The Principle of Solidarity in EU Asylum Law and EU Public Health Law
Master’s Thesis European Union Law Egle Boniglia
11117028
egleboniglia@gmail.com
Thesis Supervisor: Annette Schrauwen Date: 08/01/2021
Abstract
This thesis studies the principle of solidarity in two fields of EU law: Asylum Law and Public Health Law. The principle of solidarity is the bridge concept that links these two fields. The principle of solidarity is enshrined in primary and secondary EU law and is based on the equal sharing of
prosperity and burdens by all of the Member States of the Union. While it is a problematic principle as it is hardly recognised as a general principle of EU law, it has shaped the development of EU Asylum Law. More particularly, it has proved effective as an instrument to face the emergency of the Refugee Crisis. Indeed, in order to fight this 2015 crisis, the Council adopted the Relocation Decision based on the principle of solidarity and fair sharing of responsibility. In light of the Coronavirus outbreak, a new emergency, the principle of solidarity is highlighted in this research as the most adequate means to respond to the current crisis. In this context, this study recommends the European Commission to propose a new Decision on the purchase and distribution of COVID-19 vaccines based on the solidarity principle.
Keywords
Principle of solidarity - EU Asylum Law - EU Public Health Law - Refugee Crisis - General
Table of Contents
List of Abbreviations 4
Chapter 1: Introduction 5
Chapter 2: Methodology and structure 6
Chapter 3: The general context of the principle of solidarity 9
3.1. The Principle of Solidarity 9
3.2. A General Principle of EU Law? 11
3.3. An Emergency-centred Principle 15
Chapter 4: The principle of solidarity in emergency-crises: Refugee Crisis 22
4.1. EU Asylum Law and the Principle of Solidarity 16
4.2. A turning point: the Slovakia and Hungary v Council case 18
4.2.1. The facts 18
4.2.2. The substance 19
4.3. Obligations deriving from the principle of solidarity 20
Chapter 5: The principle of solidarity in emergency-crises: Coronavirus Crisis 22
5.1. A short overview on EU Public Health Law 22
5.2. EU public health and the principle of solidarity 24
5.2.1. Obligations emerging from the principle of solidarity 24 5.3. The principle of solidarity and the outbreak of COVID-19 25 Chapter 6: Solidarity in the deployment of vaccines within the Union 30
6.1. A dive into the past for a better future: the Swine Flu and the lack of solidarity in the
purchase and procurement of vaccines 28
6.2. The principle of solidarity in the purchase and distribution of COVID-19 vaccines 30 6.3. Legitimacy of the new Decision on the purchase and distribution of COVID-19 vaccines 34
6.3.1. Legitimacy 32
6.3.2. Legal basis 33
6.3.3. Subsidiarity (for non-exclusive competences) 33
6.3.4. Principle of proportionality 34 6.3.5. State liability 34 6.3.6. Political follow-up 35 Conclusion 36 Bibliography 1 38 Primary Law 38 Secondary Law 39
Bibliography 2 40
Primary Sources 40
Secondary Sources 41
List of Abbreviations
AFSJ - Area of Freedom Security and Justice APA - Advanced Purchase Agreement Art. - Article
CEAS - Common European Asylum System
CFR - Charter of Fundamental Rights of the European Union CJEU - Court of Justice of the European Union
CFSP - Common Foreign and Security Policy EASO - European Asylum Support Office ECDC - European Center for Disease Control ECJ - Court of Justice of the European Union EMA - European Medicines Agency
ESI - Emergency Support Instrument
EWRS - Early-Warning and Response System HSC - Health Security Committee
JPA - Joint Purchase Agreement MS - Member State
TEU - Treaty on the European Union
Chapter 1: Introduction
In 2009, a large part of the global population was infected by a new, strange, communicable disease: the Swine Flu.1 The most effective way to stop the spread of the virus was the development and distribution of vaccines. On that occasion, in the EU, a serious issue arose. While some Member States were able to obtain a great amount of vaccines, others could not meet the needs of their population. Many Member States, driven by their own national interests, had contracted unilateral pre-purchase agreements with pharmaceutical companies. Consequently, other Member States were forced to buy vaccines at much higher prices, leading to an unequal distribution of these medicines throughout the Union.2 This phenomenon clearly showed a strong lack of solidarity among Member States and the Union.
Solidarity: a principle that was underdeveloped at the time. However, this principle has been continuously evolving since then. In 2015, another emergency heavily affected the European
territory: the Refugee Crisis. During these troubled times, the principle of solidarity acquired
exceptional weight in the area of EU Asylum Law. Here, the principle of solidarity was transformed from a mere value to a legally binding principle.3 Furthermore, it has since proved successful as a means to ensure cooperation between the Member States and the Union in emergency situations.4
Today, we are facing a new emergency-crisis similar to the Swine flu of 2009. Once again, the world and the EU are being challenged by a communicable disease that knows no borders: the Coronavirus.5 Not only has the past taught us that in moments of crisis Member States tend to protect their own interests, but also the recent actions of EU members have shown a similar trend. Indeed, some Member States promptly introduced national restrictions on the exportation of medical goods.6 This can be considered as a strong indication that the unequal distribution of vaccines among
Member States, which occurred during the Swine Flu crisis, will take place once again.
1 “Lessons From a Pandemic, a Decade Later” U.S. News & World Report (June 11, 2019).
2 Anniek de Ruijter, “EU Public Health: Countermeasures to Swine Flu” (Oxford University Press 2019) EU Health Law
& Policy 122.
3 Joined Cases C-643/15 and C-647/15, Slovakia and Hungary v Council [2017] ECLI:EU:C:2017:631. 4 Dirk Vanheule and others “The Implementation of Art. 80 TFEU” (European Parliament 2011) tech 5, 19.
5 The Visual and Data Journalism Team, “Covid-19 Pandemic: Tracking the Global Coronavirus Outbreak” BBC News
(November 6, 2020).
6 Commission Communication – Coordinated economic response to the COVID-19 Outbreak Brussels, 13.3.2020 COM
After having established the principle of solidarity as a general principle of EU law
characterized by its suitability in emergency circumstances, this research takes inspiration from the area of EU Asylum Law and intends to apply this principle to EU Public Health Law. Indeed, this study proposes to respond to the problem of purchase and distribution of COVID-19 vaccines among Member States by applying the principle of solidarity and fair sharing of responsibility to the current emergency. This research suggests learning from the past and to take inspiration from the European Commission’s call for a European Strategy in the development and distribution of vaccines
mentioning solidarity and unity among the Member States.7 By doing so, this study seeks to find a revolutionary solution to this contemporary problem. However, EU Public Health Law is an area of law that leaves Member States with a wide margin of appreciation.8 For this reason, it is necessary to analyse whether the principle of solidarity is applicable to this area of law and whether it can impose new obligations on the Union and the Member States that constitute it. Therefore, this study attempts to respond to the following question: “To what extent can the obligations deriving from the principle of solidarity in EU Asylum Law be applied to EU Public Health Law for the purchase and
distribution of vaccines in light of the COVID-19 outbreak?”
