Patient mobility, the EU Charter's ‘right to health care’, and Member State competence: Towards a new role for fundamental rights

This article traces developments in the case law on Directive 2011/24/EU and Regulation (EC) No 883/2003. It is observed that a fundamental rights-based dimension has become perceptible following the EU Charter's promulgation and particularly after the successive decisions in Elchinov , Petru and A v. Veselības ministrija , yet which nevertheless remains underdiscussed and largely unacknowledged. Various judgments’ reasoning and practical outcomes are analysed as constituting evidence of a fundamental rights-based dimension to cross-border healthcare entitlements in EU law. The four threads to this rights-based dimension are a right to a broad and proportionate assessment of patient need for cross-border treatment, a right for that treatment to be effective, a right to access such treatment in properly-resourced facilities available within national territory, or else to be granted access to cross-border treatment, and a right to access such treatment on a non-discriminatory footing. Future directions for the law are then considered, including how if Article 35 were more explicitly recognized as an influence in the case law, this provision may structurally be conceptualized either as an analytical aid for cross-border healthcare cases implicating a substantive ‘minimum core’ of rights, or as requiring some form of proportionality assessment in the consideration of cross-border treatment applications .