European Union
Agnolucci, Irene, ‘Will COVID-19 Make or Break EU State Aid Control? An Analysis of Commission Decisions Authorising Pandemic State Aid Measures’ (2022) 13(1) Journal of European Competition Law & Practice 3–16 Abstract: This article analyses Commission Decisions authorising State aid between March and December 2020 in order to explore their possible consequences on the internal market and the level playing field.1 The research is aimed at evaluating whether the relaxation of State aid control due to coronavirus disease 2019 (COVID-19) has produced disparities between the Member States and unfair advantages—or disadvantages—for EU companies. Even though final calculation of aid can only be finalised when undertakings actually receive the specific aid, however, the Commission’s decisions assessing State measures do give a clear indication of at least two phenomena—first, the geographical distribution of aid in the EU and second which policy objectives were favoured by the Member States in the period of time considered.
Andone, Corina and Florin Coman-Kund, ‘Persuasive Rather than “binding” EU Soft Law? An Argumentative Perspective on the European Commission’s Soft Law Instruments in Times of Crisis’ (2022) 10(1) Theory & Practice of Legislation 22–47 Abstract: This paper starts from the premise that argumentation in EU (Commission) soft law instruments is essential for their effectiveness, mainly due to its function to persuade addressees as a means to enhance compliance. Notwithstanding their importance in the EU legal-political landscape, the problem is how to ensure that these instruments devoid of formal legally binding force can function as effective governance tools by convincing addressees to comply, particularly during crisis periods such as the Covid-19 crisis, when fast and effective action is urgently needed. By pointing at a number of significant legal problems and concerns deriving from the Commission’s ‘hardened’ soft law instruments, we suggest a normative approach focusing on the potential of EU soft law instruments to act as highly persuasive tools. By making the instruments’ argumentation a core concern, we examine its role as a means to improve the intrinsic quality of EU (Commission) soft law and to foster effective compliance. To this end, we propose a theoretical-analytical framework combining insights from law and argumentation theory, that puts forward an argumentative toolbox for the analysis and assessment of EU (Commission) soft law instruments. This toolbox comprises four argumentative parameters that need to be taken into account in the drafting and evaluation of EU (Commission) soft law instruments: (1) the content of the argumentation, (2) the design of the arguments pointing at persuasive suggestions for cooperation, (3) the factors influencing argumentative effectiveness, and (4) the soundness of argumentation.
Anjos, Maria do Rosario, ‘Public Procurement in Times of Pandemic Covid 19: The Exception Regime in Portuguese Law and Times of Change in E.U.’ in Jeton Shasivari and Balázs Hohmann (eds), Expanding Edges of Today’s Administrative Law (ADJURIS, 2021) 196–204 Abstract: This work focuses on the importance of public procurement in the context of the recent COVID 19 pandemic and the impact it has had on the legal rules for these con- tracts. The analysis refers to the context of the Portuguese legal order and its connection to the European Union law. Objectives: examine the effects of the pandemic on the legal regime of public procurement in Portugal and its compliance with EU law. Analysis of legislative measures adopted by the prevention, containment, mitigation and treatment of epidemiological infection by COVID-19. Methodology: study of new legal measures introduced in pandemic time and study of the solutions adopted by Portuguese law. Results: we present the results of analysis of changes to the rules applicable to the formation of public works contracts, contracts for the leasing or acquisition of movable property and the acquisition of services, provided by the administrative public sector or similar, as result of the pandemic crisis.
Arroyo Jiménez, Luis, ‘Administrative Procedures and Emergencies under Spanish and EU Law’ (2022) 34(1) European Review of Public Law_ _Abstract: In case of emergency public authorities can take extraordinary measures, which alter the balance struck between the relevant constitutional principles in ordinary situations. This has also an effect on procedures for the adoption of administrative rules and decisions. This article studies five typical manifestations of this process in view of the measures taken to cope with the health, economic and social crisis brought about by COVID-19: expediting, streamlining, staying, replacing, and removing administrative procedures.
Barbano, Mario, ‘State Aid Law as Applied to the Airline Industry: Pandemic Crisis and Long-Term Perspectives’ (PhD Thesis, University of Genoa, 2024) Abstract: This dissertation investigates EU State aid law applicable to the airline industry so as to ascertain its effectiveness in dealing with market shocks and environmental challenges. By looking at the case-law and Commission’s practice on State aid awarded to the aviation sector during the pandemic, the research inquires whether the EU State aid policy needs to be adjusted in order to minimize distortions within the EU internal market and to ensure that public spending is consistent with the long-term environmental objectives of the European Union. First, the relevant international and EU legal framework is assessed (Part I) and then a database of decisions and rulings on pandemic-related aid to the airline industry is displayed (Part II). The lessons learned from this study are then further elaborated as to explore future trends in EU State aid law enforcement and litigation.
Basaran, Bahriye, ‘A Closer Look on the Effectiveness of the EU Legal Framework for Excessive Pricing during the COVID-19 Crisis’ (2022) 18(1) European Competition Journal 82–104 Abstract: The unanticipated global mass panic that has arisen as a result of the rapid spread of the COVID-19 has had a major impact on the functioning of many markets. Many competition authorities around the world have faced with excessive pricing practices due to the dramatic price hikes of essential items, ranging from personal and medical equipment to basic food products particularly at the onset of the pandemic. The crisis has not been just about pricing, whether the public or the state is willing to pay for certain products or not; at the heart of the problem, there has been a sudden sharp asymmetry between the supply and demand. Based on this asymmetry, this article, by acknowledging that Article 102 (a) fails to deliver a swift and efficient response to this crisis due to conceptual and practical difficulties in its application, addresses other ways that competition authorities and governments use to deal with the virus-profiteers.
Birmontiene, Toma, ‘The Main Trends in Constitutional Jurisprudence Developed by Constitutional Courts During the COVID-19 Pandemic’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 87–96 Abstract: The article analyses the problems related to the constitutionality of the legislation adopted during the time of the COVID-19 pandemic, in particular, it examines how European constitutional courts were looking for new, or somewhat forgotten, ways of interpreting the constitution and searching for a proper balance between the interests of the individual vis-à-vis those of society, whether the executive authorities did not overstep their powers, whether the states properly chose the specific legal regulation to control the pandemic, whether the requirement that human rights restrictions to control the pandemic must be based on law remained unchanged during the pandemic, and whether the precautionary principle is not a substitute for the constitutional principle of proportionality. The article considers if constitutional courts faced the dilemma as to whether the justification for the differentiated implementation of human rights based on a specific criterion in time of the pandemic could be constitutional. The pandemic situation also highlighted the importance of scientific knowledge in addressing public and human health issues in constitutional jurisprudence. The article is based on several decisions adopted by constitutional courts of European countries during the pandemic, which seem to highlight some important trends in constitutional jurisprudence in this respect.
Bolborici, Ana Maria, ‘The COVID 19 Pandemic and the Fundamental Rights in the EU’ (2021) 14(63) Bulletin of the Transilvania University of Braşov. Series VII: Social Sciences • Law 17–22 Abstract: The year 2020 and also 2021 brought both progress and setbacks in terms of fundamental rights protection. The COVID-19 Pandemic triggered multiple crises not only at the sanitary level. In this context, people in Europe and also all over the world had the impress that their fundamental rights are not respected and limited. The paper offers a perspective about the impact of COVID-19 on human rights and emphasis some highlights weaknesses.
Bostoen, Friso et al, ‘Corona and EU Economic Law: Competition and Free Movement in Times of Crisis’ (2020) 4(2) European Competition and Regulatory Law Review 72–95 Abstract: The outbreak of the coronavirus—and the responses of governments and businesses to combat the medical and economic crisis it entails—raise a number of urgent questions, many of which concern European economic law, i.e. the competition rules and free movement provisions. Can businesses cooperate to guarantee the supply of essential items or a vaccine notwithstanding the cartel prohibition of Article 101 TFEU? Is the excessive price doctrine of Article 102 TFEU a match for the price increases caused by hoarding behaviour? Can competition authorities continue to assess mergers, and might they even become more sympathetic to certain arguments such as the failing firm defence and industrial policy considerations? Under which conditions are Member States allowed to grant aid to undertakings that face economic difficulties due to the crisis? Can Member States prohibit the export of medical supplies to other Member States, and can they close their borders for European citizens? And how much freedom do public procurement rules leave governments to quickly conclude contracts for essential supplies? This article addresses these pressing questions in a comprehensive manner. It situates the numerous guidance documents adopted by the European Commission within the broader framework of EU economic law and then evaluates the compatibility of the public and private corona-related measures with that framework. The aim is to offer a legal guide for governments and businesses combatting the corona crisis.
