More Competences than you Knew? The Web of Health Competences for Union Action in Response to the COVID-19 Outbreak

published online in European Journal of Risk Regulation, April 2020

Amsterdam Law School Research Paper No. 2020-13

Amsterdam Centre for European Law and Governance Research Paper No. 2020-02

13 Pages Posted: 22 Apr 2020

See all articles by Kai P. Purnhagen

Kai P. Purnhagen

University of Bayreuth; Erasmus University of Rotterdam - Rotterdam Institute of Law and Economics

Mark Leslie Flear

Queen's University Belfast

Tamara Hervey

University of Sheffield

Alexia Herwig

University of Antwerp

A. de Ruijter

Amsterdam Centre for European Law and Governance; Amsterdam Centre for European Studies

Date Written: April 21, 2020

Abstract

To combat COVID-19, unlike its Member States, the Union may act “only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein”. As legal scholars, we understand why one may think that the Union has no power to act in ways that public health experts, and others, such as economists and behavioural psychologists, suggest would be helpful. The Union’s powers in the health domain are traditionally understood to be severely constrained: health law and policy is seen as a matter for Member States.

We propose an alternative to this standard legal analysis. The Union has more possible legal powers to create health law and policy in response to the COVID-19 outbreak than traditionally understood, particularly if the different iterations of the protection and promotion of public and human health throughout the Treaty on the Functioning of the EU (TFEU) are read in relation to one another. This alternative interpretation of the Union’s competence norms, the “legal bases” on which the Union institutions act, either to adopt binding legal rules, or persuasive measures, suggests that there are legal options that permit the Union a wider range of actions than it has taken to date, and which support, and go further than, the approaches that the European Commission (Commission) and European Centre for Disease Control have suggested in various policy documents, guidance and communications in March and April 2020. In short, we are arguing that legal impediments to Union action are less restrictive than commonly understood.

Keywords: EU health law, EU competences, COVID19, EU law, health law

JEL Classification: K2, K4, K33

Suggested Citation

Purnhagen, Kai Peter and Flear, Mark Leslie and Hervey, Tamara and Herwig, Alexia and de Ruijter, Anniek, More Competences than you Knew? The Web of Health Competences for Union Action in Response to the COVID-19 Outbreak (April 21, 2020). published online in European Journal of Risk Regulation, April 2020, Amsterdam Law School Research Paper No. 2020-13, Amsterdam Centre for European Law and Governance Research Paper No. 2020-02, Available at SSRN: https://ssrn.com/abstract=3581587

Kai Peter Purnhagen (Contact Author)

University of Bayreuth ( email )

Universitatsstr 30
Bayreuth, D-95447
Germany

Erasmus University of Rotterdam - Rotterdam Institute of Law and Economics ( email )

Burgemeester Oudlaan 50
PO box 1738
Rotterdam, 3000 DR
Netherlands

Mark Leslie Flear

Queen's University Belfast ( email )

25 University Square
Belfast, BT7 1NN
Ireland

HOME PAGE: http://qub.ac.uk/schools/SchoolofLaw/Staff/DrMarkFlear/

Tamara Hervey

University of Sheffield ( email )

17 Mappin Street
Sheffield, Sheffield S1 4DT
United Kingdom

Alexia Herwig

University of Antwerp ( email )

Prinsstraat 13
Antwerp, Antwerp 2000
Belgium

Anniek De Ruijter

Amsterdam Centre for European Law and Governance ( email )

Nieuwe Achtergracht 166
REC A
Amsterdam, NH 1018WV
Netherlands
0205253445 (Phone)

HOME PAGE: http://www.uva.nl/profiel/r/u/a.deruijter/a.de-ruijter.html

Amsterdam Centre for European Studies ( email )

P.O. Box 15718
Amsterdam, 1001 NE
Netherlands

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
45
Abstract Views
320
PlumX Metrics