Chapter 2: Methodology and structure
This study seeks to answer the question posed at the end of the Introduction by conducting a Classical Legal research based on the collection of official EU documents such as European
Commission’s communications and Council’s recommendations, the EU Treaties and the case-law of the CJEU in addition to existing literature relevant to the topic. The main research question is divided into sub-questions that structure the body of this research and are dealt with in more detail in
Chapters 3 to 6. The sub-questions are: What is the principle of solidarity? Does the principle of solidarity impose obligations on the Member States and the Union in the field of EU Asylum Law? Can the principle of solidarity spill-over to the area of Public Health Law regarding the purchase and distribution of vaccines to face COVID-19?
7 Commission Communication– EU Strategy for COVID-19 vaccines, Brussels, 17.6.2020 COM(2020) 245 final. 8 Ulla Neergaard, “EU Health Care Law in a Constitutional Light’” Health Care and EU Law (TMC Asser Press 2011)
In order to answer the first sub-question, Chapter 3 is dedicated to the exploration of the general context of the principle of solidarity. An intense desk-review of existing literature on the principle of solidarity has been carried out in this part of the research. This Chapter is heavily based on the research by Iris Goldner Lang, expert of EU Immigration Law and the author of two articles that serve to describe the solidarity principle and its characteristics. Her findings are combined with the conclusions reached by Esin Küçük and Eglė Dagilytė, who are two main authors that contributed to the research concerning the establishment of the solidarity principle as a binding legal principle. In this context, an analysis of primary and secondary EU law and of the case-law of the CJEU is also included. The value of this Chapter is the identification of the principle of solidarity not only as a solid legal principle, but also as a general principle of EU law applicable to emergency situations. Indeed, this Chapter already hints at the possibility to apply this emergency-driven principle to the current Coronavirus Crisis, which is the main finding of the rest of the research.
The second sub-question is explored in Chapter 4, where the sources of the law on the
solidarity principle within the field of EU Asylum Law are analysed. This analysis seeks to assess the duties and powers deriving from such a principle for the Union and the Member States. The research method used in this Chapter consists in a description of the existing legal rules followed by an extensive annotation on the remarkable Joined Cases of Slovakia and Hungary v Council.9 This part of the research shows the successful application of the principle of solidarity through the Relocation Decision as a means to respond to the Refugee Crisis. In addition, it further explores the theme of the principle of solidarity as a binding principle with legal consequences, as mentioned in Chapter 3. Thus, the most important findings of Chapter 4 consist in showing the binding effects of the principle of solidarity and its fruitful application as a legal instrument in the face of emergencies.
The third sub-question is divided between Chapter 5 and Chapter 6. The former firstly aims at exploring the legal basis for actions within the area of EU Public Health Law and, secondly, at
investigating the normative value of the principle of solidarity within this field of law. Furthermore, it stresses the possibility of using the solidarity principle as an instrument for a uniform response to health emergencies such as COVID-19. Similarly to Chapter 3 and 4, Chapter 5 is also based on a descriptive approach of the relevant legal norms and the existing literature on EU Public Health Law. However, the CJEU case-law on health matters is very limited at this point in time. Similarly,
regarding the connection between EU Public Health Law and the solidarity principle, no extensive literature has been written on this topic. Nonetheless, Anniek de Ruitjer and other authors have broadly explored this area. Thus, this study strongly relies on their articles, which advocate a stronger role for the solidarity principle during the Coronavirus emergency.
While these authors remain silent on the method of application of the principle of solidarity, this research explores concrete and ad hoc measures as for the implementation of such a principle to the current crisis. Therefore, in Chapter 6 this study takes on a prescriptive approach. Based on the previous results, it recommends the legislative power of the Union to adopt specific measures, in the form of a binding Decision, that regulates the purchase and distribution of COVID-19 vaccines among Member States. Such Decision has been inspired by the existing Commission’s proposals for new Regulations.10 In contrast to these proposals, the suggested Decision, which is an original work of this research, is not of general application to all health emergencies. Instead, it is COVID-19 specific. Furthermore, it does not attempt to rule on general medical products, but it only governs rules on COVID-19 vaccines. Finally, it is entirely based on a solidarity mechanism.
This research attempts to answer the main research question by establishing the principle of solidarity as a general principle of EU law and as an emergency-based principle. Secondly, it shows how this principle has been applied to the Refugee Crisis, especially through the Relocation
Decision. Thirdly, considering the outbreak of COVID-19 an emergency situation, it applies the principle of solidarity to EU Public Health Law in the context of the current health crisis by the adoption of specific measures for the fair distribution of vaccines between Member States.
For the limited length and the purpose of this research, the principle of solidarity is only explored in the area of EU Asylum Law and EU Public Health Law, leaving out other areas of EU law. Concerning EU Asylum Law, this principle is analysed in the context of the Refugee Crisis, ignoring other aspects of EU Immigration Law. Regarding EU Public Health Law, the principle of solidarity is scrutinized in light of the vaccination against COVID-19.
10 See Proposal for a Regulation of the European Parliament and of the Council on serious cross-border threats to health
and repealing Decision No 1082/2013/EU Brussels, 11.11.2020, COM(2020) 727 final | Proposal for a Regulation of the European Parliament and of the Council on a reinforced role for the European Medicines Agency in crisis preparedness and management for medicinal products and medical devices Brussels, 11.11.2020 COM(2020) 725 final.
Chapter 3: The general context of the principle of solidarity
This chapter is dedicated to the description of the principle of solidarity. The first section explains what the principle of solidarity is, as well as the constituents and the obligations that should derive from it. The second section explores the highly discussed question of whether the principle of solidarity can be considered a general principle of EU law. The third section investigates the principle of solidarity in the context of emergencies. Essentially, this chapter seeks to ascertain whether the principle of solidarity is an appropriate instrument to face an emergency such as the Coronavirus Crisis.
3.1. The Principle of Solidarity
In order to understand whether the principle of solidarity can be used as an effective tool in the fight against the current outbreak of COVID-19, a general overview of both the meaning and the legal value of this principle are needed. The concept of solidarity is largely used in philosophical and political discourses, yet it remains still undefined in the law field.11 In general terms, scholars define solidarity as a shared consciousness and experience that binds individuals or communities. In
political terms, solidarity can be understood as the sharing of struggles and resources among citizens or bigger groups in an equal and just manner.12 The manner is considered just if those groups share burdens within the limits of their possibilities.13
In the context of European integration, three types of solidarity can be distinguished: national solidarity, Member States’ solidarity and transnational solidarity.14 However, no general consensus on the definition of these terms is currently found in the literature. Hence, this study borrows Andrea Sangiovanni’s definition of Member States’ solidarity as the relationship that binds Member States to each other15 and Carol C. Gould’s interpretation of transnational solidarity as the relationship
11 Pieter Van Cleynenbreugel, “Typologies of Solidarity in EU Law” (2018) Solidarity in EU Law 13. 12 Sally J. Scholz, Political Solidarity (Penn State Univ Press 2012) 3-4.