Bulum, Božena, Marija Pijaca and Željka Primorac, ‘Public Service Compensation and Prolongation of Public Service Contracts in the Maritime Transport Sector under European Union Law in the Case of COVID-19’ (10th International Maritime Science Conference (IMSC), 2023) 471–478 Abstract: The COVID-19 pandemic minimized the mobility of European Union (hereinafter: EU) citizens and businesses by sea and caused disruptions in the maritime supply chains. Consequently, the EU designed a series of measures to protect mobility and connectivity in Europe. This paper is dedicated to the analysis of the measures concerning the award of public service compensation to the maritime transport operators (shipowners) with whom Member State concluded public service contracts or imposed public service obligations (prior to or after the outbreak of the COVID-19 disease) in order to ensure the regular provision of the maritime transport services. Maritime transport services covered with these measures are freight and passenger transport, provided whether as cabotage or transport between two or more Member States or between EU and third country. The objective of the paper is to discuss and analyse under which conditions these measures do not constitute State aid or can be exempted from the ex ante notification to the Commission and a public contract concluded for the provision of the maritime transport services may be prolonged without a new award procedure and whether these terms are applicable also in case of other exceptional occurrences (such as wars, global economic crisis, etc.). In this context, relevant EU Law will be analysed: sector specific rules on the provision of maritime transport services (Regulation 3577/92 on the provision of maritime cabotage services and Regulation 4055/865 on the provision of international maritime transport services), EU State aid rules (criteria established in the Altmark judgement), applicable rules on public procurement (Directive 2014/23/EU and Directive 2014/24/EU) and lastly, Working document issued by the departments of the European Commission for information purposes in response to the COVID-19 crisis.
Cattelan, Valentino, ‘Sacred Euro: Sovereign Debt(s) and EU Bare Credit in the Corona Crisis’ (SSRN Scholarly Paper No ID 3592382, 4 May 2020) Abstract: This is a contribution that I wrote for the discussion opened by Prof. Werner Gephart among the current and former Fellows of the Käte Hamburger Center for Advanced Study in the Humanities ‘Law as Culture’, on the topic ‘The Corona Crisis in light of the Law-as-Culture Paradigm’. The paper advances an interpretation of the current EU political impasse about how to deal with the COVID-19 emergency by shifting Agamben’s paradigm of the ‘homo sacer’ to the ‘sacertas’ of the Euro. In this frame, it describes the Euro as a currency (nomisma) lacking in an appropriate nomos to give Member States (economic) credit backed by EU (political) credit.
Cheesman, Samantha Joy, ‘The Hungarian Legislative Response to the COVID-19 Pandemic and Its Challenges to the Rule of Law’ in Mathieu Deflem (ed), Crime and Social Control in Pandemic Times (Emerald, 2023) 141–154 Abstract: This chapter examines how the response to the pandemic will have an impact for many years on rule of law mechanisms and human rights within Hungary. The arguments put forward in this chapter are supported by analysis of key legislation both domestic and international concentrating on how the concept of rule of law has been redefined. This analysis is conducted by focusing on the Hungarian legislation, Fundamental Law, and key sources engaging in the analysis of the effects that the COVID-19 pandemic has had on reshaping the legal landscape. In the unprecedented times of a global pandemic it is important to reflect on how the Governments of the world responded to the immediate danger and what ramifications those changes will have as the pandemic unfolds over the coming years. This raises questions regarding the European political landscape and how the cause of the rule of law can be furthered. This chapter argues that the rule of law project of the European Union (EU) as set out in Article 2 of the Treaty of the European Union (TEU) has been circumvented by several rogue states. The European parliament now is finding new ways to engage with and curtail ‘rogue’ Member States which, according to them, step out of line.
Comșa, Ana, ‘The Role of the Institutions of the European Union in the Fight against Coronavirus Pandemy’ [2021] (1) Fiat Iustitia 24–36 Abstract: In the context of the Coronavirus pandemic, the institutions of the European Union have monitored the whole situation, adopting a number of measures that apply throughout the Union.This included the adoption of relevant legislation and ongoing coordination with Member States to exchange information, assess needs and ensure a coherent response at EU level. According tothe EU Treaties, Member States are responsible for adopting measures at national level to respond to the CoVID-19 pandemic, in particular as regards national health systems, the repatriation of citizens or restrictions on life. Showing solidarity, in parallel with managing the consequences of the crisis internally, Member States came to each other’s aid by providing support where it was most needed. They provided services, specialized personnel and medical equipment.Collaboration, they managed to repatriate almost half a million Europeans who were stranded abroad by mid-April 2020. The collective action of the EU institutions has focused on responding to the immediate health crisis and its humanitarian needs, strengthening the health, water supply and sewerage systems of partner countries, increasing their research and preparedness capacities to cope with the pandemic, and mitigating the socio-economic impact.
Ćorić, Lucija and Anto Čartolovni, ‘Ethical, Legal and Policy Challenges in COVID-19 Contact Tracing Apps: A European Perspective’ in Assya Pascalev and Gergely Tari (eds), Ethical Issues of the SARS-CoV-2 Outbreak in East-Central Europe and Beyond (Trivent Publishing, 2024) 98-112 Abstract: In an effort to combat the global pandemic caused by COVID-19, countries around the world swiftly developed contact tracing mobile applications with the aim of fastening and objectivizing manual contact tracing of people infected with SARSCoV-2 virus. The apps encountered worldwide scepticism regarding their ethics, especially considering the privacy issue. The idea was supported by several joint documents in theory, but only a few Member States implemented it in practice, with some of them differing even from the commonly agreed technical points. This reveals a lack of solidarity and political weakness, pointing to deeper political issues within the EU.
Correia, Vincent, ‘The General Court’s Decisions on State Aid Law in Times of COVID-19 Pandemic’ (2022) 47(1) Air and Space Law 1–24 < https://kluwerlawonline.com/journalarticle/Air+and+Space+Law/47.1/AILA2022001 > Abstract: The unprecedented crisis caused by the pandemic of Coronavirus disease 2019 (COVID-19) not only shattered the economics of the aviation industry, it also put to test long established legal rules, while Governments were desperately adopting emergency measures. Facing a very severe situation, caused by airspace closures and restrictions imposed to travellers, several European airlines received governmental support, while others did not. This led to criticisms from airlines, most notably from the low-cost carrier Ryanair, which transposed into legal actions undertaken in front of the General Court of the European Union. At the heart of this legal battle lay the rules governing State Aid, as the European Commission was criticized for not assessing thoroughly enough the measures that were notified by the Member States. The judgments of the General Court revealed that, irrespective of the exceptional situation faced in Europe, the correct application of EU Law must prevail, which includes the judicial review of acts adopted by the European institutions. As two decisions of the Commission authorizing measures of governmental support were annulled, some lessons can be learnt for the future.
De Pauw, Bruno and Herwig Verschueren, ‘The Framework Agreement on the Applicable Social Security Law in Case of Habitual Cross-Border Telework after the Pandemic’ [2023] ERA Forum (advance article, published online 16 October 2023) Abstract: Since the COVID-19 pandemic, the prevalence of telework has significantly increased, including for those employees who work across borders. However, cross-border teleworking within the EU has some legal consequences, more specifically for the determination of the applicable social security legislation. Indeed telework could lead to a change in the applicable social security legislation, with consequences for the employee’s and the employer’s rights and duties. This article first examines the measures that were taken during and shortly after the pandemic in order to avoid such change. Next, it analyses the Framework Agreement that was concluded by a number of Member States on this issue and that is applicable for the coming period.
