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In brief

The EU has urged member countries to grant more legal powers to the EU in pursuit of a ‘Health Union’, which would enable the EU to better manage future crises. This announcement comes in the wake of the COVID-19 pandemic, which exposed areas of weakness and gaps in the EU’s health powers. Critics argue that the pandemic has seen a lack of effective measures to monitor medicines shortages, that the EU Infectious Diseases Agency’s advice lacked effectiveness, and that there was a disjointed approach to the virus across EU member states. In response, the Commission expressed desire to make the following changes:

  • create an EU-wide pandemic preparedness plan
  • align testing methods with EU labs
  • give the European Medicines Agency (EMA) more power to mitigate drug shortages

In depth

In addition to these proposals, European Council President, Charles Michel, has proposed the creation of an International Pandemic Treaty, which would aim to prevent future global disease outbreaks and better coordinate a worldwide response. Michel noted that the global treaty would embody lessons learnt from the COVID-19 pandemic however he did not give any specific details so it is currently not clear how such a treaty would fit with existing infrastructures around global cooperation on public health, for example the WHO.

Against a backdrop of a system in which health powers have long been closely guarded by EU member countries, with national leaders eager to show they have the ability to take care of their constituents, the EU’s proposals may seem fairly radical. However, the COVID-19 pandemic has, in this key area, caused a slight relinquishing of power from member countries, with members giving the Commission power to negotiate vaccine deals on their behalf. As a result, the European Commission has recently accounted that the EU has secured a total of nearly 2 billion vaccines for the bloc’s approximately 440 million people.

While this move from the EU does represent a significant tide-change, this has not been without its own difficulties. The Commission has struggled to get countries to send through vaccination plans and is still waiting for countries to transfer €750 million for the Commission to secure vaccine deals. Moreover, Hungary has decided to pursue its own vaccine deal with Russia and the UK has also declined to join the vaccine scheme, resulting in the UK purportedly paying a higher price for the vaccine.

A further difficulty with the EU taking on more health powers has been transparency. EU officials will not provide information as to the amount paid for the vaccines, which is especially of interest for institutions which benefited from public research funds, as critics have argued that this might result in vaccines being paid for twice. The EU has also declined to disclose terms of the contracts, including details of potential protections for pharmaceutical companies should the vaccines fail to meet projected efficacy rates. In the face of increasing pressure to disclose even parts of the contracts, Health Commissioner Stella Kyriakides has said that due to the competitive nature of the global market, the Commission is not able to disclose this information to the public.

Despite a number of member countries resisting the transfer of power to Brussels, it is generally agreed that a more integrated approach to health crises would be beneficial. The Netherlands, Sweden and Romania, in a recent discussion paper, have suggested strengthening the EU’s Integrated Political Crisis Response to include national representatives with decision making power in their own member countries, as well as a better data-sharing with a crisis communication network as remedies to the current disjointed system. The three member countries however do argue that capitals are best placed to make emergency health decisions, rather than the EU.

It is clear that there is a strong appetite for international cooperation in the health space, and the COVID-19 pandemic has only served to highlight the need for increased collaboration among member countries in order to achieve better health outcomes for European citizens in times of crisis. It remains to be seen whether the UK’s refusal to take advantage of the EU’s bargaining power in negotiating vaccine deals will further prove the benefits to be gained from ceding power to Brussels’ Health Union.

Author

Julia Gillert is an Associate in Baker McKenzie's London office.

Author

Lilli Meldrum is a Trainee Solicitor in Baker McKenzie London office.

Author

Magda Tovar joined Baker McKenzie in September 2019 as a Knowledge Lawyer for the Global Healthcare and Life Sciences Industry Group, covering healthcare and life sciences legal issues for -the EMEA region. She also supports the Industry Group at a global level on many knowledge management matters including thought leadership projects and global surveys. Before joining Baker McKenzie, Magda was a senior legal adviser at the European Medicines Agency (EMA) for 16 years where she advised on a broad spectrum of matters related to EU pharmaceutical law, covering medicines for human and veterinary use. She represented the EMA in cases before the General Court and the Court of Justice of the European Union.