How Covid-19 reveals the tensions between the EU’s Single Market and the protection of public health

By Sybe de Vries

Erst kommt das Fressen, dann kommt die Moral (Bertold Brecht, 1928)

During these almost surreal weeks questions were frequently raised in the media and in politics why the EU Member States (and globally) have adopted different measures and strategies to contain the spread of the Corona virus. Especially within the context of the EU one may have expected a common approach to fight Covid-19. On the contrary, some even argued that Corona rather reveals the relatively poor status of European cooperation.

The problem in Europe is that the field of health is in principle a matter for the Member States. In most cases the EU could only adopt supportive action.  Whereas paragraph 1 of Article 168 TFEU reiterates that a high level of health protection shall be ensured in the definition and implementation of all Union policies and activities, paragraphs 5 and 7 stipulate that harmonisation of national laws to protect and improve human health is excluded, and that management, organisation and delivery of medical care and health services are a matter and responsibility for the Member States. In other words, according to Article 6 TFEU, the protection and improvement of human health belongs to the EU’s supplementary competences.

Those, who thus point the finger at Brussels must realise that the Member States themselves – their own governments – did not want the EU to have more competences in the field of health to diffuse this crisis in a substantial, coordinated and concrete manner. And, that this may well be problematic becomes most visible in Europe’s Single Market; a project that even Eurosceptic politicians seem to cherish. Because in a European internal market for goods, persons, services and capital a free movement of protective equipment and medicines should be guaranteed. 

According to one of the classical judgments of the European Court of Justice, De Peijper the interest of public health ranks first amongst the interests mentioned in Article 36 TFEU. And Article 36 TFEU provides for an exception for national measures restricting the free movement of goods, which are prohibited on the basis of Articles 34 or 35 TFEU. Shielding national markets with a view to protect the health of its own population is only possible under strict conditions, although in times of crisis the discretion granted to Member States to protect health is naturally large. 

But the earlier intentions by Germany and France to limit the exportation of protective clothes, mouth caps and gloves, or to requisition these goods may jeopardise the functioning of the internal market and endanger the health of all Europeans. The European Commission luckily can take action, which it does, e.g. by adopting a firm stance on this, proposing measures, engaging in a dialogue with Member States and businesses (industry) and by urging mutual solidarity. Furthermore, more leeway can be given to companies and Member States to cooperate and give financial support within the framework of competition law and State aid law.

The principle of sincere cooperation, as enshrined in Article 4(3) TEU and which entails solidarity, to which the Commission refers, constitutes, together with the principle of unity, the cornerstone of European integration; or the ‘pillar of our Union’, according to the letter sent by the President of the European Council, Charles Michel, to the Italian president Mattarella on 20 march. 

But it has once again proven to be very fragile. I also think about other policies, like EU asylum policy where the ‘implementation’ of the solidarity principle, e.g. through an EU system of relocation of asylum seekers throughout the EU, has been particularly difficult if not impossible. Perhaps the setting up of a EU-wide crisis centre, as proposed by Michel, may be helpful in assisting unity of command and providing for solidary in Europe needed to combat the Corona crisis.

Where the new European Commission and the EU legislator have – rightly so – set in motion strong policies in the fields of climate change and digitalization, they seem to be overtaken by a new crisis: Covid-19. For that matter climate change, environmental depravation and digitalization are also relevant here. With regard to the latter, for instance, the use of data, digital technology and platforms may assist in combatting the spread of the virus or in adopting more targeted measures. 3D printing or digital platforms linking production capacity and needs have been proposed by the European industry and were discussed in the informal Competitiveness Council meeting on Friday 20 March.

At the same time, digitalization is a catalyst for the spread of disinformation or ‘fake news’ on the Corona virus through Facebook and other platforms. Here EU legislation is either in place or perhaps possible. In a different way, the Corona virus may, now many of us work from home using the Internet infrastructure, seriously disrupt the digital (market) eco-system.The outbreak of Covid-19 shows that the protection of public health may require far-reaching measures, which limit people’s freedoms and fundamental rights. The EU Member States have a moral duty to give the EU the instruments, which are needed to protect the health of all Europeans and to prevent the adoption of unnecessary and undermining measures that endanger the project of the EU Single Market and the health of its citizens at the same time. The EU’s Single Market may well appear the perfect avenue for the EU and its Member States to tackle both the health crisis and the economic disruption that Europe is facing right now. At the same time it may prevent the Corona virus from further steering nationalism and populism, whereby the call for the protection of the own population first is increasingly louder.