The public health emergency the world is currently facing with the COVID-19 spreading in all countries has major impacts at various levels. As Europe is the epicenter of the Coronavirus pandemic, we decided to take a closer look at the measures taken by the European Union in response to this crisis. To understand how and why the European Union acts in a particular way when it comes to legislating in a specific area, one must first understand that the EU may only legislate within the limits of the competences conferred upon it by the Treaties. Competences are divided by the Treaty of Lisbon in 3 categories. Article 3 TFEU grants exclusive competence to legislate and adopt binding acts to the EU in several areas, such as the establishment of competition rules necessary for the functioning of the internal market, and monetary policy for euro area countries. For the areas listed in article 3 TFEU, it therefore means that the Member States will only be able to legislate if the EU empowers them to do so. The second category of competences is found in article 4 TFEU, which grants shared competences to the EU and the Member States to legislate on matters such as the internal market or economic, social and territorial cohesion. It simply means that Member States will legislate and adopt binding acts where the EU has not exercised its own competence. Finally, article 6 TFEU deals with supporting competences, where the EU cannot legislate but only intervene to support, coordinate or complement the actions taken by the Member States. It concerns areas such as industry, culture, and, most important for the purpose of this article, the protection and improvement of human health. However, the area of public health is also found in article 4 TFEU dealing with shared competences; the EU has in this respect the competence to legislate together with the Member States on shared safety concerns in public health matters, limited to the aspects defined in the TFEU.
What does that mean in practice? Put simply, national states in time of public health crisis must take the lead and implement the measures they consider necessary to counter the threat. But unsurprisingly, the EU still has the duty to coordinate the national efforts and to support the Member States in the measures they decide to adopt. There are currently two European agencies dedicated to support national governments in public health issues: the European Centre for Disease Prevention & Control (ECDC), which monitors emerging disease threats to coordinate responses among national states, and the European Medicines Agency, which manages the scientific assessment of EU medicines on their quality, safety and efficiency.
In the present situation, the ECDC has already issued 39 communications on the virus between the 5th of January and 18th of March, providing guidelines on infection prevention, contagion rates, recommendations on how to deal with the situation regarding communal areas such as schools, and expertise on treating the weakest ones (elderly, underlying health conditions, pregnant women). However, the risk assessment of the ECDC in January regarding a potential outbreak in Europe of COVID-19 was said to be low to moderate, considering that the member states would follow the recommended prevention measures (social distancing, hygiene measures, etc). It is only at the end of January that the ECDC began to qualify the spread of the virus as likely instead of low, warning the European countries to implement and apply rigorous control measures.
Further guidelines were released in February, regarding the management of patients in hospitals, while Italy’s specific situation was first addressed by the ECDC on the 21st of February. The first emergency meeting between EU health ministers took place on the 13th of February, when only 46 cases were confirmed in the whole European territory at the time. This meeting was meant to serve the function of coordinating and ensuring the supply of medical equipment, providing support to hospitals, and financing research to develop a vaccine.
So basically, at the public health level, the European Union through the ECDC has regularly released various updates and recommendations on coordinating efforts against the virus to national states on a nearly daily basis. However, even if the European infrastructure allows for an efficient exchange of information on the crisis between Member States and specifically regarding the adequate public health measures to adopt in response to the emergency, the actual legal acts to be adopted ultimately rest on the Member States competences. It is important to recognize that population, health care systems and cultural norms differ greatly from one European country to another, meaning that one adequate legal measure adopted in response to the coronavirus crisis in one Member State can potentially not qualify as efficient or adequate in another Member State. This is why the public health competence is a national prerogative, with the primary goal for the national governments to protect their own populations through their national sovereignty, but still strongly helped and guided by the European agencies concerned.
Nevertheless, with regard to the drastic economic consequences the crisis is bringing about, the European Union undeniably has a much more active role than in the public health sector. Indeed, the crisis is of such significance that it allows the application of article 107(2)(b) TFEU, dealing with State Aid and enabling Member States to compensate companies for the damage directly caused by exceptional occurrences. Furthermore, Italy’s situation enables the Commission to resort to article 107(3)(b) in order to approve additional support measures to remedy a serious disturbance to the economy of a Member State. Surely, the use of this article will be needed for other European countries – Spain looking like a likely candidate next. With regard to the EU fiscal framework, the Commission together with the Council are planning to accommodate exceptional spending such as health care expenditure and relief measures for firms and workers. In addition, it will assist the Member States in their fiscal efforts, with the possibility of the activation of a general escape clause to accommodate a more general fiscal policy support to address severe economic downturns in the EU.
The outbreak is also having negative consequences on the EU transport systems, especially the aviation industry. To mitigate the impact of the crisis on this sector, the Commission is proposing targeted legislation to temporarily alleviate airlines from their normally required use of airports slots. The EU budget will also provide support to the affected companies and credit holidays to debtors. Additionally, it will protect workers from unemployment and loss of income to avoid permanent effect through the promotion of short-time work schemes, the preparation of a legislative proposal for a European Unemployment Reinsurance Scheme and the deployment of a European Social Fund, with up to 179 million EUR available in 2020. Finally, the Commission has proposed under a new initiative, the Coronavirus Response Investment Initiative, to direct 37 billion EUR under cohesion policy in the fight against the COVID-19 outbreak.
To summarize, the role of the EU in the public health crisis consists mostly of coordinating the efforts of the Member States in the national measures they decided to implement in response to the outbreak. It can be noticed however that while the EU’s role in the public health sector is more passive, consisting mainly in providing guidelines and recommendations to European countries, the EU does propose concrete actions with regard to the economic consequences the crisis brings about. This can be explained by the competences conferred to the EU and the Member States by the TFEU ; while the EU cannot directly legislate in the public health sector, it has the competence to do so together with the European countries (shared competence) when it comes to the economy of the internal market.
We hope you learned something with this article and understand a bit more why the EU takes or does not take specific measures with regard to the crisis. In the meantime, stay safe, at home if possible, brave and positive!
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