Is There a Role for Fundamental Rights in EU Healthcare?

This panel examines different fields in which human rights protection potentially could and maybe should play a more prominent role. This paper makes its contribution to the panel by focusing on one particular area of law in which one would have expected that human rights would leave their mark which is the field of health care. However, what is to be noted is that to the contrary of what one would expect, so far, the ECJ has remained rather careful when it comes to the application of human rights in this field. Instead, the Court has remained committed to the application of conventional free movement law in order to promote various aspects of health care law. The aim of this paper is at best threefold: first, the paper wants to provide a descriptive overview of healthcare law in which the Court has drawn on free movement law instead of human rights law. In a second step the paper seeks to offer an explanation or justification as to why the Court may have refrained from drawing on human rights law. The paper then engages in some normative considerations as to whether the Court ought to apply human rights law instead of economic rights and what the possible consequences would be of any such move.