Will Covid-19 lead to increased EU oversight of public health?

With the Coronavirus crisis there are a growing number of voices calling on the European Union to do more in terms of coordinated health actions. Who exactly is favourable to shifts in Union’s health competencies and what are the legal challenges and real possibilities? The European Federation of Neurological Associations (EFNA) is joining the calls for the expansion of EU health competencies, a stand-alone EU Health Programme and increased funding for public health and health research.

Under Article 168 of the Treaty on the Functioning of the European Union a high level of human health protection should be ensured in the definition and implementation of all Union policies and activities. The Union’s action should complement national policies, while respecting the responsibilities of Member States in the definition of their health policy and the organisation and delivery of health services and medical care.

This effectively means that EU countries have full control over their health competencies (with some minor exceptions) and they can participate in health initiatives coordinated by the EU should they wish to. Indeed, the EU Member States have long clung on to their power over health matters and have been reluctant towards any EU attempts to interfere with their health entitlements.

The former Commission’s President Jean-Claude Juncker attempted to take some important dossiers further away from the EU health directorate (DG SANTE). In years 2018 – 2019 rumours had been growing that DG SANTE might even be scrapped altogether. This would have been a terrible news for civil society organisations active in the public health domain and indeed, as many believe, very bad news for all EU citizens.

There was widespread relief when the new Commission President, Ursula von der Leyen, not only did not diminish the role of DG SANTE, but actually gave it increased powers. Medical devices were brought back to SANTE (they were part of DG GROW’s portfolio in the previous five years) and a unit dealing with pharmaceuticals as part of the biotechnology and food supply chain was similarly transferred back.

Meanwhile, in 2020, the only health-related legislation moving through the EU institutions concerns health technology assessment (HTA) – the process of creating scientific reports that evaluate the efficacy of any given drug compared to similar medications on the market.

Then came the novel Coronavirus. Many voices are now saying that national capitals should loosen their grip over health matters.

Then came the novel Coronavirus. Many voices are now saying that national capitals should loosen their grip over health matters. Some countries, including those hardest hit, have called for the EU to do more. Curiously, as noticed by Commission Vice President Frans Timmermans, among them are countries and people who just six months ago, “would have cried havoc had Europe ever considered wanting to take up competencies in the field of health care.”

Who’s in favour of what?

“We need stronger EU tools to protect public health”

Who exactly is favourable to shifts in the European Union’s health competencies?
There is the French president for one, who has called for an increase in the EU’s health powers, although the details aren’t clear. And, as usual, it is those details that can make the major difference. The broad spectrum of changes can lie anywhere between increasing the EU’s emergency powers to EU Treaty change. It could also include boosting the European Centre for Disease Prevention and Control (ECDC), a move suggested by prominent German officials like Health Minister Jens Spahn and MEP Peter Liese, the European People’s Party health leader in the European Parliament. Renew Europe MEP Véronique Trillet-Lenoir, meanwhile, has suggested the EU negotiate drug prices together — a similar suggestion to one made by Parliament President David Sassoli in early March- that the EU establish an agency for purchasing medicines and medical gear. Another Parliamentary political group Socialists and Democrats issued a letter to EU leaders that reads: “We need stronger EU tools to protect public health … Therefore, S&D calls for the urgent creation of a European Health Union”. More on the health union will be revealed in the coming days. The letter also suggests that EU health agencies such as the European Medicines Agency and the European Centre for Disease Prevention and Control need to be strengthen (see a similar plea from Germans above) and new complementary EU health agencies shall be envisioned.

The Health Commissioner Stella Kyriakides recently told the European Parliament’s committee dealing with public health that in order to really improve coordination and allow the EU ‘to step in’, the EU would need new and expanded powers. “I hope this will be a discussion that we’ll be having in the future, including at the planned Conference on the Future of Europe”, she added.

A petition signed by more than 6,000 Europeans, including former prime ministers, commissioners and a Parliament president,  is calling on the EU to make public health and the fight against epidemics a shared competence of the EU, as well as to act as a federal state in health emergencies.