Delhomme, Vincent N, ‘The Legality of COVID-19 Travel Restrictions in an “Area without Internal Frontiers”: Court of Justice (Grand Chamber) 5 December 2023, Case C-128/ 22, “Nordic Info”’ (2024) 20(2) European Constitutional Law Review 307–328 Abstract: The Covid-19 pandemic shook our societies to their core, leading to restrictions on civil liberties unseen in recent history. Its effects on the EU legal order may still be felt today, not least because of the adoption of the Next Generation EU recovery plan. Among the non-pharmaceutical interventions adopted to limit the spread of the virus, limitations on people’s freedom of movement and assembly were at the forefront of the public response, in the form of stay-at-home orders, closures of businesses and international travel bans. The ‘Nordic Info’ case deals with the latter type of restrictions, more specifically the measures adopted by Belgium during the summer of 2020. These measures sought to limit the movement of persons between the Belgian territory and the zones where the virus was most active, the so-called ‘red zones’. Belgium was not alone in this regard. At different points in time during the pandemic, governments within and outside the EU adopted more or less stringent travel restrictions.
Doliwa-Klepacka, Anna and Mieczysława Zdanowicz, ‘The European Union Current Asylum Policy: Selected Problems in the Shadow of COVID-19’ (2022) 35(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 1001–1017 Abstract: Recent years in Europe have generated situations requiring the European Union to take extra-coordinated action in the field of asylum policy. The sudden and growing influx of refugees to Europe in 2015 and 2016 has caused the collapse of the previous common European asylum system. The European Union has taken a number of measures to resolve this crisis situation. When the situation seemed to be under control, a new challenge emerged in early 2020. The first COVID-19 infectious disease case was reported in Europe, and on 13 March 2020 the WHO reported that Europe had become the epicentre of the coronavirus pandemic. The measures taken by individual countries and the European Union to limit the spread of the virus have had a significant impact on many spheres of state and individual functioning, including the situation of persons seeking international protection. This publication consists of three parts. The first part discusses actions taken by the European Union in the face of the migration and refugee crisis that emerged in 2015 and 2016. The second part presents one of the limitations introduced in connection with preventing the spread of COVID-19, which has a huge impact on persons wishing to seek international protection, i.e., changes in the regime of crossing borders and entering the territory of particular countries. The third one points out selected problems experienced by persons seeking protection who already stay in the territory of EU Member States.
Domina, Mariia, ‘Reforming EU and UK Long-Term Investment Funds: Brexit, COVID-19 and War in Ukraine’ (2024) 39(2) Journal of International Banking Law and Regulation 75–77 Abstract: Long-term investment funds allocate capital to socially important projects aimed at sustainable growth and fuelling the economy in the times of Brexit, Covid-19 and the war in Ukraine. This article critically compares recent reforms of ELTIF (EU) and LTAF (UK), two long-term investment funds opened to both professional and retail investors.
Donati, Alessandra, ‘The Conditional Marketing Authorisation of Covid-19 Vaccines: A Critical Assessment under EU Law’ [2022] European Journal of Health Law (Advance article, published online 4 March 2022) Abstract: The decision of the EU Commission, based on positive advice from the European Medicines Agency, to grant conditional marketing authorisation to Covid-19 vaccines should be qualified as a precautionary measure. Under the established case law of the CJEU, the conditions for the application of this principle are met. Such conditions are the existence of a risk to the environment and public health and uncertainty. Given this qualification as a precautionary measure, whether the Commission had complied with the procedural obligations that surround the implementation of this principle under EU law was assessed. Some shortcomings are identified concerning the risk assessment conducted by the European Medicines Agency and the risk management carried out by the Commission.
Fabbrini, Federico and Christy A Petit (eds), Research Handbook on Post-Pandemic EU Economic Governance and NGEU Law (Edward Elgar, 2024) Book summary: This Research Handbook provides a comprehensive analysis of post-pandemic EU economic governance and Next Generation EU (NGEU) law. It explores the profound impact of Covid-19 on the architecture of EU economic governance, focusing on the establishment and implications of the NGEU Recovery Fund.
Földes, Mária Éva, ‘If Jabless Then Jobless? EU Court Refuses to Second-Guess National Covid-19 Vaccination Mandate Contested by Health-Care Worker’ (2024) 10(1) International Labor Rights Case Law 127–131 Abstract: During the covid-19 pandemic, several countries have imposed vaccination as a job-related requirement enforced by sanctions. Some workers have opted for litigation to challenge such policies. Examples include Greek health-care professionals and French firefighters3 turning to the European Court of Human Rights (ECtHR) seeking the suspension of national vaccination obligations, and US health-care workers seeking to enjoin the enforcement of the State of Maine’s vaccination regulation. This commentary discusses the approach of the Court of Justice of the European Union (cjeu) to disputes concerning compulsory vaccination. The analysis focuses on Case C-765/21, D.M. v. Azienda Ospedale-Università di Padova, a request for preliminary ruling in a dispute revolving around the suspension without pay of a nurse after she refused to get vaccinated against covid-19. The analysis discusses the CJEU’S view on the relevance of EU law for the issue of compulsory vaccination and compares the cjeu’s approach with that of the ECtHR. It remarks on the outcomes of litigations challenging vaccination mandates and their relevance for the sphere of labor and employment.
Frankenberg, Günter et al, ‘The End of Globalization?: Resurging Nationalism, Authoritarian Constitutionalism and Uncertain Futures of Democracy’ (TLI Think! Paper No 22/2020, 7 December 2020) Abstract: This special issue arises from a Focus Seminar on ‘‘The End of Globalization? - Resurging Nationalism, Authoritarian Constitutionalism and Uncertain Futures of Democracy” held at the Transnational Law Institute of King’s College London in 2019. Inspired by the discussions at the Focus Seminar, it brings together three eminent legal scholars, Günter Frankenberg, Jiří Přibáň and William Partlett, to address the complex challenges to democracy, the rule of law and human rights we are currently facing. An introduction by Benedikt Reinke opens the special issue.
Gábriš, Tomáš and Ondrej Hamuľák, ‘Pandemics in Cyberspace: Empire in Search of a Sovereign?’ (2021) 14(1) Baltic Journal of Law & Politics 103–123 Abstract: Traditionally, the idea of a sovereign is being connected either with an absolutist ruler (later replaced by ‘the people’) at the national level, or the nation-state at the international level – at least in the conditions of the Westphalian system created in 1648. Today, on the contrary, we are witnessing a ‘post-’ situation in many respects – post-modernism, post-positivism, but also post-statism – basically being a sort of return to the pre-Westphalian system (see Ondrej Hamuľák, ‘Lessons from the “Constitutional Mythology” or How to Reconcile the Concept of State Sovereignty with European Integration,’ DANUBE: Law, Economics and Social Issues Review Vol. 6, No. 2 (2015); or Danuta Kabat-Rudnicka, ‘Autonomy or Sovereignty: the Case of the European Union,’ International and Comparative Law Review Vol. 20, No. 2 (2020)). However, paternalistic views, prevailing especially in times of crisis and uncertainty, desperately search for a sovereign to lead us from the crises. With regard to cyberattacks and insecurity in the cyberspace this means an effort to subordinate cyberspace to state sovereignty. Still, given the limitations of traditional state-based monopolies of power and legislation, the state as an ‘analogue sovereign’ shrinks in the digital cyberspace rather to a co-sovereign, co-ordinator, or in feudal terms a ‘senior’ vis-à-vis their vassals. The actual ensuring of the tasks of state as a ‘digital sovereign’ is namely often being entrusted to non-state (essentially private-owned) entities, under the threat of legal sanctions. The current situation of constructing ‘digital sovereignty’ of traditional states or of the EU is thus marked by the necessity of cooperation between the state power and those non-state entities which are falling under its analogue jurisdiction.
Gasmi, Gordana and Momir Grahovac, ‘European Response To Covid 19 Pandemic – Legal Framework And Lessons For The Future’ (2021) 15(1) FIAT IUSTITIA 86–98 Abstract: The study analyzes legal and strategic constraints of the European Union (EU) response during Covid-19 pandemic. First lesson to be learnt is the legal limitation of the EU’s competence in the field of public health protection that causes relative inefficient reaction of the EU institutions during pandemic. Second lesson lies in inadequate application of the solidarity clause at the beginning of the Covid-19 pandemic, exactly at the time of marking the 70th anniversary of Schuman’s declaration. On the one hand, there is a lack of powers at the EU level, given its coordinating competence. On the other hand, there was a noticeable lack of solidarity among the EU Member States, solidarity which is legally established in the provisions of the Lisbon EU Treaty. There is a battle between the role of the state with its sovereignty and the concept of europeanization of pandemic supression, which proved to be prevalently unsuccessful. Some Member States, especially Romania and Hungary as well, performed an efficient approach to immunisation of their population, separate from the EU institutions. Successful example of Serbia, European candidate country, in mass vaccination of its inhabitants points to the fact that the state is primarily responsible in the field of public health. However, the advantage of the EU in the fight against pandemic is in the weakness of national approach to pandemic prevention, bearing in mind its global character. Hence the need to reform the EU legal framework and strengthen the political will of the EU members for deeper cohesion and coordination of public health protection measures. This would strengthen the EU’s role in international co-operation in preventing and controlling possible future pandemic threats and in contributing to the European and global health security.
