COVID-19, the European Health Union and the CJEU: Lessons from the Case Law on the Banking Union

Oliver Bartlett

doi:10.1017/err.2020.78

Abstract

This contribution will draw on the literature that has accumulated on how the Court of Justice of the European Union (CJEU) has responded to the European Banking Union, which was established in similar crisis circumstances that now face the European Union (EU) in the age of COVID-19, to illustrate the legal issues on which the CJEU’s input will be particularly important in the shaping of any future European Health Union. This contribution will highlight three legal issues in particular: the interpretation of EU Treaty provisions in the health field; the scope of EU competence; and the powers of EU institutions and agencies. This contribution will argue that the CJEU case law to date on health issues is encouraging with respect to competence and agencies, but more cautious with respect to the Treaty’s health provisions.

Highlights

The Court of Justice of the European Union (CJEU) has given a number of pivotal judgments in cases that have dealt with the intersection of health policy and EU law, and in so doing has played a key role in the emergence of EU health law as a distinct field
COVID-19, the European Health Union and the CJEU: Lessons from the Case Law on the Banking Union. This contribution will draw on the literature that has accumulated on how the Court of Justice of the European Union (CJEU) has responded to the European Banking Union, which was established in similar crisis circumstances that face the European Union (EU) in the age of COVID-19, to illustrate the legal issues on which the CJEU’s input will be important in the shaping of any future European Health Union
If we focus on how the CJEU has interpreted EU Treaty provisions in the health field – Article 168 TFEU, which imposes an obligation upon the EU to consider how its policies in all fields could promote health – there are reasons to be more cautious about whether the CJEU would be bold in its interpretations in support of a future Health Union

Summary

INTRODUCTION

The Court of Justice of the European Union (CJEU) has given a number of pivotal judgments in cases that have dealt with the intersection of health policy and EU law, and in so doing has played a key role in the emergence of EU health law as a distinct field. It is clear that if a Health Union is created, the CJEU would play an important role in its development and in whether it is eventually successful in improving Europe’s preparedness and resilience against future infectious disease crises. The CJEU’s decisions enabled the Member States to create stability in the financial sector and to safeguard against similar crises developing in the future This contribution will draw on the literature that has accumulated on how the CJEU has responded to the Banking Union, which was established in similar crisis circumstances that face the EU in the age of COVID-19, to illustrate the legal issues on which the CJEU’s input will be important in the shaping of any future Health Union. This contribution will examine each of these in turn and will argue that the CJEU case law to date on health issues is encouraging with respect to competence and agencies, but more cautious with respect to the Treaty’s health provisions

LEARNING FROM THE CJEU’S RESPONSE TO THE BANKING UNION

TREATY PROVISIONS IN THE HEALTH FIELD

COMPETENCE

INSTITUTIONAL AND AGENCY POWERS

CONCLUSION