13 Ole F. Norheim and Yukiko Asada, “The ideal of equal health revisited” (2009) 8 International Journal for Equity in
Health 40.
14 Andrea Sangiovanni, “Solidarity in the European Union” (2013) 33 Oxford Journal of Legal Studies 217. 15ibid.
between EU Member States and the Union.16 In other words, this research investigates both these types of solidarity, which define the obligations that bind EU Member States to each other and to the Union itself.
In the context of EU law, the values of solidarity are translated into norms that place the foundations for sharing responsibilities equally and justly among the member states.17 Member State’ solidarity has played a crucial role in the project of European integration. The creation of the
European Economic Community aimed at unifying former enemies, both politically and
economically, by creating a Single Market. The development of European economic integration through the Single Market presumed that Member States acted in solidarity by sharing struggles and responsibilities. In other words, in order for Member States to properly operate in the Single Market, they have to respect EU law by giving up certain national rules and by accepting to recognise other Member States’ norms as equivalent to their own.18 These values are enclosed in two principles of EU law, namely the principle of sincere cooperation and the principle of mutual recognition. Thus, it can be said that the principle of solidarity is mainly constituted by these two principles.19 These principles are intertwined; however, they do not overlap.20
Membership to the European Union comes with advantages and responsibilities. In order to ensure that Member States adhere to their shared responsibilities, a set of principles were formulated and introduced in the Treaties of the EU. The principle of loyal or sincere cooperation laid down in Art. 4(3) TEU defines the obligation for Member States to respect a mutually agreed code of conduct codified in EU primary and secondary law.21 This code of conduct requires Member States to comply with their obligations by acting in line with the overall objectives of the EU.22 A Member State that applies measures that result in hindering these objectives would violate the principle of sincere cooperation and consequently violate EU law.23 By obeying the EU's system of making and
law-16 Helle Krunke and others, Transnational Solidarity: Concept, Challenges and Opportunities (Cambridge University
Press 2020) 23.
17 Cleynenbreugel (n 11) 18. 18 ibid, 19.
19 ibid, 20.
20 Daniel Thym and Evangelia L. Tsourdi, “Searching for solidarity in the EU asylum and border policies”(2017) 24
Maastricht Journal of European and Comparative Law 605, 612.
21 Iris Goldner Lang, “No Solidarity without Loyalty” (2020) 22 European Journal of Migration and Law 39, 41. 22 Esin Küçük, “Solidarity in EU Law” (2018) Solidarity in EU Law 38, 49.
implementation although it does not coincide with their national interest, Member States agree to share duties and responsibilities. This is at the core of the principle of solidarity.24
Similarly, the principle of mutual recognition was introduced to enhance the functioning of the Internal Market.25 The principle of mutual recognition, also codified in Art. 4(3) TEU, requires Member States to agree to mutually recognise each other’s norms when no European harmonisation is in place. For example, when a product is lawfully sold in one of the Member States other Member States should allow it on their market.26 Refusing to recognise another Member State’s regulatory system would hinder the Single Market and would result in failing to share duties and
responsibilities. Seen in this light, it is clear that the principles of sincere cooperation and mutual recognition entail a duty of mutual respect and solidarity among the Member States.27 In this
understanding of Member States’ solidarity, EU members refrain from imposing their own regulatory systems and are able to adapt to EU law standards in order to reach the greater aim: a more unified and developed EU in the context of the Internal Market.28
In conclusion, the principle of solidarity relates to the obligations between the Union and the Member States that act so as to share burdens and resources through a system of sincere cooperation and mutual recognition, moving towards a just and equal EU. In this climate Member States agree to pursue a common good by putting aside their short-term interests in light of future returns.29
However, it has been widely discussed whether solidarity is only a normative value or a legal principle.30 The following section of this chapter attempts to answer the latter question.
3.2. A General Principle of EU Law?
With the development of the Internal Market, solidarity slowly became a matter of EU law and it has been broadly addressed both in primary and secondary legislation. Both in the EU Treaties and in the case-law of the ECJ, the principle of solidarity clearly serves as an instrument to achieve a shared
24 Küçük (n 22) 49.
25 Christine Janssens, The Principle of Mutual Recognition in EU Law (Oxford University Press 2013) 29. 26 Case C-120/78, Cassis de Dijon [1979] ECLI:EU:C:1979:42.
27 Janssens (n 25) 29. 28 Cleynenbreugel (n 11) 24. 29 Küçük (n 22) 47-48. 30 Cleynenbreugel (n 11) 25.
interest.31 Indeed, the normative value of solidarity is generally accepted, however there is still no consensus so as to whether solidarity should be defined as a general principle of EU law.32
The drafters of the Treaties included the principle of solidarity in Art. 2 TEU and Art. 3 TEU as a general objective and value of the Union;33 in Art. 67 and 80 TFEU, where solidarity is required in the field of border checks, asylum and immigration policies; in Art. 122 and 194 TFEU, regarding economic policy and energy; in Art. 222 TFEU, concerning security and disaster relief.34 In addition in line with Art. 21 TEU, members are required to act in loyalty and mutual solidarity in the area of CFSP. Furthermore, it is also addressed in the Preamble of the35 Charter of Fundamental Rights of the EU (hereafter: CFR), where it is identified as one of the founding and universal values of the Union, in Chapter IV CFR, which carries the title of ‘Solidarity’ and Art. 35, which refers to solidarity in health care. For the importance attributed to it in primary and secondary law, many scholars and EU lawyers consider solidarity as a legal principle with normative effect.36
Similarly to the European legislator, the CJEU has addressed the principle of solidarity in several cases. In Commission v France and Commission v Italy, the CJEU has linked the principle of solidarity with the principle of sincere cooperation.37 The Court considered France and Italy to have failed their duty of solidarity by disregarding the principle of sincere cooperation. Indeed, France had violated rules on state aid while Italy had failed to bring into effect a certain Community rule on dairy products. In both these cases and many others, the Court referred to solidarity as the fundamental basis of the Community system.38 As it is shown from these past cases, solidarity implies obligations that Member States have to respect.39 These obligations are imposed even more clearly in the area of a common policy on asylum, immigration and border checks. Indeed, according to Art. 80 TFEU burden-sharing among Member States in this field is not an optional value of the
31 Küçük (n 22) 56. 32 ibid, 38. 33 ibid, 44.
34 Krunke and others (n 16) 314.
35 Charter of Fundamental Rights of the European Union (CFREU) [2012] OJ C 326/02, Art. 35. 36 Küçük (n 22) 39.
37 Joined Case C-6/69 and C-11/69, Commission v France [1969] ECLI:EU:C:1969:68 | Case C-39/72, Commission v
Italy [1973] ECLI:EU:C:1973:13.
38 Küçük (n 22) 52-53.
EU, but a real requirement.40 This is also clearly shown by the N.S. case, which dealt with Art. 78 and 80 TFEU and the Directive on minimum standards for giving temporary protection in the event of a mass influx of displaced persons.41 The ECJ explicitly referred to such primary and secondary law and clarified Member States obligations arising from it. From the foregoing arguments, it is safe to claim that the principle of solidarity is a legal principle of EU law.42 Therefore, it remains to verify whether it can be regarded as a general principle of EU law.
