A Digital Health Infrastructure for Cross Border Governance of Communicable Diseases: A Case Study on the Covid-19 Pandemic

Abstract

The functioning of the Digital Single Market is fundamental for the economic development of the European Union. The “EU eGovernment Action Plan 2016–2020” outlines important steps to implement the Digital Single Market. According to the Action Plan administrations should be “digital”, “cross-border” and “interoperable” by default. A case study which illustrates the importance of the three principles “digital”, “interoperable” and “cross-border” by default is fighting the Covid-19 pandemic in the European Union. Since it is also one of the greatest challenges the European Union faced recently, it constitutes a suitable topic for this study.

Regarding the first principle “digital” by default, we have learned that digital technology is necessary to combat the Covid-19 pandemic. As Thierry Breton, Commissioner for the Internal Market, stated: “Digital technologies, mobile applications and mobility data have enormous potential to help understand how the virus spreads and to respond effectively.” Indeed, digital technologies are essential for the gathering, exchange and evaluation of information, which is the basis for the governance of communicable diseases.

Concerning the second principle “cross-border” by default, only a cross-border fight against a pandemic is efficient. The definition of a pandemic is “[a]n epidemic that occurs in a very large area, crosses international borders and usually affects a large number of people”. It already shows that Covid-19 is a cross-border problem, the solution to which is a common European interest. Nevertheless, it was mostly the Member States and not the European Union that took the decisive measures to combat the pandemic. This did not only reduce the effectiveness of the measures, but also posed a problem for the European internal market. When Member States introduced uncoordinated border controls at the beginning of the pandemic, which were accompanied by entry restrictions and quarantine requirements, this led to economic losses of approximately 774 billion Euros and 14.1 million jobs for the tourism industry in 2020 according to the World Travel & Tourism Council. Moreover, border controls with entry restrictions legally restrict the general right to freedom of movement (Art. 21 TFEU, Art. 45 CFR), the free movement of goods (Art. 28–37 TFEU), the freedom of workers (Art. 45–48 TFEU), the right of establishment (Art. 49–55 TFEU) and the freedom to provide services (Art. 56–62 TFEU). This is especially problematic as border controls do not help to prevent infections in every pandemic situation. More precisely, the timing of border controls determines their effectiveness.

Border controls can delay the progression of the disease by a few weeks at the beginning of a pandemic, when there are still few cases in the Member State. However, their effectiveness is limited if the rate of infections across the border does not differ markedly from the situation inside the Member State.

Lastly, an efficient fight against a pandemic needs information systems, which are “interoperable” by default. Medical, especially epidemiological, information is very important as a basis for decisions about communicable diseases. For the fight against Covid-19 information on infection rates is particularly relevant for assessing the spread of the disease. Furthermore – as vaccination prevents severe courses of Covid-19 – information on the effectiveness and safety of vaccines is fundamental. Communicable disease control is characterised by a large number of different actors – eg patients, doctors, administrations or insurance companies – who gather information on infection rates and vaccines. Hence, for the exchange of information via various information systems the interoperability of the systems is essential. In addition, new techniques such as artificial intelligence (AI) that validate data, rely on growing volumes of digital medical data. Thus, they depend on interoperable information systems as well.

Having understood the importance of the three principles in the fight against Covid-19, this Chapter asks how a digital, cross-border and interoperable fight against communicable diseases might look like. Section B. describes the structure of the legal framework in the public health sector. This also includes the distribution of competences between the European Union and the Member States in the area of public health and how it may impede interoperability. Section C. analyses which functions the information systems have and how they protect public health. Section D. then examines how the information systems promote the four levels of interoperability (legal, organisational, semantic, and technical). Finally, Section E. draws a conclusion and addresses the remaining challenges.

Keywords: INDIGO, Digital Governance, Law and Technology, EU Law

JEL Classification: O10, O19, O38, K39, I18, I30, G38