As EU Health Law and Policy is often seen as a creation of courts, rather than legislatures or executives, Clemens Rieder investigates the roles that national courts and the CJEU have played in the unfolding of EU Health Law and Policy. Rieder considers the implications of both actual litigation, and the ‘shadow of litigation’, which may indeed be more important. The relationships of the CJEU with national courts, the governments of the Member States and the European Court of Human Rights in Strasbourg are all crucial institutional contexts for the development and future trajectory of EU Health Law and Policy. The preliminary reference procedure grants the CJEU legitimacy, but ultimately leaves control in the hands of national courts. Member States also enjoy a horizontal dialogic relationship with the CJEU, where both actors have influence. The ECtHR may be of growing importance in the coming years.
Clemens M. Rieder
So far cross-border movement of patients in the EU has taken place in the context of free movement law. This chapter is an attempt to conceptualise cross-border movement of patients in the context of human rights. The chapter examines in particular two issues: first, whether the EU Charter of Fundamental Rights (EU Charter) has the authority to make existing boundaries more permeable than the current framework, which is based on free movement law; and secondly, whether the EU Charter possesses the authority to redraw existing boundaries at all. Addressing these two questions is of particular importance in relation to solidarity: while the matter of boundary-permeability only has an impact on the degree of national solidarity, boundary-redrawing prescribes supranational solidarity.