Gnes, Matteo, ‘Wars and Fights against Pandemics: The Re-Emerging Role of the State as Guarantor of Last Resort’ (2022) 34(1) European Review of Public Law_ _Abstract: The global health emergency caused by Covid-19 urged States to find new ways of protecting their citizens and regulating their lives, to cooperate with each other, to change priorities on their political agendas. Probably, the pandemic will change the course of history. The pandemic woke up the State from its ‘dormant’ status. The State is regaining an important and major role as guarantor of last resort, especially in the fields where the European Union (at this stage of European integration) does not and cannot act as such: external security, internal security and public order, safety of its citizens, State economic interests in the so-called ‘strategic’ sectors. It may be questioned if the role of the State as guarantor of last instance is unchallengeable, or if the European Union may, little by little, acquire such a role. Although this would be advisable, at this stage of European integration the State remains the guarantor of last instance, for at least three reasons: the special allegiance between the State and its citizens, the national solidarity and the possibility to use emergency powers.
Gomez, Laura, ‘The Implementation of the European Pillar of Social Rights (EPSR) in the Post-Pandemic Era’ (SSRN Scholarly Paper No ID 3991870, Social Science Research Network, 22 December 2021) Abstract: The European Pillar of Social Rights (EPSR) was to be implemented in a growth and stability period, once the financial crisis was overcome. However, an unexpected and bigger social and economic crisis has developed with the COVID-19 pandemic. The lack of employment opportunities, the precarious working conditions and the intensification of vulnerabilities predict that this crisis will be more harmful to European cohesion than its predecessor. In response to these challenges, the EU institutions have proposed extraordinary funding instruments and have transformed the former economic governance rules aiming at improving employment and growth, environment, but also of the resilience of a more inclusive and fairer society. Our research question refers to how this context can affect the implementation of the European Pillar and Social Rights. To answer this question, first, we will review the instruments provided in the EPSR for its implementation. Second, we will consider how this implementation is conditioned by the transformation of the economic governance rules from the 2008 crisis to the current crisis. Third, we will examine the Action Plan for the implementation of the European Pillar of Social Rights launched during the European Council Porto Summit.
Gortsos, Christos V, ‘The Evolution of Monetary Policy in the Euro Area since the Outbreak of the Pandemic Crisis’ (2022) 34(1) European Review of Public Law_ _Abstract: The present study contains a brief presentation and analysis of the legal framework governing the single monetary policy in the euro area amidst the current pandemic crisis. After the General Introduction in Section A, it reviews the developments relating to the implementation of the single monetary policy since the outbreak of the pandemic, discussing, inter alia, the pandemic emergency longer-term refinancing operations (PELTROs), the Pandemic Emergency Purchase Programme (PEPP) and the amendments introduced to other APPs (Section B). Section C deals with the new (2021) monetary policy strategy of the European Central Bank (ECB) and the developments in relation to the ECB and the interbank interest rates (including the euro short-term rate (€STR)). Finally, Section D sets out some considerations relating to the impact of monetary policy on financial stability.
Grogan, Joelle, ‘COVID-19, Rule of Law and Democracy: Analysis of Legal Responses to a Global Health Crisis’ (RECONNECT Working Paper No 11.5, 2022) 24 Abstract: Building on the wealth of research published in the ‘Power and the COVID-19 Pandemic’ symposium, which analysed the impact of the pandemic on legal systems in 64 countries, including 26 EU Member States,7 this working paper provides a preliminary analysis on how the global health crisis has affected the state of democracy and the rule of law. While the specific examples are drawn from across the globe to highlight common trends and concerns, specific highlight is given to the EU and its Member States and the actions they took over the course of the first 18 months of pandemic.
Grogan, Joelle and Alice Donald, ‘Policy Paper on the Implications of COVID-19: Insights into State Governance and the Rule of Law, Human Rights and Good Governance during the COVID-19 Pandemic’ (RECONNECT project, European Commission, 30 January 2022) Abstract: This paper outlines the key findings of our research on the impact of the COVID-19 pandemic on law and legal systems throughout the world from the perspective of the rule of law, democracy and human rights. It highlights challenges to pre-existing assumptions about state performance during conditions of a health crisis, and puts forward recommendations based on what can be identified as positive practices both within the European Union (EU) and beyond it. The research is based on the RECONNECT supported ‘Power and the COVID-19 Pandemic’ Symposium,1 which published comparative analyses on the impact of the pandemic - and government responses to it - on the legal systems in 64 countries worldwide, including 26 EU Member States, and it also draws from further bodies of research to support these findings. This paper provides a preliminary analysis on how the global health crisis has affected the state of democracy and the rule of law. While the findings are drawn from a global study, specific highlight and focus in the formulation of this paper was given to EU Member States and the actions they took over the course of the first 18 months of pandemic.2 The key findings and policy-oriented recommendations for post-pandemic measures and processes are applicable in a global setting, but are, again, targeted for particular relevance to EU Member States.
del Guayo Castiella, Iñigo and Miguel A Marmolejo Cervantes, ‘The Recovery of the Energy Sector after the COVID-19 Pandemic: A Comparison between Latin America and the European Union’ (2022) 40(2) Journal of Energy & Natural Resources Law 165–181 Abstract: There are no recovery plans in Latin America to face the economic consequences of COVID-19. The European Union passed a Recovery Plan for Europe which will reactivate the European economy in a modern and sustainable manner. Once Latin America recovers from the COVID-19 pandemic, it will likely return to the same green-climate policies that existed pre COVID-19. This is exemplified by Mexico’s energy policy, which prioritises fossil fuels and hampers economic competition in the energy industry. The Recovery Plan for Europe promotes a green recovery, including the creation of a more environmentally friendly energy sector.
Guild, Elspeth, ‘Covid-19 Using Border Controls to Fight a Pandemic? Reflections From the European Union’ (2020) 2 Frontiers in Human Dynamics Article 606299 Abstract: When Covid-19 was acknowledged to have arrived in Europe in February-March 2020, politicians and public health authorities scrabbled to find appropriate and effective responses to the challenges. The EU obligation contained in Article 9 Treaty on the Functioning of the European Union (TFEU) requiring the EU (including the Member States to achieve a common protection on human health, however, seems to have been missing from the responses. Instead, borders and their control became a site of substantial political debate across Europe as a possible venue for effective measures to limit the spread of the pandemic. While the most invasive Covid-19 measures have been within EU states, lockdown, closure of businesses etc, the cross-border aspects (limitations on cross border movement) have been important. In the European Union this had important consequences for EU law on border controls, in particular free movement of persons and the absence of controls among Schengen states. While EU law distinguishes between Schengen borders where no control takes place on persons, non-Schengen EU borders, where controls take place but are limited to identity checks and border controls with third countries and external borders with third countries (non EFTA or Swiss) the responses of many Member States and the EU institutions abandoned many aspects of these distinctions. Indeed, the difference between border controls between states (inside Schengen, the EU, EFTA or outside) and internal restrictions on movement became increasingly blurred. Two approaches – public health and public policy – were applied simultaneously and not always in ways which were mutually coherent, or in any way consistent with the Article 9 TFEU commitment. While the public health approach to movement of persons is based on ensuring identification of those in need of treatment or possibly carrying the disease, providing treatment as quickly as possible or quarantine, the public policy approach is based on refusing entry to persons who are a risk irrespective of what that may mean in terms of propagating the pandemic in neighbouring states or states of origin.