According to Eglė Dagilyte, in order to classify a principle as a general principle of EU law three features must be met: it should have constitutional status, it should be enforceable and it should have general application.43 As it was shown above, the principle of solidarity has constitutional status in the Treaties and in secondary law and it is considered a fundamental value of the EU.44
Concerning the second element characterising a general principle, the obligations deriving from such a principle must be clarified in legislation or by judicial interpretation.45 Albeit in the old Commission v France and Commission v Italy cases, the Court referred to a breach of the obligations determined by the principle of solidarity, later the ECJ was more skeptical to explicitly mention it in its case-law.46 Until the 2017 Slovakia and Hungary v Council case in which the CJEU shows the enforceability and the binding nature of the principle of solidarity (see chapter 4.2).47 Therefore, disagreeing with Eglė Dagilytė, who in her analysis ignored the above mentioned case-law and thus disregarded the principle of solidarity as a general principle of EU law for its lack of enforceability, this study considers the said principle to be of enforceable character.48
Finally, it must be verified whether the principle of solidarity is of general character and covers more areas of EU law. This is the most controversial feature to match. Indeed, primary and secondary EU law and the CJEU’s case-law suggest that the principle of solidarity only applies to specific islands of solidarity.49 It could be argued that the said principle seems to be confined in areas 40 Küçük (n 22) 60.
41 Joined Cases C-411/10 and C-493/10, N.S [2011] ECLI:EU:C:2011:865.
42 Eglė Dagilytė, “Solidarity: a General Principle of EU Law?” (2018) Solidarity in EU Law 86. 43 ibid, 80-85.
44 ibid, 79. 45 ibid, 83.
46 Commission v France (n 40) | Commission v Italy (n 40). 47 Slovakia and Hungary v Council (n 3), para 25.
48 Dagilytė (n 42) 88.
such as asylum policy, security and disaster relief and economic and energy policy. As a result, it is difficult to assert that the principle of solidarity is applicable to all areas of EU law. Nevertheless, it has been discussed that a value that covers one or more fields of EU law can still be acknowledged as a general principle of EU law.50 Moreover, it is not excludable that in the future this principle could spill-over to other areas of EU law and acquire a more general character. Indeed, the Court seems to be leaning towards this direction. In support of this argument, in the 2019 case of Republic of Poland v European Commission the General Court clearly expressed that the principle of solidarity “entails a general obligation on the part of the European Union and the Member States, in the exercise of their respective competences, to take into account the interests of the other stakeholders”.51 Therefore, according to the wording of the Court the European Union is under a general obligation of solidarity in regards to the Member States and the latter are obliged to respect solidarity among themselves in light of the interest of the Union. It is noteworthy to notice that Germany seems to disagree with this approach and argues that the principle of energy solidarity cannot impose obligations on the Union or the Member States.52 It will be interesting to see whether the Court will maintain its position in answering to the German appeal.
As a general principle of EU law, the principle of solidarity and fair sharing of responsibility can assume different functions: it can serve to interpret primary and secondary law, to review the legality of secondary law and to provide a basis for Member States’ liability.53 Furthermore, thinking of the principle of solidarity as a legal and general principle of EU law clarifies the role of such principle in generating obligations for Member States and the Union. Clear obligations under the principle of solidarity are evidently visible in the area of Asylum Law through primary and secondary legislation and case-law. Similarly, the CJEU case-law demonstrates that Member States are obliged to act in solidarity in the area of the Internal Market by respecting the principles of sincere
cooperation and mutual recognition. Finally, it additionally imposes the obligation to act in solidarity in the area of security, energy and natural disasters emergencies.
50 Ulf Bernitz and others, General Principles of EC Law in a Process of Development (Wolters Kluwer Law & Business
2008) 203.
51 Case T-883/16, Republic of Poland v European Commission [2019] ECLI:EU:T:2017:542, paras 70-75. 52 Case C-848/19 P, Appeal in Case T-883/16 Republic of Poland v European Commission.
53 Emmanuel Ugirashebuja and others, “General Principles of EU Law,” East African Community law (Brill Nijhoff
3.3. An Emergency-centred Principle
In this understanding of Member States’ solidarity and transnational solidarity, the EU can be seen as an aggregation of states that together can improve their problem-solving skills and can relieve each other’s burdens and responsibilities.54 However, the call for solidarity and its best achievements can be seen in case of emergencies. Indeed, when EU Member States find themselves facing an
emergency, the principle of solidarity seems to play a greater role.55 The emergency may vary either from an internal situation such as the Financial Crisis, or from an external humanitarian occurrence that have repercussions on one or more Member States at the same time such as the Refugee Crisis.56
The 2015 asylum crisis fostered developments in the CEAS by enhancing responsibility-assignation and cooperation among Member States. In light of the principle of solidarity and fair sharing of responsibility, progress was made in emergency intra-EU relocation and emergency funding schemes.57 While it is true that the solidarity principle prevails in exceptional situations rather than structurally existing in the administrative governance of the CEAS, the wording of the TFEU suggests differently.58 Indeed, the principle of solidarity and fair sharing of responsibility is embodied in Art. 80 TFEU and it refers to the general implementation of CEAS policies through solidarity. In addition, Art. 78(3) TFEU provides for the possibility to introduce provisional measures in emergency contexts. The additional introduction of Art. 78(3) TFEU suggests that the principle of solidarity should not be regarded as an emergency-driven principle but rather as the structural
principle governing Asylum Law.59 The relevance of the principle of solidarity throughout the asylum crisis is further dealt with in Chapter 4.
To conclude, the immigration crisis suggests that solidarity is normally promoted when facing internal or external difficulties. Thus, the principle of solidarity seems to be an emergency-driven principle.60 This is additionally indicated by Art. 222 TFEU, which calls for solidarity in the event of
54 Sangiovanni (n 14) 241. 55 Vanheule and others (n 4) 95.
56 Iris Goldner Lang, “The EU Financial and Migration Crises” (2018) Solidarity in EU Law 133.
57 Evangelia L. Tsourdi, “Solidarity at Work?” (2017) 24 Maastricht Journal of European and Comparative Law 667,
668.
58 ibid. 59 ibid, 673. 60 ibid.
terrorists attacks and natural or man-made disasters61 and by Art. 122 TFEU, which promotes the adoption of solidarity measures in energy emergencies.62 Therefore, it should be expected that in a global emergency-crisis, such as the outbreak of the Coronavirus, the solidarity principle will be the most adequate tool to respond. The importance that the principle of solidarity should acquire in the COVID-19 crisis is examined in Chapter 5 and 6.
Chapter 4: The principle of solidarity in emergency-crises: Refugee Crisis
As mentioned in the previous chapter, the principle of solidarity appears to be an emergency-centred principle that extensively shaped EU Asylum Law. This chapter investigates the development of the principle of solidarity in the field of international protection. The first section explores the legal basis for the implementation of the principle of solidarity as a means to enhance cooperation between Member States. This is shown by the adoption of certain Council decisions taken in light of the principle of solidarity. The second section takes the Slovakia and Hungary v Council case as a
turning point that marked the changing nature of the principle of solidarity: from an abstract principle to a binding principle with legal consequences. Finally, the last section explores the obligations emerging from the principle of solidarity.
