Covid: the questionable strategy of European states


At the dawn of the summer of 2022, in July 22, we see the announcement of a 7th wave of the Covid virus all over the news. The arrival of new BA.4, BA.5 and BA.2.75 variants in the middle of summer, identified as more transmissible and dangerous for the world population, does not bode well. How is this crisis being managed in Europe ? Health precautionary measures are once again being discussed, such as the wearing of masks in enclosed spaces, or the return to remote working to combat this new wave. A legislative arsenal is again being studied to (re)implement these measures, which results, in the end, in a generalized immobility.
While infections have increased by about 32% in Europe, health measures continue to be relaxed against the advice of immunology experts. In the face of the new surge of covid cases all over Europe (in France, with more than 133,000 new cases on Thursday 30 June alone, according to Santé publique France) we are entitled to wonder why the abandonment of sanitary measures has been programmed without adjustments after the propagation report. We are talking here about simple measures such as the health pass, wearing a mask in public transport or closed places, and more specifically in restaurants or airports, when we know that the virus spreads in just a few minutes in closed places that generate traffic and gatherings. Some will say that we are learning from the unknown, while others, whose opinion is stronger, will say that we knew the outcome and that political demagogy is at work. Indeed, the situation is unprecedented (a covid wave in the middle of summer is unheard of) but this can be explained when governments advocate popular measures modelled on electoral periods (which satisfy popular demand, often represented by a majority). The economic issue must also be taken into account if we consider that the world economy has been in a slump since 2020, and that a holidaymaker vows to spend money during five months of the summer period in resorts with high tourist potential. This represents a reminder of the shortfall in consumption over seven months. Let’s count the elements considered as decisive, there are three : the economy and the growth of the states, which has been weakening since the appearance of Covid, the political stakes linked to the elections, and finally, social rest, as the majority of citizens consider the sanitary measures to be a constraint.

Beyond these facts, what place is given to the law, first at the European level, and then on a subsidiary basis in the member countries that apply the European regulations ?

On the issue of Covid management in Europe, it is important to know that states are integrating their full sovereignty because the European Union actually has little room for manoeuvre in the area of health policies. As stated in Article 168 of the Treaty on the Functioning of the European Union (TFEU), health is a supporting Community competence : the EU « shall encourage cooperation » and « shall complement, but not replace, national policies ». In other words, it only orders recommendations, it is a soft law. The European Union’s value is therefore only to coordinate actions between the 27 members. The States are therefore responsible for creating their own regulations within the European legal framework.
However, it appears that the Charter of Fundamental Rights of the European Union has an obligation to ensure a high level of human health protection. In order not to directly contravene Article 168 TFEU and state sovereignty, the EU is strengthening its position by creating the Health Emergency Response Authority (HERA). Its constitution will be proposed by the end of 2021 for a launch and entry into service in 2023. The Covid crisis is far from over and the prospect of new health threats has probably prompted the creation of this structure, which aims to improve the response to cross-border health threats. Furthermore, the UN organisation’s Director for Europe, Hans Kluge, removes any doubt: « The virus is not going to disappear just because countries stop monitoring it. It is still infecting, it is still changing and it is still killing. »

Like the Biomedical Advanced Research and Development Authority (Barda) in the United States, the European Commission has been inspired by this model, which depends on the US Department of Health to work with laboratories and pharmaceutical companies. Here is its scope.
Member States are therefore free to apply the health measures they legislate. They are fully responsible in case of failure, as is currently the case in France in a decision handed down on Tuesday 28 May, where the Paris Administrative Court explicitly questions part of the State’s management of the health crisis. According to the plaintiffs, the State had implemented a communication failure, in particular regarding the usefulness of masks for the general public. The court also decided that the State had committed a fault by making “statements which may have had the effect of dissuading the population from using masks”.

In conclusion, let’s enjoy our mask-free holidays, and let’s wait for years (or months) to come until the states are legally held responsible for their failings.


Emilie LE BON
Jurist in International Law & Economics
All reproduction prohibited

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