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

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