4.1. EU Asylum Law and the Principle of Solidarity
As it was shown in Section 3.2. and Section 3.3. of this research, the principle of solidarity finds its more solid basis in the area of border checks, asylum and immigration law. Already in 2005, in the spirit of solidarity, EU institutions had founded agencies to support States at the external borders; this can be seen in the establishment of Frontex, a system of cooperation of Schengen Members, or the EASO, designed for the cooperation between Member States to improve the implementation of the CEAS.63 Successively, in addition to long-term funds such as the Migration and Integration Fund, the Emergency Assistance Instrument and the Internal Security Fund, the Framework Programme on Solidarity and Management of Migration Flows was created in order to strengthen solidarity among Member States and provide for the formation of an External Borders Fund, a European Integration
61 Lang, “The EU Financial and Migration Crises” (n 56) 140. 62 Küçük (n 22) 46.
Fund, a European Return Fund and the prolongation of the European Refugee Fund for the period of 2007-2013.64
Furthermore, in secondary law the principle of solidarity is included in the Preamble (8) of Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (the Dublin Regulation III).65 The latter demands Member States to act in a spirit of solidarity as to strike a balance in the division of responsibility in regards to the conditions of entry and stay of third country nationals. However, the Dublin Regulation III has been long criticised as to its inability to fairly distribute seekers of international protection among Member States. Indeed, this Regulation seems to shift the burden of the applications to the first-entry-country rather than
establishing a mechanism for burden-sharing.66 Despite the reforms introduced to the current Dublin Regulation, it is argued that this rule does not promote, in practice, the fair sharing of responsibility among the Member States.67 For this reason, in 2015 the Council was urged to adopt certain
measures that derogated from the Dublin Regulation III on the legal basis of Art. 78(3) and 80 TFEU. Art. 78(3) TFEU, read together with Art. 80 TFEU, poses the legal basis for measures
dedicated to the implementation of the principle of solidarity and fair sharing of responsibility in the area of EU Asylum Law.68 Naturally, these are the legal bases that were adopted during the migration emergency of 2015 that saw frontline countries such as Italy and Greece confronted with an
exceptional number of international protection applications. The Council decided to adopt new measures in order to respond to the Refugee Crisis. Hence, Council Decision 2015/1523 required a temporary relocation scheme to redistribute asylum-seekers from Italy and Greece among the other Member States, and Council Decision 2015/1601 provided for a second relocation scheme to relieve Italy and Greece from this great burden once again.69 These two emergency measures not only established the legal importance of the principle of solidarity, but also demonstrated the possibility
64 Giuseppe Morgese, “Dublin System “scrooge-like” Solidarity and the EU law” (2019) Diritto, immigrazione e
cittadinanza 85, 88-89.
65 Council Regulation (EC) 604/2013 [2013] OJ L 180/31. 66 Lang, “The EU Financial and Migration Crises” (n 56) 142.
67 Hemme Battjes, “Mutual Trust in Asylum Matters” (2011) The Principle of Mutual Trust in European Asylum,
Migration and Criminal Law 9.
68 Anja Radjenovic, “Emergency Measures on Migration: Article 78(3) TFEU” (European Parliament 2020).
for the Council to derogate from secondary law as they essentially constituted a derogation from the Dublin Regulation.70 These Council Decisions are further dealt with in the following section by analysing the Slovakia and Hungary v Council case.
4.2. A turning point: the Slovakia and Hungary v Council case
4.2.1. The facts
Another expression of the principle of solidarity as an emergency-driven principle is shown by the Slovakia and Hungary v Council case. This case was brought before the CJEU after the adoption of Council Decision (EU) 2015/1601 of 22 September 2015 that established provisional measures in the area of international protection for the benefit of Italy and Greece. The context of this decision was the 2015 Refugee Crisis that the EU was struggling with. The influx of migrants coming to the Union had reached unprecedented numbers and it was imposing a great burden to the Member States. However, members were not equally affected by this hardship.71 As established by the Dublin
Regulation, the country of first entry of persons seeking international protection had to be the country responsible for their application. Such a rule meant that border countries were greatly overwhelmed by the numbers of applicants that they were receiving. The Italian and Greek asylum systems were especially put under pressure by exceptional migratory flows; for this reason, the Council was urged to adopt Decision 2015/1601.72 The latter consisted in calling for concrete solidarity measures.73 More specifically, the decision required a temporary adjustment to the allocation mechanism of the Dublin Regulation. In order to relieve Italy and Greece from the burden of taking in numerous applications, the decision allowed for the relocation of seekers of international protection to other Member States, in light of a fair and balanced distribution.74 As a consequence, Slovakia and Hungary challenged the legality of the Relocation Decision and brought the case to the ECJ raising 16 pleas.75
70 Slovakia and Hungary v Council (n 3). 71 ibid, para 2.
72 ibid. 73 ibid, 12.
74 Radjenovic (n 68).
4.2.2. The substance
For the purpose of this research, not all 16 pleas are not discussed in this paragraph. This study only focuses on the importance of the substance of the case with respect to the European Asylum Policy and the principle of solidarity. In particular, Slovakia claimed that the Relocation Decision was not a necessary means in order to reach the wanted objective. Following this claim, the Court had to establish whether the Council made a manifest error of assessment when considering the possible solutions to the issue and so whether another less restrictive measure was available to attain the same result.76 The CJEU came to the conclusion that in light of the urgency of the situation in which Italy and Greece found themselves, the Council was required to act in respect of the principle of solidarity and fair sharing of responsibility between the Member States.77 Therefore, the provisional measures regarding the relocation system implemented by the Council were not considered to be
disproportionate or unnecessary.78 In other words, the Court used the principle of solidarity to justify the legitimacy of the contested decision taken by the Council. In paragraph 291, the Court takes another opportunity to reiterate the importance of the principle of solidarity in the context of Asylum Law by stating: “When one or more Member States are faced with an emergency situation within the meaning of Article 78(3) TFEU, the burdens entailed by the provisional measures adopted under that provision for the benefit of that or those Member States must, as a rule, be divided between all the other Member States, in accordance with the principle of solidarity and fair sharing of responsibility between the Member States, since, in accordance with Article 80 TFEU, that principle governs EU asylum policy.”79 It is important to emphasize the wording of the Court that considers the principle of solidarity and fair sharing of responsibility between the Member States as a rule to be implemented.80 This is a significant step forward for the ECJ, which puts the theoretical concept of solidarity into practice by establishing the legitimacy of the contested Decision and considers the principle as a fundamental element of the afore-mentioned Decision.81 This judgment is noteworthy insofar as it
76 ibid, para 236. 77 ibid, paras 252-53, 329. 78 ibid, para 253. 79 ibid, para 291. 80 ibid, para 253. 81 ibid, para 292.
rejects the classification of the principle of solidarity as a mere value of the Union and transforms it into a legal principle, thus establishing solid obligations for all Member States.