Hosseini, Mina, ‘The Evolution of EU Competition Law and Policy in the Pharmaceutical Sector: Long-Lasting Impacts of a Pandemic’ (2024) Journal of Antitrust Enforcement (advance article, published online 4 July 2024) Abstract: This article investigates the evolution of the European Union (EU) competition law and policy enforcement in the pharmaceuticals sector, focusing on the impact of the coronavirus disease 2019 (COVID-19) crisis as a turning point. Before COVID-19, EU competition authorities’ goals and priorities focused on pay-for-delay agreements between originators and generic pharmaceutical undertakings. During COVID-19, the European Commission developed soft laws (such as temporary frameworks and comfort letters) enabling undertakings to cooperate to increase access to essential health products and COVID-19 vaccines. In the post-pandemic era, initiatives like the Pharmaceutical Strategy for Europe, the Single Market Emergency Instrument (SMEI), the Health Emergency Response Authority (HERA), the compulsory licensing proposal and the upcoming changes in the pharmaceutical regulations reflect a patient-centred approach and diverse agenda. This article underscores the move towards a more inclusive EU competition law and policy framework in the pharmaceutical sector as part of this evolution.
Ivan, Angela S, ‘Convergent and Divergent Legal Trends in Addressing the Coronavirus Pandemic at the EU Level’ (2021) 14(63) Bulletin of the Transilvania University of Braşov. Series VII: Social Sciences and Law 37–42 Abstract: The greatest humanitarian crisis of the 21st century, triggered by the pandemic emergence and spread of the Covid-19 coronavirus, has caused all European Union States to identify and apply rapid solutions to limit and stop this humanitarian disaster. The ways approached by each Member State in achieving this desideratum were different depending on the potential of assistance and endowment of the hospitals but also on the legal and legislative measures applied. The different percentages of the level of vaccination of the population that vary from state to state show how important is the unitary approach of information measures, strategic organization but also the convergent legislative correlation at the European Union level in stopping this scourge. The percentage of vaccination has proved to be closely linked to saving lives, a conclusion which leads to the need to address a convergent strategy across EU Member States on the measures needed to achieve the highest possible percentage of vaccination at the level of all EU Member States to stop this virus and return to normality.
Jaminola, Leonardo M, ‘Painting The Town Green: The Potential of Environmental Diplomacy to Strengthen ASEAN-EU Relations in the Post-Pandemic World’ (SSRN Scholarly Paper No ID 4053710, 20 October 2021) Abstract: The European Union (EU) is one of the oldest dialogue partners of the Association of Southeast Asian Nations (ASEAN). Relations between the two blocs began in 1972 and were initially focused on trade and investments. Over the years, ASEAN-EU relations expanded and developed to include economic, cultural, and political matters. In 2020, relations between the two have been upgraded into a strategic partnership solidifying the commitment of both parties to cooperate on various key areas. Recently, environmental and climate issues have also been emphasised by the two groups, leading to the establishment of the High-Level Dialogue on Environment and Climate Change in 2019. The ongoing COVID-19 pandemic, which has caused unprecedented social, economic, and political disruptions, is widely regarded as having a zoonotic origin. As such, the pandemic has extensively been framed as an environmental issue and has concretised the transnational effects of environmental degradation. Using the theoretical framework of neoliberal institutionalism, the article posits that the pandemic will reinvigorate environmental diplomacy between states in the post-pandemic world, particularly between ASEAN and the EU. The article furthermore analyses the concept of environmental diplomacy and historicises the relationship between these two intergovernmental organisations.
Klinowski, Mateusz and Karolina Szafarowicz, ‘Digitisation and Sharing of Collections: Museum Practices and Copyright During the COVID-19 Pandemic’ (2023) 36(5) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 1991–2019 Abstract: This article concerns the conflict between copyright and museums’ digitisation and online sharing of collections. This issue has recently become particularly important in connection with the COVID-19 pandemic. The authors outline the concept of a virtual museum and present the most important copyright provisions in EU law that may create obstacles for cultural institutions in realising virtual counterparts. To perceive copyright as the main obstacle in the process of digitisation and online sharing of collections is not unusual. Hence, the article briefly presents legal framework of the European copyright applicable to such situations. The authors argue that although copyright offers a range of possibilities for museums interested in digitising their collections, at the same time it is responsible for a chilling effect, resulting in fear of potential infringement and liability. The authors conclude that the EU’s development of new legislation, coinciding with the need for digitisation and online sharing of cultural heritage caused by the pandemic, has favoured public interest at the expense of creators’ rights, but still lacks satisfactory legal tools for effectively allowing cultural institutions to digitise and share their collections.
Kosinska, Anna Magdalena, ‘Has the CJEU Made the First Step to Put a Stop to the Criminalisation of Migration? Commentary to the Judgement in the Case of JZ in the Context of COVID-19 Pandemic Commentary’ (2021) 26(6) Bialystok Legal Studies / Bialostockie Studia Prawnicze 207–224 Abstract: The paper presents a critical discussion of the CJEU judgment in the JZ case (C 806/18), in which the Court interpreted Article 11 of Directive 2008/115 that regulates entry ban issuance. The author asks a question of whether an entry ban as a measure limiting the right to free movement has a moral and legal ground in international law and EU law. Moreover, the author focuses on the problem of the criminalisation of irregular migration – both in the context of the established line of the Court’s case law and in the case of a vague national law standard that penalizes illegal stays – the possibility to apply the criminal law concept of error in law and thus exclusion of criminal liability of an illegal migrant. Th e judgment fi ts within the human rights discourse on the elimination of the criminalisation of irregular migration. It is worth noting that this is the fi rst CJEU judgment on this phenomenon issued during the COVID-19 pandemic. Given the current social situation, it gains particular signifi cance. Prisons are not safe places during the pandemic, and it is diffi cult to fi nd arguments for risking the health and lives of third-country nationals, especially where they do not fully realize the nature of the prohibited act committed since they do not know criminal law regulations of the host country. All the more so, since in the light of the Union’s law, an eff ective return is to be a priority with regard to such persons. Th e problem of eff ectiveness of the criminalisation of migration, in the light of the return policy, gains special importance in the time of the COVID-19 pandemic80 – in my opinion the coronavirus epidemic should encourage eff ective implementation of returns rather than placement of migrants in prisons, which, unfortunately, are oft en overcrowded and facilitate transmission of the virus.
Kubenov, Gizat et al, ‘Protection of Privacy in Information Technologies in the Context of COVID-19: A Comparative Legal Analysis of the Republic of Kazakhstan and the European Union’ [2023] 2023/1 Rivista Di Studi Sulla Sostenibilita 63–89 Abstract: Today, the world community faces the arduous and responsible task of preventing the spread of the coronavirus disease COVID-19, which objectively requires the adoption of a complex of anti-epidemic (organizational, medical, administrative, and other) measures to prevent the spread of COVID-19 and to contain and eliminate this epidemic. At the same time, to a large extent, such measures are embodied in various forms of restrictions on the realization of civil, political, and other rights, freedoms, and legitimate interests of a person and a citizen, as well as to a certain extent there are encroachments on the inviolability of a person’s private life. The purpose of the scientific article is to study the state mechanisms of Kazakhstan and the European Union on legal support and security of personal data on the Internet, particularly during the COVID-19 pandemic, and to determine possible ways for their development and improvement. The research used dialectical, historical-legal, formal-logical, comparative-legal, and special-legal research methods, and systemic-structural research methods, as well as the method of systemic analysis. The theoretical significance of the study lies in the fact that it develops new scientific provisions, proposals, and recommendations that deepen the theoretical and practical foundations in the field of legal regulation of personal da-ta protection in information technologies during the pandemic in the European Un-ion in general and in the Republic of Kazakhstan in particular.
Lexchin, Joel et al, ‘Regulators, Pivotal Clinical Trials, and Drug Regulation in the Age of COVID-19’ (2021) 51(1) International Journal of Health Services 5–13 Abstract: Medicine regulators rely on pivotal clinical trials to make decisions about approving a new drug, but little is known about how they judge whether pivotal trials justify the approval of new drugs. We explore this issue by looking at the positions of 3 major regulators: the European Medicines Agency, Food and Drug Administration, and Health Canada. Here we report their views and the implications of those views for the approval process. On various points, the 3 regulators are ambiguous, consistent, and demonstrate flexibility. The range of views may well reflect different regulatory cultures. Although clinical trial information from pivotal trials is becoming more available, regulators are still reluctant to provide detailed information about how that information is interpreted. As medicines and vaccines come up for approval for treatment of COVID-19, transparency in how pivotal trials are interpreted will be critical in determining how these treatments should be used.
