This 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.

Free 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.

The free movement provisions enable EU citizens to follow their own ethical preferences by going to a Member State that has made a different ethical choice from their home Member State. However, UK citizens who have assisted suicide or euthanasia abroad could be criminally prosecuted on their return to England. This possibility of a criminal prosecution constitutes a restriction on free movement. Nevertheless, the free movement provisions have so far not been used to challenge the English prohibition of euthanasia. The aim of this article is to show that, based on its ultimate aim, free movement law does have a legitimate role to play in ethical issues. The internal market is based on a principle of recognition, which forces Member States to engage with regulatory choices made by other Member States. This also applies to ethical issues. Member States are not required to justify the existence of different ethical choices. However, if they decide to restrict free movement, they have to be able to show that these differences in fact exist. This approach achieves a balance between the right of citizens to make their own ethical choices, and the ability of Member States to protect their legislation on ethical issues.

This 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.

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).

With the New Approach for goods, the EU has created a regulatory framework for placing products on the market in which both public and private parties have an important role to play. The various cases which have been brought after the PIP breast implants scandal show the difficulties with trying to link this ex ante regulatory framework to potential liability for defective products. National courts have reached different conclusions about the scope of the obligations of certification bodies in the New Approach. Since these issues are about the fundaments of the construction of the New Approach, it would be desirable for the ECJ, and perhaps even the European legislator, to get involved.