movement provisions in the healthcare sector has restricted the freedom of Member States to set their own medical standards. International scientific evidence has to be taken into account. This impact reaches beyond the provision of cross-border healthcare. As a result, patients who are unable to travel abroad also benefit from higher medical standards. Individual challenges to national legislation under the free movement provisions are more successful in improving medical standards than adopting uniform European standards. Without a genuine internal market for healthcare services, European minimum standards do not contribute to improving the quality of healthcare in the EU

Rethinking the Structure of Free Movement Law: The Centralisation of Proportionality in the Internal Market

This article analyses three important developments in EU free movement law from the perspective of the structure of free movement law. Each of these developments – market access, horizontal direct effect and the assimilation of justifications – is caused by structural changes in the application of the free movement provisions. Firstly, the Court of Justice of the European Union has used 'backwards reasoning', which means that the Court no longer maintains the consecutive order of the structure. Moreover, the Court has increasingly merged what were previously distinct stages of inquiry in free movement cases. The result is that the proportionality test has become the most likely tool to solve free movement cases. This process of centralisation can be explained by the Court's aim to guarantee the effet utile of the free movement provisions. However, the centralisation of proportionality has a number of important consequences. Ultimately, the (almost) exclusive reliance on proportionality to solve free movement cases does not improve the functioning of the internal market. Therefore, the Court should also develop and rely on the other pillars of the structure of free movement law

Legal Empathy in the Internal Market: Free Movement Law as a Comparative Dialogue

This paper characterises and analyses free movement law as an exercise in legal empathy. Negative integration in the internal market is based on and facilitated by differences in national laws, which are explored through the free movement provisions. This process results in dialogues between Member States, in which they are required to recognise and respond to the legal position of other Member States. Each of the pillars of the structure of free movement law has a distinct role to play in structuring these dialogues. Legal empathy in the internal market is about exploring and understanding differences in national laws. As such, negative integration becomes an exercise in comparative law. Comparative dialogues in the internal market result in learning effects, which may encourage or require Member States to amend rules. A balance should be maintained between harmonisation and negative integration to ensure that Member States engage in legal empathy. Brexit shows that legal empathy is difficult to achieve without a general commitment to communicate through free movement law. Finally, comparative lawyers should play a more prominent role in free movement cases to improve the quality of comparative dialogues in free movement law

The liability of notified bodies under the EU's New Approach: the implications of the PIP breast implants case

In this article, we analyse the consequences of the CJEU’s judgment in Schmitt , a preliminary reference concerning the potential liability of the notified body TÜV Rheinland vis-à-vis women who had received breast implants produced by the French manufacturer Poly Implant Prothèse SA (PIP). Our discussion focuses on (1) the impact of the judgment on the damages actions that women have brought against TÜV Rheinland before national courts; (2) the future regulation of medical devices in the EU; and (3) the regulation of private standardisation and certification in EU law. We argue that Schmitt can be seen as part of a broader trend in the case law of the CJEU, in which private regulatory activities are gradually submitted to fundamental principles of EU law. While this "constitutionalisation" of private regulation strengthens the public accountability of these alternative forms of regulation, it also poses fundamental challenges to their current design and internal governance