The COVID-19 Crisis - How will the EU Adapt?

7 May, 2020

As of May 6, 2020, the COVID-19 pandemic has resulted in over 3.7 million confirmed cases and 259,000 deaths worldwide. Europe has become one of the epicenters of the outbreak, with several European Union (EU) Member States being hit particularly hard. A cross-border threat to public health and safety with significant socioeconomic consequences, the pandemic poses a substantial challenge to the EU. To theorize how this crisis is likely to change the Union’s institutions, policies, and competences, we begin by examining the various pressures and constraints that have shaped the EU’s involvement in health issues—including market objectives and previous public health emergencies. Using this information, we next explore the pandemic’s potential to compound the other challenges the EU is currently facing, followed by analysis of how the EU should respond.

EU Institutions, Competences, and Policies: Evolution and Current Structure as it Relates to Public Health Matters

In general, the EU’s scope of power extends far beyond what was envisioned when its predecessor was founded in the 1950s. As a multilayered supranational political system, it is comprised of institutions with extensive executive, legislative, and judicial powers. As the legal basis of the EU, the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) confer competences upon these institutions. Under the principle of conferral, the EU can only act within the limits of these competences (Art. 5 TEU), which are divided into three main categories. Areas of exclusive competence (Art. 3 TFEU) are those in which the EU has sole responsibility (e.g., competition rules, monetary policy, regulation of the single market). In areas of shared competence (Art. 4 TFEU), European-level policies aim to supplement existing national policies (e.g., social policy, environmental regulation, consumer protection, common public health concerns). Finally, in areas of complimentary competence (Art. 6 TFEU), the EU may only intervene to support, coordinate, or complement Member States’ actions (e.g., health, education, industrial policy). The exercise of these competences is subject to the closely related principles of proportionality and subsidiarity. Or more specifically, the EU’s actions must not only refrain from going beyond what is necessary to achieve the objectives of the treaties (proportionality), but be more effective than action taken at the national, regional, or local level (subsidiarity).

Member States have been reluctant to transfer major powers on health to the EU. One explanation behind this resistance is that health services are a central component of a nation’s welfare provisions and, hence, have legitimating and state building capacities. Art. 168 TFEU limits EU involvement in health policy and stipulates that while a high level of human health protection must be “ensured in the definition and implementation of all Union policies and activities,” the EU cannot organize and deliver health services and medical care—which remain the purview of national governments. Instead, Union actions aim to complement national policies and support cooperation between Member States. These actions “shall be directed towards improving public health,” including fighting major health scourges (Art. 168(1) TFEU).

Despite the EU’s limited legislative competence, however, it has developed new policymaking mechanisms and actors to further its powers within the field of public health. Our analysis, thus, needs to look beyond formal legal structures to consider non-legislative and informal practices. In this case, the EU may utilize incentives and the open coordination method by, for example, financing research, initiating public health programs, or issuing recommendations. While the successful implementation of these measures is highly dependent on the willingness and commitment of Member States, they have enabled the Union to expand its involvement in health matters. This expansion has been accompanied by a proliferation of actors that extends beyond the EU’s core institutions to include European agencies, working groups, experts, and committees. In general, those involved in the EU’s health emergency response span the World Health Organization (WHO), Directorate-General Health and Food Safety (DG SANTE), European Centre for Disease Prevention and Control (ECDC), European Medicines Agency (EMA), Early Warning and Response System (EWRS) Committee, Health Security Committee (HSC), Emergency Response Coordination Centre, and Friends of the Presidency. This variety of actors highlights how health policy has become increasingly centralized, specialized, and autonomous at the European-level.

The Relationship between Health Policy and the Internal Market

Much of the Union’s health activity has been shaped by other EU objectives, such as agriculture, economic, and environmental policy. In particular, deepened Union health regulation has been spurred by the relaunch of the internal market project, which has demanded continuous reconciliations of market aspirations with health concerns. For example, in removing barriers to trade while introducing regulation at the supranational level, the Common Agricultural Policy involved both negative and positive integration. This positive integration entailed regulation on food safety, sanitary supervision, and animal health, including the reduction of zoonotic diseases. Neo-functionalist theory, especially the logic of spillover, can help explain these developments. Essentially, functional integration in core policy areas, like the single market, have necessitated integration in others to reach the initial objectives. This market connection has served as the legal basis for the harmonization of other public health provisions at the European-level (e.g., medicines, substances of human origin). Common safety concerns in public health matters is the sole health area where the Union and Member States share competence.