4.3. Obligations deriving from the principle of solidarity
Although the ECJ does not provide a precise definition of the principle of solidarity82, with the
Slovakia and Hungary vs. Council case the Court remarkably established that the principle of
solidarity produces binding obligations for Member States and the Union.83 Many scholars
considered it as a voluntary condition that invited Member States to act in a spirit of solidarity.84
However, the Court makes it crystal clear that solidarity ceases to be based on voluntary
commitments and Member States are now legally required to share responsibilities among each other through the adoption of the relocation mechanism, which is a set of concrete measures aimed at
enhancing the fair sharing of responsibility.85 Furthermore, the ECJ surprisingly reverses the view of
Slovakia. The latter claims that solidarity is not a legally binding principle and that the Member states
should only act ‘in a spirit of solidarity’, instead of acting in a duty of solidarity.86 In this judgment,
the strong stance of the CJEU is outstanding. The Court takes numerous opportunities to state and confirm that the Council was bound, in line with Art. 78(3) and 80 TFEU, to give effect to the
principle of solidarity with the contested Decision.87 In other words, the Court reconfirms solidarity
as a duty in EU Asylum Law and the possibility to enforce this principle through the adoption of
measures that are legally binding for Member States.88 Therefore, EU states are compelled to share
responsibilities, although this may pose additional burdens on single Member States as was the case in the Relocation Decision.
This judgment caused political discontent to arise in Hungary, which is rather concerned with the protection of its constitutional identity and is characterized by an unwillingness of allowing the
82 Andrea Circolo and others “The Principle of Solidarity between Voluntary Commitment and Legal Constraint” (2018)
9 CYIL 155, 171.
83 Slovakia and Hungary v Council (n 3).
84 Andrea Grimmel, “Is the Migration Crisis a Solidarity Crisis?” The Crisis of the European Union (Routledge 2018)
116.
85 Circolo and others (n 82) 172.
86 Slovakia and Hungary v Council (n 3), para 231. 87 ibid, para 252.
88 Vanessa Patrícia de Brito Fernandes, “European Solidarity at Crisis? The Case of the Relocation Decisions of 2015”
settling of a foreign population on its territory.89 On the same lines, Poland and Slovakia were
enraged at the verdict, complaining that the ECJ had given a highly political ruling rather than a legal
one.90 Moreover, Hungary, Poland and Czech Republic continued to refuse to accept asylum seekers
that were being relocated.91 In response to this refusal, the Commission brought an infringement
procedure against these three members before the CJEU claiming their failure to fulfil their
obligations under EU law. By finding Poland, Czech Republic and Hungary liable for non-fulfilment of EU obligations to comply with the Relocation Decision, the ECJ further established the concrete consequences of non-compliance with the solidarity principle. The Court stressed out that the
purpose of the Relocation Decision and the application of the solidarity principle would become void if Member States were permitted to rely on a general prevention ground for the intent to avoid the
fulfilment of their obligations.92 Once again, the CJEU confirms the justiciability of the solidarity
principle and sets a high bar for exceptions. However, at the time of this research the countries at
stake have still not complied with their obligations.93 This resistance on behalf of some Member
States influenced the Commission into proposing a new solidarity mechanism focussed on
relocation.94 The Commission emphasises the obligations of Member States to carry out relocations
and return sponsorships, whilst allowing Member States to decide the amount of efforts to be shared
among people to be relocated and returned.95 In other words, it seems that the Commission allows for
a certain degree of flexibility around the principle of solidarity.
In conclusion, on one hand the Slovakia and Hungary v Council case determines the legally binding obligation of the Union to give effect to the solidarity principle in the context of emergencies in asylum matters derived from Art. 78(3) and 80 TFEU. On the other hand, it clarifies the Member States’ obligation to share burdens and responsibilities by requiring them to put aside their national interests for the benefit of countries facing greater difficulties. Further, the Commission v Poland,
89 Anita R. Nagy-Nádasdi, “Hungarian Constitutional Identity and the ECJ Decision on Refugee Quota” (September 8,
2017).
90 “Europe Migrant Crisis: EU Court Rejects Quota Challenge” BBC News (September 6, 2017).
91 Joined Cases C-715/17, C-718/17 and C-719/17, European Commission v Republic of Poland, Hungary and Czech
Republic [2020] ECLI:EU:C:2020:257, paras 24-26.
92 ibid, paras 160-172, 180.
93 Emma Wallis, “Mixed Reactions to New EU Migration Pact” Info Migrants (September 24, 2020).
94 Donatienne Ruy and Erol Yayboke, “Deciphering the European Union's New Pact on Migration and Asylum” Center
for Strategic and International Studies (September 24, 2020).
Hungary and Czech Republic case demonstrates the determination of the Court to enforce the
justiciability of this principle with concrete consequences in the area of Asylum Law. While the ECJ takes a revolutionary and firm stance on the principle of solidarity in the area of asylum; the
Commission, on one side, contributes to bring to light the liability of Member States and on the other, it seems to be favourable to a softer interpretation by proposing a new solidarity mechanism of a
compulsory but flexible nature.96 The new position of the Commission could be worrying as it may
have the effect of softening the responsibilities of Member States with respect to the principle of
solidarity.97 Yet, the Commission did not disregard the importance of the principle of solidarity
inasmuch it confirmed the compulsory nature of it.98 Hence, the obligations deriving from this
principle under Asylum Law are still binding and enforceable.
Chapter 5: The principle of solidarity in emergency-crises: Coronavirus Crisis
The previous chapter showed how the principle of solidarity has been applied in the context of one of the greatest emergencies that the Union has faced since 2015: the Refugee Crisis. This chapter is dedicated to the application of the principle of solidarity to another emergency that surfaced in 2020: the Coronavirus Crisis. Before analysing the value of the principle of solidarity in EU Public Health Law, a short introduction on the legal framework of this field of law will precede. Finally, the connection between the principle of solidarity and EU Public Health Law is discussed and it is applied to the current Coronavirus emergency. Essentially, this chapter seeks to determine whether the principle of solidarity can impose obligations on MSs and the Union in the area of public health.
5.1. A short overview on EU Public Health Law
The distribution of competences in relation to health in the EU are established in the Treaties. According to Art. 4(1)(k) TFEU, the Union and the Member States enjoy shared competences in the area of common safety concerns related to public health matters. In addition, Art. 6(a) TFEU
provides the Union with competences to complement Member States’ operations in the protection and improvement of human health. Furthermore, when acting the Union should take into
96 ibid.
97 Wallis (n 93).
consideration, inter alia, the promotion of the protection of human health according to Art. 9 TFEU. Lastly, Title XIV TFEU is dedicated to Public Health and with Art. 168(1) TFEU the Union is required to supplement national policies for the improvement of human health and, more importantly for this research, the Union and the Member States should complement each other in the fight against major health scourges and cross-borders health threats e.g., COVID-19.