Mason, Stephen, ‘Has the COVID-19 Pandemic Changed Travel Law Forever?’ (2023) ERA Forum (advance article, published online 21 June 2023) Abstract: The author lists the key questions which the COVID-19 Pandemic has posed for travel law and asks how the courts have to date dealt with them, whether existing EU legislation remains fit for purpose, and what changes might be made.
McCarthy, Jonathan, ‘The Legacy of COVID-19 Financial Supports: (1) Judging the Effects of the Pandemic-Era Measures’ (2024) 39(9) Journal of International Banking Law & Regulation 295–301 Abstract: As the first of two articles for the Journal of International Banking Law and Regulation, this article considers the immediate effects of financial support measures implemented during the COVID-19 pandemic. The article describes the initial purposes of the assistance, explains the distinct phases of financial supports, and questions how the ‘success’, or efficacy, of the measures can be quantified.
Medina, Laila, ‘Judicial Protection and the Role of the Courts in the Pandemic: Perspectives from the European Court of Justice’ in Paola Iamiceli and Fabrizio Cafaggi (eds), COVID19 Litigation: The Role of National and International Courts in Global Health Crisis (Università degli Studi di Trento, 2024) 77 *[OPEN ACCESS BOOK]* Chapter summary: 1. Health emergency and democracy. 2. Pandemic and challenges to the Court’s administration of justice. 3. COVID-19 pandemic relevant EU case-law. 3.1. COVID-19 pandemic, «force majeure» and derogation from secondary EU law. 3.2. COVID-19 pandemic and impact on rights of package travellers. 4. Concluding remarks.
Montero-Pascual, Juan J, Matthias Finger and Teodora Serafimova, ‘Short- and Mid-Term Covid-19 Effects on the Aviation Sector : A Competition Law Perspective’ (European University Institute, Florence School of Regulation, RSC Policy Brief No 2022/08, European University Institute, 2022) Abstract: On 19th March 2020, the European Commission adopted a Temporary Framework for State Aid measures, which is based on Article 107(3)(b)TFEU and complements other possibilities available to Member States to mitigate the social-economic impact of the COVID-19 outbreak in line with EU State aid rules, notably the possibility under Article 107(2)b TFEU to compensate specific companies or specific sectors for the damages directly caused by exceptional occurrences, such as the pandemic. The 17th Florence Air Forum, co-organised by the Florence School of Regulation’s Transport Area together with the Commission’s DG Competition, examined the hard impact of COVID-19 on the air sector while exploring possible ways forward to ensure its recovery. More specifically, it sought to analyse whether special needs exist in the short- and mid-term period, until the Aviation Guidelines are reviewed. Drawing on the policy debates, this brief explores investment aid and support to green investments for airports and airlines with a view to meeting the European Green Deal objectives. Furthermore, the brief looks at operating aid to regional airports, which have been particularly heavily hit by the crisis, and more specifically discusses how long these regional airports might need public support. Another aspect examined here concerns air connectivity, which constitutes an essential component of the European Single Market, as it can foster cross-border trade, promote economic growth and European integration. The pandemic’s impact on the sector has raised concerns about a substantial loss of air connectivity. In view of this, the brief reflects on the need to adopt a temporary set of rules in the short-term to restore connectivity after the COVID-19 outbreak and to adjust existing rules on start-up aid in the mid- and long-term. Last but not least, this policy brief delves into the timely topic of remedies in mergers. A new round of consolidation in the industry can be expected as a result of the financial difficulties of many airlines. In order to protect competition, effective remedies will have to be identified.
Mulder, Jule, ‘Remote Working, Working from Home, and EU Sex Discrimination Law’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 276–294 Abstract: The chapter discusses how EU sex discrimination law can respond to new work-life arrangements that are emerging due to the worldwide pandemic and put significant emphasis on flexibility and working from home. While flexible remote work arrangements can help carers to organize their work responsibilities around (unpaid) care responsibilities, such working arrangements can also carry significant disadvantages, as workers with care responsibilities have to renegotiate their private arrangements to accommodate work. For example, the creation of reasonable workspaces and time at home may seriously interfere with the way families’ private lives are organized and the absence from the workplace may mean that workers miss out on opportunities for progression and career development. Given that care responsibilities remain gendered across the EU and women are more likely to belong to the poorer parts of society or to be single parents, it is likely that these additional burdens fall on women more significantly than men. Against this background, the chapter considers remote work arrangements in the light of EU non-discrimination law. First, it evaluates how (indirect) sex discrimination law can facilitate access to and enjoyment of this new workplace organization and protect workers from disadvantages associated with them. Specially, it discusses how disadvantages within the private sphere can be considered under the scope of disadvantages recognized under the concept of indirect sex discrimination, as the Court of Justice of the European Union has often separated the public and private sphere. Secondly, it analyses to what degree employers indeed need to accommodate the enjoyment of such work rearrangements.
Muraviov, Victor, ‘Rule of Law Concept and Its Development by the EU Constitutional Justice’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 73–83 Abstract: The article is devoted to the complex analysis of the notion of the rule of law and its development in preambles or other general provisions of European constitutions. The authors underline that the rule of law constitutes a fundamental and common European standard to guide and constrain the exercise of democratic power. Rule of law is a fundamental principle of constitutionalism. The special attention is paid to the issues and problems related to the definition of elements of the rule of law. It is proved that the concept of rule of law includes accessibility of the law; questions of legal right should be normally decided by law; equality before the law; power must be exercised lawfully and reasonably; human rights must be protected; means must be provided to resolve disputes without undue cost or delay; trials must be fair; compliance by the state with its obligations in international law as well as in national law should be provided. In this respect, the author determines two main dimensions of the rule of law at the EU level: the internal dimension of the European Union and Member States and the external dimension of this concept.
Nawrot, Oktawian, Justyna Nawrot and Valeri Vachev, ‘The Right to Healthcare during the Covid-19 Pandemic under the European Convention on Human Rights’ [2022] The International Journal of Human Rights (advance article, published online 31 January 2022) Abstract: The article presents the challenges exposed by the COVID-19 pandemic from a European perspective, especially its consequences in light of the European Convention on Human Rights’ (ECHR) guarantees of the right to health. It is the first attempt to comprehensively examine these challenges for the State Parties of the ECHR. The right to health has traditionally been included in the second generation of human rights; therefore, presumably, it does not in itself give rise to any specific rights for an individual. However, the European Court on Human Rights (ECtHR) has recently been linking the right to health with specific provisions of the European Convention on Human Rights, in particular with Articles 2, 3, and 8. We analyse the Court’s relevant rulings and their possible consequences for the assessment of the actions taken by the States Parties in order to fight COVID-19, with special emphasis on possible State responsibility for violating the Convention. This can happen when the State’s actions result in different levels of health care access available to different groups of patients (patients with COVID-19 and patients with other conditions). The analysis reveals the weakness of the approach taken by ECtHR in the face of the COVID-19 pandemic.Summary: 1. Introduction; 2. Health care and the fight against covid-19 in light of the ECHR; 2.1. Article 2 of the ECHR; 2.2. Article 3 of the ECHR; 2.3. Article 8 of the ECHR 3. The convention and the ‘herd immunity’ strategy; 4. The fight against covid-19; dancing on a minefield; 5. Concluding remarks
Olajos, Istvan and Szilárd Pálfay, ‘Integration of the Crisis Rules Created by Covid 19 Into the European Common Agricultural Policy and Hungarian Agricultural Legislation’ (2024) 3(1) International Journal of Law in Changing World 105–119 Abstract: After the end of the COVID 19 outbreak, the authors summarise the measures taken by the European Union to ensure the continuity of food supply and the functioning of the food chain during the outbreak. In addition to the EU measures, the specific measures followed by the Member States and their room for manoeuvre are presented using the Hungarian example.
Onţanu, Elena Alina, ‘The Digitalisation of European Union Procedures: A New Impetus Following a Time of Prolonged Crisis’ (2023) 5(1) Law, Technology and Humans 93–110 Abstract: The COVID-19 pandemic temporarily brought national and cross-border procedures to a standstill. Prior to the pandemic, the use of information and communication technology in court procedures was mostly voluntary and seldom used; although various developments were contemplated, they were slow to be financed and implemented. The pandemic and associated limitations gave digitalisation of procedures, including at the European Union (EU) level, a new impetus and increased authorities’ and professionals’ openness towards technology, including in cross-border judicial cooperation. The measures adopted at the time of writing focus on aspects such as communication between competent national authorities in taking of evidence and service of documents. These are expected to soon be extended to all other EU private international law instruments. In cross-border claims, e-CODEX will be the decentralised information technology system used in this process of facilitating access to justice with digital support. The aim is for identification and certifications of e-signatures and e-identities in this digital environment to be based on the eIDAS Regulation. While all these are welcome developments for facilitating and speeding up access to justice, this paper points out that the process still requires some years for its full implementation and may be exposed to various risks, complexities and challenges. Consequently, the process will not put an end to the EU fragmentation but will work around national and EU realities.
