By SCOTT L. GREER, ELEANOR BROOKS, ANNIEK DE RUIJTER
Long ago, in March and April, the European Union didn’t look very good. Faced with the Covid-19 pandemic, member states acted on their own, with little coordination and still less European solidarity.
Few citizens or governments looked to the EU. European institutions were largely sidelined, with little to offer thanks to their constrained competencies and tiny budgets. Not even the civil protection system was activated.
By July, though, the EU has taken what might be a permanent and dramatic turn for the better, showing its value to citizens and, more importantly, the governments of the tightly integrated, 446-million person Union.
EU health policy has three faces: explicit health policy, internal market policy, and fiscal governance. Covid-19 looks like it is transforming all three for the better.
In terms of the first face of EU health policy, explicit programmes for health, there has been little to report for decades.
What looked to EU public health advocates like bad times under the Barroso Commission became worse times under Juncker, who gave his health commissioner a mandate of almost insulting narrowness and went on to float a paper in 2017 that suggested ceasing positive work on health entirely.
By January 2020, health advocates in Europe were mostly happy that they still had a directorate-general for health at all, and that its commissioner had a better mandate.
But with the pandemic, things rapidly changed.
The health programme, which had always been small and was being dissolved entirely into other budgets, is to be increased about 25 times. Its goals will expand too.
They will include stronger public health surveillance and capacity in the member states, and also “health systems-strengthening.”
On one hand, it is logical to invest in health-systems strengthening since if any health system in the EU fails to manage Covid-19 it will eventually become a problem for the whole EU.
On the other hand, though, health-systems strengthening means money to improve the operation of health systems, breaking the taboo on direct EU transfers to improve poorer countries’ welfare states.
That taboo exists for the simple reason that the disparities between EU member states are enormous, and governments of richer member states see little political benefit in opening the door to transfers to poorer member states to fund better social policies.
Health systems strengthening means just that.
The second face of the European Union in health is its internal market. Most of the EU health policy that has really mattered is justified by internal market rules, whether that means food safety, health professional regulation, cross-border health care services, or the regulation of pharmaceuticals and medical devices.
That isn’t a surprise, given the constitutional importance to the EU of the freedom of movement of goods, services, capital and people.
In spring, member states often violated these freedoms, notably with export bans on key equipment, but the commission quickly snapped back.
Not only did it threaten infringements, it also enunciated a new interpretation of Articles 35-36 of the EU Treaty, which establish free trade and then suggest a public health exception.
The public health exception had long been a claim member states could use to avoid internal market law, and courts tailored it narrowly (this is the foundational Cassis de Dijon decision, taught in every class on EU law, was about the scope of the public health exception).
‘Public Health’ now an official goal
The commission, turned it around, arguing that public health was European: member states could no longer use public health as a justification for their own egotism.
Rather, public health would be a European regulatory goal. If this sticks, it turns public health from a narrow exception into a real goal.
EU health law scholars would not have dared to dream of this in January.
The third face of the EU in health is fiscal governance- mechanisms like the European Semester.
February 2020 seems like a long time ago, and 2015 unimaginably distant, but in that year the semester’s austere ambitions were so far-reaching as to, in theory, threaten France with fines for undermining the euro – because it restricted admissions to health professional education.
That is surely not what the member state governments meant when they put it in the Lisbon Treaty that “Union action shall respect the responsibilities of the member states for the definition of their health policy and for the organisation and delivery of health services and medical care,” but it is exactly what partisans of austerity wanted.
The 2010 debt crisis let them seize the opportunity. Over time the semester has lost its blunt force and direction, filling up with social goals and sophisticated policy ideas that do not promote austerity.
In April, the commission sensibly invoked the “general escape clause” that lets member states disregard the fiscal rules.
No member state had the intention, or ability, to abide by them anyway.
By June, not only was there agreement on much more EU expenditure on health, there was also another taboo broken: EU debt to help member states in crisis with no conditionality.
Every other federation has weaker regulation and more internal equalisation than the EU. But many established federations started out just as fiscally-weak, and it was through decisions like this that they began to pool their resources for collective benefit.
The existence of any EU debt issued for the purpose of improving Europeans’ lives, rather than keeping banks afloat, and with no punitive conditionality is a new thing and if it is a precedent Europe will be different in the future.
Neither political scientists nor public health researchers nor lawyers are known for their optimism.
The Covid-19 pandemic has produced debacles, tragedies, and embarrassment and the result might be a different future for the EU and its citizens