Contrary to what it is generally assumed, MSs do not hold exclusive competences in regards to public health matters.99 It is clear from this legal framework that not only the competences in relation to public health matters in the EU must be shared between the Union and the Member States, but also that the Union should cooperate with the MSs in order to protect and improve human
health.100 However, regarding the health care systems of the Member States, the Union has little manoeuvring space to intervene.101 In fact, healthcare is not organised at a European level. Instead, European health systems are organised at national and regional levels, where Member States are engaged with the protection of the health of their own nationals.102 In other words, as it is currently developed, health in the EU is not based on solidarity among the Member States.103 Furthermore, Art. 168(5) TFEU establishes a ban on the harmonisation of measures in this field of law.104 Additionally, according to Art. 168(7) TFEU, the Union must respect the responsibilities of the Member States in regards to national health policies. Notwithstanding, Art. 168(5) and (7) TFEU do not have the effect of prohibiting measures that impact health matters.105 Indeed, a measure aimed at the elimination of the trade restrictions under Art. 114 TFEU can harmonize rules concerning public health. The pursuit of non-economic goals in EU harmonization is a constitutional obligation. Art. 168(1) TFEU states that health requirements are to form a constituent part of the Union’s other policies. In addition, Art 114(3) TFEU expressly requires that a high level of human health protection is ensured in the process
99 Kai Purnhagen and others, “More Competences than You Knew?” (2020) European Journal of Risk Regulation 297,
298.
100 Neergaard (n 8) 23. 101 ibid, 24.
102 ibid, 35.
103 Jean V. McHale and Tamara K. Hervey, European Union Health Law: Themes and Implications (Cambridge
University Press 2015).
104 Case C-376/98, Tobacco Advertising I [2000] ECLI:EU:C:2000:544, para 77. 105 ibid, para 78.
of harmonization.106 Therefore, Art. 168(5) TEFU only prevents harmonization based on that Article, while incidental harmonisation via Art. 114 TFEU remains permitted.107
5.2. EU public health and the principle of solidarity
Although the principle of solidarity is not explicitly addressed in Art. 168 TFEU, in paragraph 2 of this Article both the cooperation between the Union and the Member States and the cooperation among Member States themselves is strongly encouraged in order to offer support, inter alia, in the fight against health plagues, as stated in paragraph 1 of this Article. Furthermore, Art. 196 TFEU on Civil Protection ensures the same kind of cooperation in the occurrence of man-made and natural disasters. This Article is to be read in conjunction with Art. 222 TFEU. As mentioned in Section 3.3., the Treaty of Lisbon introduced the solidarity clause under which Member States and the Union should operate in a spirit of solidarity in event of man-made or natural disasters (Art. 222(1)(b)). It follows in Art. 222(2) that Member States should assist one another in such challenging times.
Finally, the principle of solidarity in the area of health is included in Chapter IV of the CFR. More specifically, Art. 35 establishes the importance of solidarity in health care. It must be noted that the CFR has the same legal value of the Treaties, however it cannot itself function as a legal basis.108 Indeed, according to the scope of application of the CFR enshrined in Art. 51 CFR, the Charter cannot extend the power of the Union as defined in the Treaties.
5.2.1. Obligations emerging from the principle of solidarity
This research attempts to ascertain whether the same obligations emerging from the principle of solidarity can spill-over to the area of EU Public Health Law in the context of the Coronavirus emergency-crisis. Based on the previous findings, the main difference between the obligations deriving from this principle that can be found in these two fields of EU law concerns Union institutions’ obligations. As established in Chapter 4, under the principle of solidarity the Union is under the obligation to give effect to the solidarity principle in emergency situations within the area of Asylum Law.109 This clear obligation derives from Art. 78(3) and Art. 80 TFEU, which
106 ibid, para 88.
107 Purnhagen and others (n 99) 300.
108 Margot Horspool and others, European Union Law (Oxford University Press 2018) 98. 109 Brito Fernandes (n 88) 12-13.
specifically mention that the principle of solidarity governs the AFSJ. In contrast, in absence of Articles establishing the contrary, the Union is not under an obligation to implement the solidarity principle within the field of EU Public Health Law and the COVID-19 outbreak. However, the EU has the competences to do so.110 On their side, Member States are under the same obligation that can be found within the area of Asylum Law: sharing burdens and putting aside national interests while fronting the current crisis. Therefore, this study recommends applying the solidarity principle to face the Coronavirus outbreak insofar as this principle is strongly indicated to resolve emergencies.
5.3. The principle of solidarity and the outbreak of COVID-19
As shown in the previous chapters, the importance of the principle of solidarity comes to light when an emergency is at the door. Already on the 13th of March 2020, the Commission issued a
Communication suggesting a coordinated economic response to the COVID-19 outbreak and
stressing the importance of ensuring solidarity in relation to essential medical goods within the Single Market.111 This was a reaction to national restrictions on the free movement of health care supplies adopted by some Member States. Although these measures can be justified on the basis of Art. 36 TFEU on the protection of health, they must be suitable, proportionate and necessary.112 If looked at from the perspective of the principle of solidarity, bans on exportation of medical goods are to be deemed disproportionate.113 Indeed, they hinder the achievement of the health objective of ensuring that all Member States receive the medicines they need.114 Hence, the Commission invited national governments to refrain from the adoption of such measures and pointed out the need to act in a spirit of solidarity and cooperation.115 This invitation originated from the desire to avoid the creation of barriers to access medical supplies, where Member States needing them the most might be deprived by other Member States.116 Again, on the 8th of July 2020 during a meeting at the European
Parliament, the President of the European Commission Von der Leyen called for solidarity in her
110 Purnhagen and others (n 99).
111 Coordinated economic response to the COVID-19 Outbreak, Brussels (n 6). 112 ibid.
113 Anniek de Ruijter and others “EU Solidarity and Policy in Fighting Infectious Diseases” (2020) SSRN Electronic
Journal 4, 15.
114 ibid.
115 Coordinated economic response to the COVID-19 Outbreak, Brussels (n 6). 116 ibid.
speech, emphasising on a ‘sense of collective responsibility’ and the need to rethink values of solidarity in Europe.117
In this view, on the basis of Art. 222 TFEU an EU Civil Protection Mechanism was
established, and it was reactivated in 2019 in response to the Coronavirus crisis.118 The main goal of this instrument is to intensify the cooperation between Member States in the context of disasters.119 This mechanism was strengthened by Decision 2019/420, that introduced rescEU, dedicated to the creation of a stockpile for medical goods.120 Furthermore, this decision proposes a more centralised Union by empowering the Commission to implement distribution and allocation decisions as well as the use of EU internal funds.121 However, this tool was not as efficient as it should have been
because, once again, it only worked on a voluntary basis and Member States were not required to adhere to it.122 Although the European institutions demonstrated a firm sense of solidarity, these were only informal and therefore not legally binding documents. Hence, these mechanisms did not prohibit Member States from adopting national measures providing for export bans on medical essentials and did not oblige them to act in a spirit of solidarity.123
Nevertheless, this study argues that the powers of the EU include the adoption of binding measures based on solidarity in the field of Public Health Law in the event of health emergencies. The adoption of such measures is possible because, as it was established in Section 3.1, the Single Market is at the basis of solidarity. Specifically, on one hand Member States have to comply with the principle of sincere cooperation by acting in line with EU norms and objectives. These include, inter alia, the respect of the free movement of goods. On the other hand, the Union shall act in order to guarantee the smooth functioning of the Internal Market. Therefore, measures that are aimed at eliminating obstacles to the free movement of medical goods and that, incidentally, promote a high protection of human health are to be considered lawful.124 These measures must genuinely contribute
117 “Speech by President Von Der Leyen” European Commission - Press corner (July 8, 2020). 118 Ruijter and others (n 113) 6.
