Suchergebnisse

AbstractThis Article provides an empirical analysis of all free movement of doctors cases decided by the CJEU. The aim of the Article is twofold: to provide a 'characterisation' of the type of doctors who rely on free movement law, and to make a link between their reliance on free movement law and the concept of medical professionalism. In what circumstances, and with what purpose, do doctors rely on free movement law? And does their reliance on free movement law pose a risk to medical professionalism? The analysis shows that most cases before the CJEU focussed on the expertise and qualifications of doctors. Many cases were brought by groups of doctors or medical professional associations. In most cases, the aim of the doctor's reliance on free movement law was to defend medical professionalism. Nevertheless, some recent cases show that doctors do rely on free movement law to restrict their accountability towards patients or national healthcare systems. Moreover, these cases show that arguments based on free movement law are relied on in a broader range of non-specialised courts or tribunals. This makes it important that national courts continue to engage in a dialogue with the CJEU.

AbstractFree movement of patients has been criticised from the moment that the first patient cases reached the Court of Justice of the European Union ('CJEU'). The moving patient supposedly increases consumerism, reduces national solidarity, and has a negative impact on the quality of healthcare provided in some Member States. This article challenges the empirical foundations of such criticisms. An empirical analysis of all patient cases before the CJEU shows that a significant number of patients required urgent treatment, that their medical condition was life-threatening, and that they were supported by their treating doctor in seeking treatment in another Member State. Moreover, free movement of patient cases regularly lead to positive changes to national healthcare systems. Therefore, the negative attitude towards free movement of patients should be reconsidered. Patients, doctors, and lawyers must think more strategically about how free movement can be used to improve the quality of healthcare in the EU.

In James Elliott and Schmitt, the ECJ refused to extend the scope of application of European standards adopted under the New Approach to private law disputes. This article argues that the ECJ's judgments were based on a static interpretation of the concept of market access, which is inconsistent with how the concept of market access has been developed in free movement of goods cases under Article 34 TFEU. It argues for a more consistent and dynamic interpretation of market access. Such an approach would bring private liability cases like James Elliott and Schmitt within the scope of application of EU law. As a result, the conditions and requirements for liability in private law could be reviewed by the ECJ. If the ECJ is not willing to extend the scope of application of the New Approach in this way, the EU legislature should include rules on private liability in the directives adopted under the New Approach.

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.

Defence date: 13 April 2015 ; Examining Board: Professor Hans-W. Micklitz, EUI (Supervisor); Professor Stefan Grundmann, EUI; Professor Catherine Barnard, Trinity College, University of Cambridge; Professor Carla Sieburgh, Radboud Universiteit. ; This thesis analyses European standardisation of services and its impact on private law. It tells a story of two paradoxes. First of all, the EU – in particular, the European Commission – would like European standardisation of services to improve the internal market for services. However, it is not actually taking any steps to guarantee that European standardisation of services facilitates free movement of services. With the New Approach for goods, European standardisation of goods has been made a tool for internal-market building. Such a regulatory approach has not been developed for European standardisation of services. As a result, it is difficult for the EU to exercise control over the reasons of stakeholders to start working on European services standards. An analysis of European standardisation in the healthcare and tourism sectors shows that parties start making European services standards for various reasons, which often have little to do with the improvement of the internal market. Therefore, the Commission cannot rely on European standardisation as a regulatory strategy to improve free movement of services. Secondly, because there is no European regulatory framework in which European services standards play a clear role, the parties which make European services standards become responsible for their application in law. They want their standards to play a role in private law – in particular, in contract law and in certification schemes. However, although stakeholders want European services standards to be applied in private law, they do not really care about the requirements which are imposed by private law. European services standards are not adopted in a legal vacuum – they regularly interact and clash with existing legal regulation. There is a real risk that European services standards might contain provisions which breach the free movement and competition law provisions. This will prevent their successful application in private law.

In Fra.bo, it was held by the Court of Justice of the European Union ("CJEU") that "Article 28 EC must be interpreted as meaning that it applies to standardisation and certification activities of a private-law body, where the national legislation considers the products certified by that body to be compliant with national law and that has the effect of restricting the marketing of products which are not certified by that body" (author's headnote).

AbstractThis chapter will look deeper into the question of horizontal direct effect in the Viking and Laval cases by focusing on the effects of the Laval judgment. It will be submitted that the Laval case was an example of the horizontal enforcement of the vertical right to be protected by the State against interference with one's free movement rights under EU law. The trade union acted within a legislative framework which had been established by the State and which provided protection to the trade union. The CJEU's judgment established that this protection had been illusory, and the Swedish State assumed responsibility by amending two pieces of legislation. However, the reasoning of the CJEU did not sufficiently recognise the vertical nature of the proceedings. As a result, the Swedish Labour Court granted Francovich damages against the trade union, but these damages did not adequately compensate Laval for its losses. Therefore, the extension of horizontal direct effect to trade unions has resulted in inadequate judicial protection in this case. In future cases which present themselves as cases between two private parties the CJEU should more carefully investigate the responsibility of the State. A more careful investigation would open up the possibility of a Francovich claim against the State, if the State bore responsibility for breaches of EU law committed by private parties.