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

To combat COVID-19, unlike its Member States, the Union may act“only within thelimits of the competences conferred upon it by the Member States in the Treaties to attainthe objectives set out therein”.4As legal scholars, we understand why one may think thatthe Union has no power to act in ways that public health experts and others, such aseconomists and behavioural psychologists, suggest would be helpful. The Union’spowers in the health domain are traditionallyunderstood to be severely constrained:health law and policy are seen as matters for Member States.We propose an alternative to this standard legal analysis. The Union has more possiblelegal powers to create health law and policy in response to the COVID-19 outbreak than istraditionally understood, particularly if the different iterations of the protection andpromotion of public and human health throughout the Treaty on the Functioning of theEuropean Union (TFEU) are readin relation toone another. This alternativeinterpretation of the Union’s competence norms, the“legal bases”on which the Unioninstitutions act to adopt either binding legal rules or persuasive measures, suggests thatthere are legal options that permit the Union a wider range of actions than it has takento date, and that support–and go further than–the approaches that the EuropeanCommission (Commission) and European Centre for Disease Prevention and Controlhave suggested in various policy documents, guidance and communications in Marchand April 2020.5In short, we are arguing thatlegalimpediments to Union action areless restrictive than is commonly understood.