By Nikos Korogiannakis and Antigoni Pafiti
On 11 March 2020 US President Donald Trump stunned EU leaders by announcing a 30-day ban of air travel from 26 Schengen countries because he said, “the EU failed to take the same precautions as the US and restrict travel from China”.
No EU affairs connoisseur was surprised by the fact that President Trump has difficulty in recognising in detail the institutional role of the EU in the current crisis. Since many EU citizens also wonder whether the EU has taken all the necessary measures to protect its citizens from Covid-19, it is useful to bear in mind a few principles when it comes to what the EU can do and what cannot.
The Member States have agreed since the 1950s through a series of very precise written agreements called the ‘’Treaties’’ the exact boundaries of the competence of the EU. The Union can do nothing that is not already provided on it and is not within its competence.
According to article 168 of the Treaty for the Functioning of the EU (TFEU) the competence of the EU on Public Health matters is limited related to the fight against the major health scourges. Specifically, EU is standing by “promoting research into their causes, their transmission and their prevention, as well as health information and education, and monitoring, early warning of, and combating serious cross-border threats to health.’’, as well as encouraging cooperation between the Member States to improve the complementarity of their health services in cross-border areas and take the initiative at the establishment of guidelines and indicators between them.
The EU may also adopt ‘’incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges, measures concerning monitoring, early warning of and combating serious cross-border threats to health’’. What is more important, is that the budget allocated for such actions is a slim €100 million for all the Member States.
In the area of border control the competence of the EU is even slimmer. Article 77 of the TFEU provides for “the gradual introduction of an integrated management system for external borders”. Such measures have been taken through the Schengen Border Code (Regulation (EU) 2016/399) on the rules governing the movement of persons across borders explicitly provides for risk of public health as a ground to refuse entry at the external Schengen border (Title II) by the Member States, and for the possibility to temporarily reintroduce controls at internal borders on public health grounds (Title III ), but does not provide for the right of the EU to introduce such measures either in the external or the internal borders of the Union.
The EU has therefore no competence to take any concrete measure to restrict travel from China or to take any wide sanitary measure for the population of the EU. This is exclusively the “job” of the Member States governments. This is why each government announces its own measures which vary significantly from one state to another. If the EU announced measures in these fields, they could not be imposed on the Member States and would be not only illegal but practically useless and ineffective.
What the EU, according to the TFEU, can do in this crisis is to facilitate the flux of information among Member States, exercise a role of coordination between them, finance research, and provide recommendations on a common course of action.
What are the main actions and measures have taken?
Firstly, on the public health level, based on the very limited competence and budget, the EU Commission has launched a board of leading epidemiologists and virologists to anticipate events and develop guidelines and strategies on the evidence based for EU. This panel will be chaired by the Commission President, Ursula von der Leyen, and co-chaired by Stella Kyriakides, the Cypriot Commissioner for Health and Food Safety.
Aiming as a first priority to guaranteeing the health and safety of all citizens, protecting people from the spread of the virus while maintaining the flow of goods, Commission provides guidelines to national governments on border measures.
Secondly, on the purely economic level where the EU have important competences, the European Commission set up a “corona response team” and tabled a number of legal proposals on 13 March, which aim at mitigating the economic impact of the crisis. The main fiscal response to the Covid-19 will come from Member States’ national budgets.
EU State aid rules enable Member States to take swift and effective action to support citizens and companies. According to article 107(2)(b) of the TFEU, Member States, are enabled to compensate companies for the damage directly caused by exceptional occurrences, including measures in sectors such as aviation and tourism. Likewise, according to article 107(3)(b) of the TFEU the Commission approve additional national supporting measures to remedy a serious disturbance in the economy of Member States. Currently the article has been activated day after day for several countries.
Additionally, the European Commission has activated the general escape clause in the Stability and Growth Pact (SGP) allowing Member States to spend more without worrying if the annual deficit is exceeded. It is a notable point that the Commission considers that Covid-19 is an “unusual event outside the control of governments” which gives the chance to accommodate exceptional spending to control the outbreak. As an example, Greece has been specifically authorised by the Eurogroup on its meeting on March 16, 2020 to disregard the target of an annual primary surplus of 3.5 per cent in order to deal with the consequences of Covid-19.
Correspondingly, to the commitments made by Member States, the Commission proposes to direct €37 billion under the new initiative of ‘’Coronavirus Response Investment’’. Cohesion Policy funding and the EU Solidarity Fund will play a central role in this initiative. In the upcoming weeks, €1 billion will be redirected from the EU budget as a guarantee to the European Investment Fund to support banks to provide liquidity to small and medium sized enterprises and also credit holidays to the existing good debtors that are negatively affected. In fact, the European Central Bank has already announced the release of a spectacular €750 billion in a temporary bond-buying program to alleviate the impact of the pandemic.
In conclusion, the EU seems to be discreet in tackling the current crisis within the very restricted limits set by the treaties. Unlike what many think, the EU has no general competence on any matter arising in everyday life. In a time of crisis many regret the limited tools for a pan-European reaction to threats, such as Covid-19. As often, in times of crisis, an important lesson has been learned the hard way. Since a new round of negotiations for the amendment of the EU Treaties will soon open with the conference in relation to the future of the EU, both citizens and Member States have a unique opportunity to push for a significant evolution in this field, so that the EU and States can protect their citizens in the best way possible.
Nikos Korogiannakis and Antigoni Pafiti are lawyers at the Elias Neocleous & Co LLC, Brussels office