Joan Costa-Font, an associate professor at the London School of Economics, is another supporter of creating a European public health authority — which would require a treaty change if it were given real powers, he says. He points to how Germany’s states began to take in patients from other worse-hit European countries. If there had been an EU-wide health authority that had stepped in to do this sooner and with more countries, Costa-Font argues, “Europe would likely have far fewer fatalities … This collaboration and collective action cannot be enforced without transferring health powers to the European level,” he said.

The EU Treaties

The option that holds the biggest promise of a real reform and change would require revisiting the EU Treaties. This is however a cumbersome and lengthy endeavour. It would entail ratification votes in national parliaments as well as risky referendums and it would take several years to complete. Some believe however that such a radical move isn’t necessary for now and the answer could be found in applying the current treaties and develop the policies.

But what exactly could be the likelihood for changing the Treaties? The EU’s founding Treaties have been revised by the Member States in numerous rounds of reforms. Such Treaty revision is a way to ensure that EU primary law evolves, adapts, and responds to new developments and changing needs. The last comprehensive Treaty reform dates back to the Lisbon Treaty, which entered into force on 1 December 2009. The Maastricht Treaty, in turn, did increase the EU’s ability to act in health, giving the Commission a coordinating role with the member countries. It led to the creation of the ECDC, which was designed in 2004 to fight infectious diseases after the SARS outbreak.

What will ‘the Future of Europe’ be?

While another comprehensive Treaty change is not yet on the agenda, the recent debates on the ‘Future of Europe’ triggered a number of reform proposals, some of which would necessitate revision of the EU Treaties.

Indeed, it has been suggested that the upcoming Conference on the Future of Europe could be the perfect forum to debate this. The conference is a project announced by President Ursula von der Leyen to give Europeans a greater say on what the Union does and how it works for them. But even in those planning stages in January, the Commission didn’t want to mention treaty changes (such option, included in the first draft, was in fact removed in the final text). Much has changed since January however and there is a likelihood that the Commission may now reverse its stance.

Will the EU stand-alone Health Programme make its come back?

The Commission provides money – relatively small amounts by EU budget standards – for such things as health research, expert networks for rare diseases, and some prevention policies. One such pot of money has been managed by DG SANTE under a heading of the EU Health Programme, with a miniscule budget of €449.4 million under the Third Health Programme 2014-2020 (during that time many billions of Euros have been spent on health research under the Horizon 2020 EU Framework Programme). The initially proposed budget for health for 2021 through 2027 was €413 million, down 8 per cent on the current period (equally, there has been an overall decrease in terms of total percentage of funds to be allocated to health research under the successor of Horizon 2020, i.e. Horizon Europe).

The previous EU administration under Jean-Claude Juncker decided to consolidate health spending (EU Health Programme) with several other programmes into an enlarged programme called the European Social Fund. This, coupled with budget reductions, didn’t paint a very optimistic picture with reference to EU ambitions to address health challenges.

However, the recently leaked version of the EU’s long-term budget redraft states that “Experience from the ongoing crisis has demonstrated that the EU would benefit from an ambitious stand-alone Health Programme that is fit for purpose”. According to the draft paper, which offers fresh details on the EU’s post-coronavirus budget redraft effort, this new programme would concentrate on “continuously improving health conditions across the member states, through better prevention, access and treatment which has already been pursued through the currently existing programme.”

It is yet to be seen what the current health crisis will mean for the budget initially allocated to public health as well as health research. But call are already being made to increase it. One example is a letter signed by 29 MEPs demanding that EU leaders “ensure the support of health policies and health systems as a new priority in the next EU budget.” The signatories are asking for a significant increase in funding for the health strand of the European Social Fund Plus, as well as “to increase the budgets of those other key financial instruments … that support health-related activities and policy mechanisms.”

EFNA is joining the calls for expansion of EU health competencies, stand-alone EU Health Programme and increased funding for public health and health research. Our main vehicle to do so at the moment is through EFNA’s participation in the policy group of the EU Health Coalition, where we actively support the idea that the Coalition calls for more health in the EU. Those changes couldn’t be more timely. We will also consider teaming up with our closest partners to issue a joint statement on this matter.

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