Op-Ed: “EU law in extraordinary times” by Daniel Sarmiento
We are living in extraordinary times. The events that have unfolded over the past few days, and the ones that are still ahead of us, will go down as a pivotal moment in history. Nothing will ever be the same again.
EU law is no exception to this.
First, EU law is changing mode and turning into a law of emergency. When facing an extraordinary event like the COVID-19 pandemic, law turns into emergency law. So is EU law, now facing the daunting task of setting the standards of an EU response to what is certainly the continent’s greatest economic challenge since World War II and the post-war reconstruction of the late 40s and early 50s. EU lawyers became acquainted with emergency EU law during the financial crisis of 2008, but that precedent pales in comparison to the scope and severity of what is yet to come. The major European sanitary crisis that first comes to mind is the mad-cow disease of the late 90s, but that was also a minor event when compared with the impact of the COVID-19 pandemic. We have never faced emergency EU law such as that we will witness in the days and months to come.
Second, there is no area of policy untouched by the outbreak of COVID-19. From State Aid to agriculture, from banking and finance to consumer protection, there is no place to hide. The impact of this crisis is so immense that it will need a holistic approach in order to structure a coherent response in legal terms. This will not be an emergency EU law to ensure only, for example, financial stability. Whatever is enacted will be targeted to ensure the existence of Europe and its Member States as a working society, preserving their social model, social cohesion and its liberal-democratic values. The emergency EU law that will have to be enacted will be a rule-book for the protection and preservation of European society as a whole. Therefore, it is the integrity of EU law and all its policy areas that are at stake.
Third, EU Law will become a source of imaginative responses to compensate for the EU’s lack of competence in some areas. Article 352 TFEU and the implied powers doctrine will have to be stretched and dragged into unchartered territories. Areas or policy, such as public health, will have to be radically reconsidered. A provision like Article 168 TFEU, which reflects Member States’ concerns with shielding their health systems from EU interference, has now become a naïve and frivolous sign of national egotism when confronting the stakes posed by the COVID-19 pandemic. Serious reflection must be put into conceiving new means of EU intervention in the course of a health crisis that spills-over the entire tapestry of societal and individual life. The Commission is starting to realise this and its first steps, assertive and decisive, have however been introduced in a piecemeal way in order to avoid any impression of competence creep. This might have to be reconsidered if we want the EU to take decisive but also sweeping and convincing measures throughout the difficult months that lie ahead.
Fourth, no matter how extraordinary the events may be, the classics of EU law are still the basic means of the toolkit. We are entering emergency law territory, but thanks to the formidable effectiveness of EU law there is a lot that can be done with the existing instruments. The Commission’s guidelines on free movement of goods, issued on Monday, are a good example of how well-established case law on justifications to free movement restrictions can be applied to the current situation. It is also good to know that the Commission will take sweeping action at the Court of Justice against any Member State that wishes to play its own tune when it comes to deploying any protectionist temptation, no matter how daunting the sanitary prospects may look like. We are all in this together, and the infringement procedure, together with an assertive European Commission and an authoritative Court of Justice, can prove this right without having to reinvent the wheel. Classic free movement law and infringement procedures (with interim relief, if necessary) can do the job. A difficult balance between creativity and orthodoxy in the use of legal instruments lies ahead.
And fifth, it is precisely in this critical juncture that the values of the EU are most precious. In such a critical situation there is a temptation to find safety in our own national comfort zones and to look for scapegoats in our neighbours. The fact that non-democratic regimes have made use of draconian measures to contain the virus (apparently with success) will also embolden the illiberal autocrats from within. Naming a deadly virus as a ‘foreign virus’ is taking an easy route to blaming others (always the convenient enemy) and evading our own responsibilities. There are too many tempting but unethical and opportunistic ways of explaining the challenges ahead to our fellow citizens. But it is precisely at this time that the values of human rights, solidarity and the rule of law are crucial. The sweeping force of what is now to come could unbalance our fragile democracies in such a way that we need to keep firm and reject any invitation to go native. There is only one way to return to our normal lives and learn from past mistakes: protect the vulnerable, provide financial stability, preserve our values and make use of all the extraordinary powers that the EU and its Member States have through a strict attachment to the rule of law.
No matter how extraordinary this may be, EU law should deploy all its powers (of which it has many) but also set all the necessary limits. Flirting with shortcuts, like children playing with matches, would eventually set the house on fire.
Daniel Sarmiento is Editor-in-Chief of EU Law Live and Professor of EU Law at the University Complutense of Madrid.