Likely Changes in the Wake of the COVID-19 Crisis

Despite attempts to constrain the EU’s involvement in public health issues, Member States have sought out not only each other to respond and discuss policy solutions at the European level for major disease like HIV/AIDS, but DG SANTE for leadership in crisis management situations. Anniek de Ruijter acknowledges that, in general, crises tend to give the Union more powers. This is certainly the case for the field of public health where crisis response has been an important and consistent policymaking mechanism for the EU. In fact, a key impetus for DG SANTE’s inception was the bovine spongiform encephalopathy crisis in the 1990s. In past public health emergencies, the EU has often stepped outside its formal competences. During the 2009 Swine Flu pandemic, it played a role in vaccine and antiviral procurement—despite Member States having struggled to come up with a mechanism for joint procurement since 2005. In 2013, the Commission proposed and adopted Decision No. 1082/2013/EU even though in creating a voluntary system for the joint procurement of medical countermeasures, the decision directly impacted the ability of Member States to provide for welfare access to medicines. This decision also provided a strong legal mandate to the HSC, an informal advisory group initiated in response to the 9/11 attacks. During the Swine Flu pandemic, the EU frequently combined the regulatory EWRS Network Committee with the HSC, effectively linking informal cooperation with more formal regulation.

Both of these developments illustrate how a cross-border health threat may extend EU health policy by creating a basis for institutionalizing and formalizing the ad hoc policy practices and solutions that emerge during the response. Moreover, a crisis can inspire collective action and high rates of convergence amongst Member States that make it possible to adopt more binding measures at the EU-level. The Europe Against AIDS Program is one great illustration of this. Drawing from these examples, we see what factors have driven the EU to change in the past and can predict how it will evolve moving forward. We can assume that the COVID-19 pandemic will similarly offer an opportunity to further expand the EU’s power in the field of public health. Thus far, the Commission has initiated joint procurements with 25 Member States, as well as the first ever European stockpile of medical equipment (e.g., ventilators, personal protective equipment, lab supplies)—90% of which is being financed through RescEU. It has also established an ad hoc advisory expert panel and has proposed, together with the European Council, a joint European roadmap towards lifting COVID-19 containment measures.

As this EU-wide coordinated approach is designed and implemented, the EU can be expected to play a greater role. Alberto Alemanno recently argued that this roadmap and other recent documents (e.g., COVID-19 Guidelines for Border Management) “show a timid yet auspicious attempt by the Union to operationalize untested competences contained in the Treaties.” As such, they are likely to serve as a catalyst that further advances the Union’s involvement in health matters. Considering the pandemic’s devastating socioeconomic impact, it is probable that this involvement finds some legal basis in internal market objectives. This may include a stronger mandate that expands the EU’s role in preparedness and response and rethinks the principle of subsidiarity in times of crisis. The pandemic may provide the impetus to also reconsider the Eurozone’s legal and political accountability structure. Finally, the mounting frequency of natural and man-made disasters—like disease outbreaks—has served as justification for the EU’s increasingly robust civil protection mechanisms (e.g., RescEU, European Medical Corps), which can be expected to develop further in the wake of COVID-19.

Related Challenges

The COVID-19 pandemic is not the only crisis the EU is currently facing. These other challenges (e.g., Brexit, eurozone crisis, refugee crisis, climate change) span multiple policy fields and threaten to undermine EU unity. The COVID-19 pandemic has the potential to intensify many of the pre-existing trends which have driven these issues—including inequality, nationalism, isolationism, xenophobia, racism, fragmentation, populism, authoritarianism, and district in government. For instance, many Member States have responded to the COVID-19 pandemic with nationalism and isolationism by closing borders, banning exports, and hoarding essential supplies. Although the free movement of goods, services, and people are central tenets of the EU, movement may be restricted on the basis of public health considerations (see Arts. 36, 45, 52 TFEU Treaty).

While these public health exceptions have helped spur the previously discussed adoption of public health provisions at the European-level, they are now being utilized as justification for the reintroduction of internal borders. By March 24, 2020, 14 Schengen countries had notified the Commission that they had reinstated border control due to the pandemic. In response, the Commission has issued guidelines on health-related border management measures to ensure the availability of goods and essential services. And while the restrictions have since been lifted or modified in accordance with these recommendations, the fact remains that the reflex of Member States was to adopt national measures even at the expense of others (i.e., Italy).

As restrictions to free movement also illustrate, fundamental rights may be restricted during a public health emergency through various measures (e.g., curfews, lockdowns, forced border closures). In the case of COVID-19, these countermeasures have been necessary to limit the virus’ spread. But they have also affected the balance between individual rights and the protection of the population at large. If these ad hoc measures lack sound democratic oversight, they risk being ineffective and unjust. The COVID-19 pandemic could, thus, amplify the human rights challenges currently affecting the EU, particularly systematic rule of law violations in Member States and violations against the rights of minorities, refugees, and asylum seekers. This possibility is already unfolding in Hungary, where the Prime Minister, Viktor Orban, has used the crisis as pretext to execute an unprecedented power grab allowing him to rule by decree.

How Should the EU Respond to the COVID-19 Crisis?

