Solidarity during the Covid-19 crisis within the European Union – a legal principle or just a pivotal political aspiration?

Anne Joppe

The principle of solidarity is called upon mostly in times of crisis, as happened, for example, during the Eurozone crisis and the refugee crisis. During the current crisis as a consequence of the Covid-19 outbreak, the EU calls again for solidarity among the Member States to combat the pandemic. Global solidarity is mentioned also as a sort of founding value of the EU vaccines strategy.

Nevertheless, it is unclear what the principle actually entails. The situation after the Covid-19 outbreak allows to investigate whether there is indeed a legal value or notion of European solidarity that can be enforced, whilst we also see national reflexes of protecting the own citizens and market in times of crisis. The latter seems to prevail in the dispute between the EU and the UK about the AstraZeneca vaccine, for instance. Where the EU calls on a fair and ‘solidary’ distribution of the vaccines throughout Europe, the UK seems to prioritise its own programme and wants the company to favour the UK, even though that might threaten the relationship with the EU.

Solidarity – Legal framework

The position of the principle of solidarity in primary EU law, inter alia in Article 2 TEU and preambles of the Treaty and the Charter of Fundamental Rights, implies that it is a foundational value of the EU. Some authors and Advocate General Kokott agree with the idea that it is a fundamental principle, but opinions in literature differ about its value. The CJEU has not recognised its fundamental value explicitly in its case law. There is agreement regarding the existence and importance of solidarity, but when it comes to its actual application and definition, it is ambiguous. Furthermore, there is no concrete definition of solidarity given in the Treaties or in the case law. There seems to be agreement that solidarity comes down to the idea of Member States setting aside their national interests, to let the common, European goals prevail. The principle of mutuality or reciprocity is seen as a basis for solidarity.

The principle of loyalty, enshrined in Article 4(3) TEU, and solidarity are often mentioned jointly. Following the landmark judgment J.J. Zwartveld, loyalty is based on an idea of mutuality as well. In Commission v France the CJEU ruled that solidarity is ‘in accordance with’ loyalty. There are differing opinions in literature, however, on the link between the two. Ross, for example, sees the principle of loyalty as a clear expression of solidarity, whereas Klamert sees both as separate principles. The most accurate view, in my opinion, is presented by Casolari, who suggests that solidarity in itself is not a legally enforceable principle, but rather is conceived as a political aspiration. The principle of loyalty, which is based on the same idea, can provide the instrumental toolbox to enforce the objectives of solidarity. It can thus be argued that solidarity may be enforced through the principle of sincere cooperation.

Solidarity during Covid-19

The EU was criticised for its lack of action at the beginning of the pandemic. The Member States, meanwhile, took different measures to combat the virus unilaterally. An explanation for the initial slow reaction from the EU lays with the limited competence it has in the field of public health, pursuant to Articles 6 and 168 TFEU. During the Covid-19 crisis, a tension arose between national interests and principles underlying the EU internal market. Solidarity was said to be not sufficiently present, since a rebound to selfishness and prevailing national interest became immediately visible after the outbreak. This appeared, for example, from the fact that some Member States unilaterally decided to ‘close’ their borders. A change in the behaviour of the Union became slightly visible, however, and solidarity became more and more apparent, when the Union explicitly started to call on it.

There are several options for the EU to give effect to solidarity during the crisis. The Union can still issue soft-law instruments, which have been considered a useful tool to stimulate solidarity. Secondly, Article 222 TFEU, the so-called ‘solidarity clause’, stipulates that Member States have to cooperate “in a spirit of solidarity” in case of a disaster. Thirdly, Decision 1082/2013/EU regulates joint public procurement of medicinal countermeasures in case of outbreaks on large scale or health emergencies. This is a useful tool in light of the distribution of medicines and vaccines. Fourthly, through the EU Civil Protection Mechanism, which is based on cooperation, Member States can request assistance from other states in case of disasters.

Another option would be to allow for a more ‘solidarity-friendly’ approach of Article 36 TFEU, which provides justification grounds for restrictions of the free movement of goods, such as public health. One could argue that it should be an option, for example, for the CJEU to take into account solidarity like it does with proportionality, when assessing national measures, for example in light of distribution of vaccines and medicines. The Belgian Constitutional Court recently declared legislation, that hindered Belgian suppliers to export medicines, incompatible with Article 36 TFEU (Tobufar and others). It should be possible for these distributors to export medicines to geographical areas that need them, and not only within one Member State. This approach could be extended and improved.

EU response to the pandemic – solidarity is pivotal

The Commission issued quite a number of soft-law instruments in the field of the internal market. In light of the free movement of goods, for example, it announced the Guidelines on border management, with the aim of ensuring coordination at Union level with regard to border checks on persons and the availability of goods throughout the EU. The Commission emphasised the importance of solidarity, stating that it should be governing the approach to tackle the pandemic.

With regard to the free movement of goods, the Commission rapidly issued an implementing act to protect the availability of personal protective equipment, such as face masks. Later, guidelines regarding the rational supply of vital medicines were introduced, calling again on solidarity. Furthermore, as part of the Civil Protection Mechanism, for the first time ever, a European stockpile of emergency medical equipment was created, called ‘rescEU’. This was seen as solidarity put into action and resulted in, for example, delivering face masks to Spain, Italy and Croatia in May and ventilators to the Czech Republic in October.

The EU announced thus, despite its limited competence in the field of public health, a significant number of soft-law instruments. Solidarity is presented as a pivotal idea underlying these measures and necessary to solve the crisis.

Solidarity as a working principle?

All the actions taken by the Union seem to rely on the idea that a coordinated and common approach is needed, by which the interests of the internal market and public health of citizens are balanced. Solidarity is, as said, often mentioned by the Commission. The EU even has a website about solidarity in times of Covid-19, which shows what “European solidarity in action” looks like. Here, solidarity is projected as Member States supporting each other, for example, with treating patients and protecting the health of workers and citizens.

The preliminary conclusion that solidarity is rather a political aspiration, expressed by, inter alia, the principle of loyal cooperation, seems to remain true during the pandemic. Legal bases of solidarity, such as Article 2 TEU or Article 222 TFEU, are not referred to explicitly. Even though the Union presents solidarity as having a central role in this crisis, it is rather seen as an ideal of cooperation and coordination within the EU and mutual support between the Member States in practical issues. Concluding, solidarity is not an enforceable legal principle that forms a basis for, for instance, judicial review. For now, it seems to be just a pivotal political aspiration.