Passalacqua, Virginia and Lorenzo Grossio, ‘Migrants’ Equal Access to Social Benefits under EU Law: Fragmentation and Exclusion during the Covid-19 Crisis in Italy’ (2023) 19(3) Utrecht Law Review 57–72 Abstract: This paper uses the case of Italy during the Covid-19 pandemic to critically assess the EU legal framework on third-country national migrants’ equal access to social benefits. In Italy, migrants are structurally excluded from core social protections, a situation that during the pandemic led to a worsening of existing patterns of inequality; migrants have been more exposed than citizens to poverty, unemployment, and destitution. The first part of the paper looks for the EU legal root of this situation: it examines the EU legal framework in the migration field, showing that it is affected by fragmentation and inconsistencies. These problems become even more acute at the national level, where the Italian legislature mis-transposed the EU migration directives, thus affecting the use of discretionary clauses therein and severely curtailing migrants’ equal treatment rights. Then, the second part of the paper asks whether adopting a mainstreaming approach to enhance equality could improve the situation of migrants. The paper argues that equality mainstreaming in the migration field shows good potential, while also encountering some structural limits. Therefore, it can hardly be considered a silver bullet against the problem of migrants’ discrimination.
Pollicino, Oreste, Giovanni De Gregorio and Laura Somaini, ‘The European Regulatory Conundrum to Face the Rise and Amplification of False Content Online’ (2020) 19(1) The Global Community Yearbook of International Law and Jurisprudence 319 Abstract: In the last couple of years, the dissemination of false content online has raised serious concerns worldwide. As a result, states have attempted to tackle disinformation in different ways. Regulating disinformation requires solving the following dilemma: How and to what extent can we regulate (false) speech? It is not by chance that democratic and authoritarian countries have followed different regulatory paths in this field. The social media landscape has contributed to increasing the complexity in the fight against disinformation. The pandemic has then amplified the challenges coming from the spread of false content. This work aims to outline anti-disinformation trends in Europe. By focusing on Europe as one of the most interesting areas of the world to analyse regulatory attempts concerning disinformation, the primary goal of this work is to provide a nuanced approach in this field, going beyond the mere description of supranational and legislative regulation and looking at the European regulatory framework under a multilevel constitutional perspective.
Popotas, Costas, ‘COVID-19 and the Courts. The Case of the Court of Justice of the European Union (CJEU)’ (2021) 12(2) International Journal for Court Administration Article 4 Abstract: COVID-19 has put forth the value of proactive and good Court administration. The Court of Justice of the European Union (CJEU) ensures the uniform interpretation and application of the European Union law. It is a complex supranational organisation, and its workings involve 24 languages. Shifting from risk management to crisis management is an arduous task in such an environment. Nevertheless, based on previous experiences and alerts, the Court took advantage of the established crisis management plans to counter the Covid-19 pandemic. This article aims to offer insights into how the Court manifested its preparedness, remained resilient and managed the crisis by enhancing its contingency plans, using its teleworking experience, benefiting from a modernised IT infrastructure, and applying its procedural rules intelligently. It will also examine how the Court envisages consolidating the judicial and administrative changes in the future.
Power, Vincent, ‘COVID-19 / Coronavirus and European Union Shipping Law: An Interim Analysis’ (2020) 26(1) Journal of International Maritime Law 14–31 Abstract: This article seeks to assess how the European Union has responded so far to the COVID-19/ Coronavirus Crisis in terms of various aspects of EU shipping law. It begins with a short overview of the general EU response to the crisis so as to set the context and then considers the various issues thematically including issues of health, repatriation, state aid, passenger rights, restrictions on travel and movement, the shipment of waste and port charges.
Raposo, Vera Lúcia, ‘Pigs Don’t Fly and You Cannot Expect Absolutely Safe COVID-19 Vaccines (But You Should Expect a Fair Compensation)’ (2021) 28(2) European Journal of Health Law 165–183 Abstract: This paper focuses on the COVID-19 vaccines authorised for use in the European Union, and explores the mechanisms in place to control vaccine safety and to compensate injured patients, mainly in the context of European law. Based on these considerations, the paper concludes that the refusal by some potential vaccinees to take the vaccine based on safety concerns is ungrounded and an indication of unrealistic expectations, but that in order to build public trust proper compensation mechanisms should be in place.
de Ruijter, A et al, ‘EU Solidarity and Policy in Fighting Infectious Diseases: State of Play, Obstacles, Citizen Preferences and Ways Forward’ (Amsterdam Centre for European Studies Research Paper No 2020/06, 4 April 2020) Abstract: In this paper we confront the role the EU traditionally plays in the domain of health with the urgent need for collective action triggered by the corona virus pandemic. In the face of such a crisis, we argue that the joint procurement, stockpiling and allocation of medical countermeasures is a key component of true European solidarity, besides maintaining the integrity of the Single Market. We present the first results of a survey experiment taken before the current crisis on citizens’ attitudes towards centralizing at the EU level of policies to combat infectious diseases, which indicates considerable support. We conclude that a more robust policy framework with substantial centralization of procurement, stockpiling and allocation is warranted.
Schweigl, Johan, ‘ECB’s Pandemic Emergency Purchase Programme from Legal Perspective’ in Nadia Mansour and Lorenzo M. Bujosa Vadell (eds), Finance, Law, and the Crisis of COVID-19: An Interdisciplinary Perspective (Springer, 2022) 61–75 Abstract: Following the unconventional monetary policy tools of the last decade, ECB introduced a special monetary policy response to the COVID 19 pandemic, which occurred as a global challenge in early 2020. Aside from the measures aimed at providing ample liquidity, such as the targeted longer-term refinancing operations (TLTROs) and the pandemic emergency longer-term refinancing operations (PELTROs), collateral easing and the ongoing asset purchase programme (APP), ECB designed a special non-standard monetary policy measure, the Pandemic emergency purchase programme (PEPP). This new programme is of temporary nature and targets both private and public securities. Given the fact that some of the previous ECB’s unconventional programmes (OMT, PSPP) were challenged before the Court of Justice of the EU, one can expect the PEPP to be subject to judicial review as well. In this chapter, the author focused on the legal aspects of the PEPP. He outlined the core requirements arising from EU primary law and from the CJEU case law and considered compliance of PEPP with the EU law.
Svitlychnyy, Olexander P et al, ‘Electronic Justice as a Mechanism for Ensuring the Right of Access to Justice in a Pandemic: The Experience of Ukraine and the EU’ (2023) 37(3) International Review of Law, Computers & Technology 325–340 Abstract: The article analyzes the measures implemented by countries in the field of access and administration of justice, focusing on the use of electronic justice as a comprehensive remote mechanism during the COVID-19 pandemic. The study examines the experiences of the European Union and Ukraine to understand the effectiveness of electronic justice in ensuring the right of access to justice. Various scientific methods such as legal-statistical, systematic, formal-legal, and cybernetic methods were employed in the study. The analysis reveals that the measures taken by countries to prevent restrictions on human rights in the judicial system are not perfect and require further development. The study identifies key issues in the practical implementation of electronic justice and provides specific recommendations for improvement. The research fills a gap in comprehensive scientific studies on continuous and effective consideration of court cases during the pandemic. The practical and scientific value of the article lies in its relevance to practitioners and scholars worldwide, who are interested in the realization of the right of access to justice and the functioning of electronic justice. The national experiences and recommendations presented in the article can also be applied by European countries to enhance the effectiveness of their electronic justice systems.