The COVID-19 pandemic reveals that our health systems are interdependent and vulnerable. It also underscores that health policy is a cross-cutting policy area that is deeply intertwined with other sectors, including the single market. We can hope that these realizations will mean we no longer have to justify the need for solidarity and collaboration at the EU-level on health issues moving forward. Whether the EU has been granted the full range of powers necessary for a coherent and effective response to a cross-border health threat of this magnitude is debatable. One camp, which this article subscribes to, would argue that although the EU’s response has been imperfect, slow, and at times lacking, it has also been substantial considering how ill-equipped the Union is to tackle such challenges. Ideally, this crisis will serve as an impetus to strengthen the EU’s mandate in public health matters.

Due to their reluctance to invest the EU with more powers relating to health, Member States have until this point largely relied on informal and ad hoc processes. The EU’s involvement in health policy has, thus, operated with limited democratic feedback. This has elicited serious questions of whether the Union’s actions in this space can adequately safeguard the values and rights inherently-related to health issues. If the Member States were to formalize the Union’s involvement in public health matters, we could address this aspect of the democratic deficit and any related disconnect between the public and the EU political system. This institutionalizing process would also provide the EU a stronger platform to assume greater global leadership in the field of health and fill the power vacuum left by the United States as they continue to distance themselves from the WHO and the international community. If the EU struggles to step up, we may witness China and/or a number of large-scale private efforts fill this gap. These new initiatives could end up competing with EU agencies and institutions over funding and mandates and, ultimately, undermine the Union’s ability to respond to similar crises in the future.

Moving forward, the EU should encourage the repositioning of public health as a priority of extreme economic importance. As part of policy responses to the 2007-2011 economic crisis, ten Member States reduced their healthcare budgets. These decisions have hindered health systems as they combat the COVID-19 pandemic. We must learn from these past mistakes and prioritize social investments, universal health coverage, and health as a human right. This includes revising austerity policies to ensure that any fiscal consolidation measures do not compromise the quality of national health systems—particularly healthcare access for poor and vulnerable populations, who will be disproportionately affected by the ensuing economic crisis. To mitigate this economic fallout, the EU has already mounted a quick, sizable, and coordinated response involving both fiscal and monetary interventions.

As noted in a prior piece, the EU must also work to prevent a full-blown depression, particularly by formulating a substantial recovery plan. This article discussed how a comprehensive plan would use the COVID-19 crisis as a catalyst to accelerate the green transition. In addition, such a plan should enhance national surveillance and health system capacities. This can be accomplished by re-focusing limited resources and conditioning relief on improved public health policy measures and the adoption of vaccine targets. The strongest instrument of pandemic governance is national legislation. Yet, PHLawFlu found a fragmented legal landscape in which many Member States had failed to enact the domestic laws necessary to underpin key pandemic countermeasures. This has had devastating consequences. Moreover, vaccine coverage is a critical, cost-effective tool in the control of communicable diseases. In recent years, however, lower levels of vaccination coverage across member states has led to a number of serious outbreaks of vaccine-preventable diseases.

Various steps the EU can take include: (a) setting European-wide vaccination policies, (b) becoming more involved in overseeing national public health regulations, (c) continuing to evolve its framework for managing crises and disease outbreaks, (d) investing in new medicines, testing materials, and the production and stockpiling of critical equipment within the EU, and (e) aligning strategies on communicable diseases and other cross-border health threats, including with neighboring and accession countries. The Union should also invest more in eHealth solutions, which deployed across Member State can play an important role in efficiently managing resources, improving interoperability between health systems, and supporting cross-border flows of information. While there are those who may balk at some of these actions and argue for less Union involvement, if anything this virus has demonstrated the vital interconnectedness of the EU.

Lastly, the EU must address the situation in Hungary or risk empowering an authoritarian state and existential threat to Union values. To do so, the Commission should condemn the actions of the Hungarian government and initiate an emergency rule of law report. This should be followed by an activation of the rule of law mechanism (Art. 7 TEU), which could culminate in a decision by the Council to activate sanctions, including suspension of the voting rights of Hungarian government’s representative in the Council. To halt the alleged use of EU funds to consolidate Hungary’s one-party state and enrich members of its oligarchy, the Commission and Council could adopt a conditionality principle in the EU’s multi-annual budget. Finally, although the European People’s Party (EPP) has suspended Orban’s Fidesz Party, they should consider expelling Fidesz from their ranks. While this is certainly easier said than done and would need to be approached tactfully, the suspension was implemented prior to Orban’s most recent power grab. If the EPP fails to take further measures that condemn Orban’s latest move it only signals their acceptance of his actions. With other countries in the bloc (e.g., Italy) at risk of falling to populist/Euro-sceptic governments—a development which could be hastened by the COVID-19 crisis and partially paralyze EU decision-making—the Union needs to act quickly and decisively.

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