Healthy Scepticism: Does the Charter Matter? A Study of the CFREU’s Effects on Health Law and Policy in the UK and Germany

This thesis studies the effects of Articles 1, 3, 20, 21, and 35 of the EU Charter of Fundamental Rights. Many academics assume that the adoption of a binding human rights document such as the Charter improves human rights protection. Such beliefs are also reflected in fears that the Charter will significantly change domestic policies. This thesis investigates these assumptions. Does calling something a ‘human right’ have notable effects on its implementation? Does the Charter significantly affect national policy? Do EU human rights impose unwanted constraints upon Member States’ health systems? Using an interdisciplinary analysis of the Charter’s practical impacts, the thesis studies whether specific Charter rights have caused top-down Europeanisation of health law and policy in the UK and Germany, including: Europeanisation through ECJ judgments; through national courts; and through the legislative process. The thesis takes process-tracing, an empirical methodology used in political science, and applies it to the legal field. Process-tracing is particularly suitable for assessing the multi-step phenomenon of Europeanisation. By breaking down theoretical literature into individual causal mechanisms, each of which can be tested with empirical evidence, the thesis establishes the reality facing two of the three largest Member States – bringing crucial clarity at a febrile moment in the UK-EU relationship. Ultimately, the thesis reaches three main conclusions: firstly, that the Charter does increase the significance of fundamental rights, something which manifests across the thesis; secondly, that this increased significance and thus the Charter has few to no policy effects; and thirdly that the Charter, unexpectedly, can reinforce Member States’ policy choices within internal market law. These findings not only provide empirical evidence against the prevailing wisdom on fundamental rights, they show the Charter increasing Member States’ freedom to act as opposed to imposing top-down control.