Tambou, Olivia and Alexia Pato, ‘COVID-19 Vaccination and Data Protection Issues: A European Comparative Study With Focuses on France, Germany, Belgium, and Switzerland’ (MPILux Research Paper No 2021(3), 4 March 2021) Abstract: This report, which tackles data protection issues related to Covid-19 vaccinations, completes the study on vaccination policies carried out by the Max Planck Institute Luxembourg upon the request, and for the benefit of, the Ministry of Health of Luxembourg. The first part of this research project analyses the safeguard measures and guarantees put in place for the processing of data related to Covid-19 vaccinations in the EU. The general framework on data protection, i.e. the GDPR, is examined and relevant references to the law of the Council of Europe and the main recommendations at the European level are made. The purpose of this first part is to assess what EU Member States should do and what room for manoeuvre is left to those for the processing of data generated as a result of the Covid-19 vaccinations. The second part of the research project consists in a comparative analysis of the data protection laws in the area of public health in France, Belgium, Germany and Switzerland with specific references to Covid-19 vaccinations. The purpose of this second part is to understand and compare the approach taken in the selected States.
Tesche, Tobias, ‘The European Union’s Response to the Coronavirus Emergency: An Early Assessment’ (LSE ‘Europe in Question’ Discussion Paper Series No 157, 11 June 2020) Abstract: This article provides an assessment of the EU institutions’ response to the coronavirus pandemic. It contends that it followed the new intergovernmental tendency to empower de novo bodies like the European Stability Mechanism, the European Investment Bank and the European Central Bank. The European Central Bank’s early and unconstrained action structured European politics. Its pandemic emergency purchase programme ensured that euro area member states were able to maintain market access and lowered the financial attractiveness of the subsequently created instruments to tackle the corona crisis. The European Commission was relegated to the role of ‘cheerleader of European solidarity’. It partially redeemed itself by creating a new temporary loan-based instrument to support national short-term work schemes and by proposing a large-scale recovery instrument termed ‘Next Generation EU’.
Trotogott, Rachel, ‘A Comparative Analysis of Data Privacy Impacted by Covid-19 Contact Tracing in the European Union, the United States, and Israel: Sacrificing Civil Liberties for a Public Health Emergency’ (2020) 27(1) ILSA Journal of International & Comparative Law 55–76 Abstract: The purpose for choosing this topic is to explore privacy issues being faced in distinct parts of the world by countries exploring the use of digital contact tracing phone applications to help gain control over the COVID-19 global pandemic. First, this article will provide a brief history of the United States, the European Union, and Israel, and explore the applicable privacy laws governing its corresponding citizens in relation to the usage of digital contact tracing applications. Then, this article will compare the similarities and differences between such laws, and how the United States, the European Union, and Israel are addressing such laws relative to digital contact tracing application usage. Finally, this article will conclude with an assessment on the current contact tracing situation in the United States and what can be learned by looking towards the European Union and Israel.
van Erp, Sjef, ‘COVID-19 Apps, Corona Vaccination Apps and Data “Ownership”’ (SSRN Scholarly Paper No ID 4038139, 27 March 2021) Abstract: Already before the present COVID-19 health crisis an emerging trend could be seen towards offering health services from a distance, called ‘e-health’. This trend, like so many other developments towards digitalisation of our societies, received a considerable impetus because of the COVID-19 crisis. First, the rise of COVID-19 tracing (and/or tracking) apps and now to be followed by the advance of Corona vaccination apps has made us aware of the benefits which e-health may bring, particularly in a situation where distance means safety. The apps contain very personal information and, consequently, have provoked questions as to whether the apps sufficiently protect a person’s right to privacy and data protection as safeguarded by the EU’s General Data Protection Regulation. The nature of the data, however, is such that also questions as to the importance of access by public health authorities in the public interest can be asked. Also, although commercial, but still important for developing and producing vaccines, for the pharmaceutical industry the data are important. The result is a conflict particularly between entitlement to privacy protection and the general interest, causing questions to be asked about which interest has priority. It might very well be, however, that this question, asked as such, is beside the point. Given that data are non-rivalrous and non-depletable, because they can be copied and copied, questions about which entitlement has priority cannot be answered in absolute terms. Rights regarding data depend upon who at a particular time has control over the data, who else has control and what control between all those involved then means. Looking at who has which right to data one can see an entitlement paradigm surfacing which is multi-perspective, relative and dynamic. Calling data entitlement ‘ownership’ is not a reference to ownership in the traditional sense of the word, but to management. To decide what management in a particular situation means interest balancing exercises must be made. These exercises will change over time, as accordingly will the answer to the question who is ‘owner’ of data in COVID-19 and Corona vaccination apps.
Von Batten, Karl, ‘The Effects of Multiple Delayed National Regulatory Actions on the Number of COVID-19 Infections in the European Union and the United Kingdom’ (SSRN Scholarly Paper No ID 3625365, 10 June 2020) Abstract: There is a noticeable difference in the amount of time it took European Union (EU) member states and the United Kingdom (UK) to enact nationwide stay-at-home orders and mandatory face mask provisions in response to the COVID-19 pandemic. Some EU member states enacted nationwide stay-at-home orders and mandatory face mask provisions shortly after the first confirmed case of COVID-19 infection within their respective jurisdiction. In contrast, other EU member states and the UK took much longer to initiate similar regulatory measures. This study’s findings indicate that there is a statistically significant difference in the number of COVID-19 infections between these two groups of countries, with a higher number of COVID-19 infections in the group of countries that took longer to enact nationwide stay-at-home orders and mandatory face mask provisions. This study’s findings also show a moderate positive correlation between the number of confirmed COVID-19 infections and the lag time between the first confirmed COVID-19 infections and the issuance of nationwide stay-at-home orders and mandatory face mask provisions, respectively. The results also show a very strong positive correlation between the number of confirmed COVID-19 infections and the number of COVID-19 infection tests. A Stepwise multiple regression analysis was performed, in place of Poisson regression, due to a failure to fit. The regression results indicate that confirmed COVID-19 infections increased by 0.0454 infections each test performed, decreased by -60,017 because of mandatory face mask provisions, and increased by 1,141 each day of lag time between the first confirmed COVID-19 infections and the issuance of mandatory nationwide face mask provisions.
Yaroshenko, Oleg M et al, ‘Current Problems of Legal Regulation of Remote Work in the Context of the Introduction of Restrictive Measures Caused by the Spread of Covid-19 in Ukraine and the EU’ (2022) 1(34) Relações Internacionais no Mundo Atual 1–16 Abstract: The COVID-19 coronavirus pandemic, which has spread to all countries of the world, has posed new challenges in terms of legal, socio-economic, political, and social development. The pandemic produced a need for a mechanism of legal regulation of a special organization of the remote work, working hours, workplace, working conditions, etc. The study aims to analyze and compare the legal regulation of remote work under the introduction of restrictive measures caused by the spread of COVID-19 in Ukraine and the EU. The leading method was the method of comparative analysis. It helped to compare the specifics of the practice of EU member states in the field of legal regulation of remote work under the above conditions in Ukraine and the EU, identify how these issues are regulated in other EU countries. In Ukraine, it is necessary to improve the rules for regulating the responsibilities of the employer to compensate for the costs of a remote worker, enshrining in law the obligation of the employer to provide the employee with computer equipment, means of communication. The experience of European countries proves it is necessary to implement ‘right to disconnect’ in Ukraine. Information and knowledge gained from the experience of different EU countries can be used as a basis for the adaptation and development of new relevant provisions in Ukraine.
Zalar, Boštjan, ‘Public Health and Fundamental Rights Between Old and New Vulnerabilities: Is a Conciliation Possible?’ in Paola Iamiceli and Fabrizio Cafaggi (eds), COVID19 Litigation: The Role of National and International Courts in Global Health Crisis (Università degli Studi di Trento, 2024) 93 *[OPEN ACCESS BOOK]* Chapter summary: 1. Introduction. 2. Approach of the General Court of the EU. 3. Approach of the Court of Justice of the EU. 4. Approach of the European Court of Human Rights.
Zhavoronkov, Vladimir and Matthias Middell, ‘European Transport Strategy: Legal Improvement and New Challenges’ (SSRN Scholarly Paper No 4115559, 14 March 2022) Abstract: On 9 December 2020, the European Commission presented its new mobility strategy, charting a course for shipping and the rest of the EU transport sector out of the COVID-19 crisis. As explained, the Sustainable and Smart Mobility Strategy lays the foundation for how the EU transport system can achieve its green and digital transformation and become more resilient to future crises. As outlined in the European Green Deal, the result will be a 90% cut in emissions by 2050, delivered by a ‘smart, competitive, safe, accessible and affordable transport system’.
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