Published online by Cambridge University Press: 14 January 2020
In this article, we ask what the impact is of the role of the EU administration in responding to emergencies in terms of (changes to) the rule of law. A response to an emergency in some cases creates exceptions to rule of law guarantees that bind the authorities to procedural rules and fundamental rights. These exceptions can become more permanent and even change the constitutional order of the EU. We articulate the legal framework for health emergencies, and discuss how the EU court has interpreted and developed this framework in two key decisions. We then ask whether this framework offers adequate safeguards for upholding the rule of law in cases of major health emergencies. We conclude that public health emergencies can bend and even break rule of law requirements for the EU administration, and advocate for more legal guidance on proportionality, which may offer better safeguards suited for protecting the rights of affected parties.
We want to thank our colleagues and the reviewers for their invaluable comments on this article. We also thank Mark de Wilde and the colleagues participating in the Amsterdam emergency “book club” for the interesting discussions on constitutional emergency theory.
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2 The first legislative instruments on the common agricultural policy provided for urgent measures in case of abrupt shifts in market prices. See for instance Art 22 of Regulation 19/62, on the progressive establishment of a common market in cereals.
3 See Case C-270/12, United Kingdom v European Parliament and Council, EU:C:2014:18, where the powers of the European Markets and Securities Authority to address certain emergencies in financial markets were challenged by the British government.
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47 It is worth pointing out that these administrative procedures are also applicable in cases involving genetically modified food and feed (see Art 34 of Regulation 1829/2003).
48 Art 20 of Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency.
49 Art 20(3) Regulation (EC) No 726/2004.
50 Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation).
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58 Council Directive 85/511/EEC of 18 November 1985 introducing Community measures for the control of foot-and-mouth disease.
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64 Council Directive 92/59/EEC of 29 June 1992 on general product safety. The Directive was replaced by Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety, which is still in force.
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76 European Commission Staff Document, “European Commission Staff Document, Regulatory Process for the Authorization of Antiviral Medicines and Vaccines in the Protection against Pandemic Influenza H1N1 2009, Accompanying Document to the Communication to the Commission to the Council, the European Parliament and the European Economic and Social Committee and the Committee of Regions, Pandemic Influenza H1N12 2009 (COM(2009) 481-SEC(2009)119 Final)”.
77 Commission Proposal, “Commission Proposal for a Decision of the European Parliament and of the Council on Serious Cross-Border Threats to Health Brussels (COM (2011)866 Final)”.
78 Decision No 1082/2013/EU, supra, note 11, at para 8.
80 Art 18 Health Threats Decision; ibid, 30. However, Art 5(4) of Regulation (EU) No 182/2011, particularly where it concerns issue of human health, limits the power of the Commission where the Committee on Serious Cross-Border Threats has not delivered an opinion.
81 Art 12 Health Threats Decision, para 31, and see Art 8 Regulation (EU) No 182/2011.
82 Art 11 Health Threats Decision.
83 Art 2(4) Health Threats Decision.
84 Art 12(1)(a) Health Threats Decision.
85 Art 12(1)(b)(i) Health Threats Decision.
86 Art 12(1)(b)(ii) Health Threats Decision.
87 Art 13 Health Threats Decision.
88 Art 2 of Regulation (EC) No 507/2006; Art 21 of Regulation (EC) No 1234/2008.
89 This was when the medicinal legislation was still dependent on a WHO declaration of emergency (The Health Threats Decision currently provides the possibility for declaring an emergency at EU level) “Commission Staff Working Document, Regulatory Process for the Authorisation of Antiviral Medicines and Vaccines in the Protection against Pandemic Influenza (H1N1) 2009 Accompanying Document to the Communication from the Commission to the Council, the European Parliament, and the European Economic and Social Committee and Committee of the Regions, Pandemic Influenza A (H1N1) 2009 (COM(2009) 481 Final)”.
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93 Art 17 Health Threats Decision.
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97 Art 10(2) Health Threats Decision.
99 Art 8 Regulation (EU) No 182/2011.
100 Art 14; Art 18 Health Threats Decision.
101 When the EU identifies public health risks, this is a central reason for denying a person entry to EU under the Dublin procedures.
104 Fioritto, supra, note 12, p 115.
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106 Dokter, supra, note 59, para 71.
107 This is the point of view emphasised by Binder et al, supra, note 62.
108 Joined Cases C-58/10 to C-68/10, Monsanto, EU:C:2011:553, para 77.
109 Fioritto, supra, note 12, p 96 ff.
111 Annex to Council Directive 92/59/EEC of 29 June 1992 (previous general product safety regulation), point 3.