119 “EU Civil Protection Mechanism” European Civil Protection and Humanitarian Aid Operations - European
Commission (May 4, 2020).
120 “RescEU” European Civil Protection and Humanitarian Aid Operations - European Commission (October 5, 2020). 121 Ruijter and others (n 113) 13.
122 See Nicoletta Pirozzi, “COVID-19 Emergency: Europe Needs a Vaccine” IAI Istituto Affari Internazionali (March 18,
2020).
123 Council Decision (EU) 2019/420 [2013] OJ LI 77/1. 124 Tobacco Advertising I (n 104) para 88.
to removing obstacles to free movement of goods.125 Even measures that have the objective of eliminating future restrictions are legitimate, if such restrictions are likely to happen.126 These
measures must complement domestic law in the absence of national acts addressed to combat a health scourge such as the Coronavirus and they must also respect the principle of proportionality. Finally, such acts would produce the obligation on Member States to act in a duty of solidarity and would therefore require them to share responsibilities in the area of public health. Then, as a general principle of EU law, the principle of solidarity would provide an independent ground for review of this secondary legislation and for Member States’ liability.127
In conclusion, concerning the response to the Coronavirus emergency, Member States currently retain exclusive competences on legislating over domestic healthcare policies. However, it should be emphasised that the Union may adopt measures to complement public health policies, especially if aimed at combating major health emergencies and at removing obstacles to trade.128 These measures must be adopted based on the principle of solidarity and fair sharing of
responsibility, which is an enforceable principle with legally binding obligations.129 Thus, Member States would be under an EU obligation to respect and implement such measures within their national systems and could be found liable in the event of non-compliance. In the next chapter specific
measures that could be adopted in order to respond to the COVID-19 crisis in relation to the purchase and procurement of vaccines is discussed.
Chapter 6: Solidarity in the deployment of vaccines within the Union
This chapter investigates the role of the principle of solidarity with respect to the purchase and distribution of vaccines between the Member States. The first section takes the 2009 Swine Flu public emergency-crisis as an example, in order to demonstrate how the lack of solidarity among the MSs resulted in some EU members struggling to provide vaccines for their citizens. The second section, in light of the principle of solidarity, takes into consideration this past experience and
125 ibid, para 84. 126 ibid, para 86.
127 Ugirashebuja and others (n 53) 219. 128 Pirozzi (n 122).
proposes a new solution to handle the Coronavirus crisis. This section attempts to apply the
conclusions drawn in previous chapters and analyses the legitimacy of the proposed solution based on the previous discoveries.
6.1. A dive into the past for a better future: the Swine Flu and the lack of solidarity in the purchase and procurement of vaccines
COVID-19 is not the first health emergency that the world and the EU are forced to face; the Swine Flu (or H1N1) quickly infected a large part of the world population in 2009.130 The response of the EU to the outbreak of this pandemic is scrutinised in this section in order to highlight the issues the EU faced in enacting countermeasures and suggesting solutions based on the principle of solidarity. At the time of the H1N1 virus, many informal European bodies existed to respond to public health dangers: the European Center for Disease Control (ECDC), the European Medicines Agency (EMA), the Early-Warning and Response System (EWRS) and Health Security Committee (HSC).131 The creation of the latter was aimed at coordinating Member States decisions when facing health
threats.132 In order to combat this disease, various countermeasures were taken at the EU level. These included market authorisations of vaccines, passenger screening, contact tracing of patients as well as surveillance and response coordination.133 The authorisation of these medical countermeasures are a shared responsibility between Member States and the Union. The EU is required to centrally approve the launch of vaccines and antivirals in the European Internal Market, although Member States can also authorise them and are compelled to mutually recognise their distribution. Instead, the
procurement of these medicines is currently discretionary to each MS.134
During this emergency-crisis, one of the main issues that arose within the EU was indeed the allocation of vaccines.135 The Commission proposed to assemble a stockpile of vaccines, however no agreement was met.136 While some Member States obtained large quantities of medicines that
promised the acquisition of immunity against H1N1, other Member States were not able to meet the 130 Ruijter (n 2).
131 Ruijter (n 2) 123-124. 132 ibid, 127.
133 Filipo B Bastos and Ade Ruijter, “Break or Bend in Case of Emergency?” (2019) SSRN Electronic Journal 610, 628. 134 Ruijter (n 2) 131.
135 Ruijter and others (n 113) 10. 136 ibid.
vaccination needs of their populations.137 Furthermore, some Member States were forced to purchase antivirals at higher prices, when compared to the prices paid by other Member States. This price difference was largely dependent on the pharmaceutical company they had traded with, the kind of contracts they had stipulated and the time the purchase was made. At the time, many Member States, driven by the interest of protecting their own citizens, had contracted pre-purchase agreements with pharmaceutical companies. This clearly resulted in an imbalanced distribution of critically needed medicine throughout the Union.138 Equitable access to pandemic vaccines was not on the agenda and therefore the national interests of some of the more resourceful Member States favoured an unequal approach to the allocation of these medicines.139 This clearly showed that there was a strong lack of solidarity among Member States with respect to public health emergencies such as the one that was rampaging through the Union at the time.140 Member States were not ready to share responsibilities in order to mutually relieve each other of their burdens. More importantly, Member States were under no EU obligation to adhere to the principle of solidarity. To address the allocation problems and the costs of the vaccines, the Commission introduced a procurement programme envisaging that Member States with a surplus of these products could sell them to other Member States. Thus, they created a stockpile with the surplus vaccines from some states.141 Nonetheless, no legally binding measures were taken; this procurement programme was on a voluntary basis and the Member States were not obliged to comply with it.142 Therefore, Member States could not have been found liable for failing the duty of solidarity and fair sharing of responsibility.
The H1N1 pushed the EU to the adoption of Decision No 1082/2013/EU on serious cross-border threats to health and repealing Decision No 2119/98/EC. This decision was enacted on the legal basis of Art. 168 TFEU and it aims at, inter alia, legalising the procurement programme introduced by the European Commission. Preamble (13) specifies that the goal of this decision is to help Member States obtain the vaccinations necessary for their populations in the occasion of pandemics and Art. 5 established the Joint Procurement Agreement (JPA), based on voluntary
137 Ruijter (n 2). 138 ibid, 146.
139 David P. Fidler, “Negotiating Equitable Access to Influenza Vaccines” PLOS Medicine (May 4, 2010). 140 Ruijter and others (n 113) 9-10.
141 ibid, 10.
