EU health law and policy in and after the COVID-19 crisis

The very first shock of COVID-19 might beover, but the crisis continues. We have already learned much about what the European Union can and cannot do to help its Member States and peoples manage the crisis—and what it might be able to do better.¹

The EU’s contribution to fighting COVID-19 was initially limited because member states wanted it so. From a treaty article on public health that carefully limits EU competencies, to legislation that avoids authorizing forceful EU action, to a budget that puts little money into health and has no health emergencies line at all, the EU’s member states have made it clear that they want the EU to be a limited actor. It can meet zoonoses with forceful action, but once they become human diseases the EU is hamstrung.² Public health is a strange place to rein in European integration, for everything we know about the movement of diseases, animals and people show that there already is European public health.

COVID-19 exposes the tension between tight social, economic and political integration and deliberately weak EU health powers. The Member States must collectively manage a long and difficult shared crisis. What can they do with each other through the EU?

We focus on policy ideas that are within broad EU health policy, though social and economic policy responses will be crucial to managing the pandemic and its effects. Our ideas use existing EU legal bases (Article 168 TFEU) and administrative forms that can be quickly adapted to this crisis.

First, and most urgently, the EU needs better surveillance and testing capacities from top to bottom. At the top, the ECDC needs to become more than a network hub for data and guidance. Surveillance across the EU, and indeed within Member States, is still slow, inconsistent and patchy.³ The ECDC can provide common methodologies for information gathering, but it has no way to ensure that Member States indeed provide information in the prescribed manner. To make information flows more integrated and useful, the EU could direct resources and create obligations for Member States to improve surveillance and reporting (e.g. by reducing the time it takes for data to get from a lab to capitals to the ECDC).

Article 168 TFEU allows for the EU to adopt ‘incentive measures’ regarding the coordination of cross-border health threats. This would also be the basis, bottom-up, for the EU to supply resources for testing and surveillance coupled with standards for performance. Truly improving testing and surveillance entails health systems strengthening, moving from supporting capital investment to supporting local health care capabilities. The funds could come from existing EU money (e.g. cohesion funds) and should be coupled with measures to ensure they are not diverted to prop up authoritarian regimes. These measures will enable a ‘test, test, test’ model that helps escape future rolling lockdowns and outbreaks.⁴

Second, data protection and privacy are substantially EU competencies. The kinds of SARS-CoV-2 control models that appear to work in, e.g. South Korea and Taiwan, depend on intensive tracing via mobile phones as well as big data techniques.⁵ Current EU data protection legislation allows for far-reaching infringements of rights to privacy and data protection to safeguard population health. But a state of exception is not a good basis for key public health and health care measures that fundamentally depend on trust. New legislation resting on existing legal bases could allow new health technologies used for surveillance and contact tracing and for the use of large data setsand AI. All of these technologies are showing their uses, and challenges, in the pandemic, and the viability of both EU privacy law and public health policy depends on finding a technically viable and politically legitimate legal balance.⁶

Third, the current Decision 1089/2013/EU and the Joint Procurement Agreement that was adopted on this basis, create the possibility to jointly procure medicinal counter measures for large scale disease outbreaks.⁷ This system came into existence in the wake of the influenza H1N1 outbreak, when some Member States pre-purchased all the vaccines before any other country could get their hands on them, while pharmaceutical companies played member states off against each other. That experience taught governments about the virtues of working together in cutthroat global markets. The current system of voluntary procurement works as a procedural framework for adopting a multilateral contract and allocation criteriaare decided separately for each purchase.

In a crisis, this system is flawed. Member States that are currently participating in the public procurement processes can simultaneously negotiate bilateral contracts with manufacturers for pandemic counter measures (Article 1(5) Joint Procurement Agreement). Nor does joint procurement mean re-distribution to those countries that are hit hardest. It is a buyers’ club rather than a shared resource.

To address this and future crises, the EU needs a mandatory obligationof solidarity in this area. That would mean that Member States commit to jointly procure medical counter measures in case of a crisis, with a specifically allocated part of the health budgets that does not allow for bilateral processes that undermine the EU process and a central authority at EU level to allocate and distribute based on need through guidance of the ECDC.⁸ It is ambitiousin its demands on EU solidarity and political foresight, but it is a potentially big win for the EU and a way to show all of its citizens its value while increasing the efficiency of its preparedness measures by fully exploiting the huge size of the 446 million person European market for health products.

Fourth, there is a case for strengthening the EU civil protection system. There is no dedicated EU health emergencies budget. RescEU, the improved civil protection scheme that launched in 2019, is essentially a matchmaker between Member States with spare resources and Member States with needs. Strengthening it would require an ability to call on pledged member state resources regardless of whether it is convenient for the member state. That would mean EU supplies in EU warehouses, something that only began on 19 March; and staff and planning so that resources are based on risk assessment rather than what Member States are willing to donate or what issues were recently fashionable.

The EU should not and realistically cannot stumble through COVID-19 half on lockdown, half fatalistic and all fractious. Itsgovernments and people will need credible, real-time health informationacross the continent and the capacity to control hot spots. Even after COVID-19 has passed, global heating, anti-microbial resistance and globalization ensure that there will be more such needs for public health action.

It is a truism that European public health, and European integration, grow through crises.⁹ EU public health, like the EU, has ‘failed forward’ several times.¹⁰ COVID-19, by far the biggest public health crisis of the EU’s history, could prompt the biggest and most valuablesteps yet.

Conflicts of interest: S.L.G. is Senior Expert Advisor to the European Observatory on Health Systems and Policies.