Break or Bend in Case of Emergency? Rule of Law and State of Emergency in European Public Health Administration

Abstract

When emergencies strike in the EU – a forest fire, a pandemic outbreak or a terrorist attack – these events are initially addressed by the executive branch. More particularly, they are addressed within the administrative branches where the authority, expertise and specialisation is organized for the particular urgent matters involved. In this paper, we ask what the impact is of the EU’s administrations role in responding to these events in terms of (changes to) the rule of law. A response to an emergency in some cases creates exceptions to upholding the rule of law guarantees that bind the authorities to procedural rules and fundamental rights. These changes can become more permanent and hence change the constitutional order of the EU. We ask if the EU administration breaks or bends the constitutionally derived administrative rules in case of an emergency and what are the constitutional implications of this practice? We conclude that emergencies can both bend and break the EU rule of law requirements for the EU administration, which poses significant questions of legitimacy, particularly so in cases of major health threats.

Keywords: public health emergencies, EU administrative law, urgent administrative procedures, rule of law, health law

JEL Classification: K4, K23, K32, K33