Europa quo vadis in times of COVID-19?
The European Union is remarkably absent as a coordinating and operational force in the current COVID-19 crisis. Why can't Europe coordinate the healthcare emergency caused by COVID-19? The reason for this is hidden deep into the roots of the European Union. We want Europe 'ma non troppo' and then we blame Europe for not being capable to act.
Is there a way to create a European public and personal healthcare ecosystem, serving our European patients and our healthcare workers in a time of this COVID-19 crisis and beyond? Not within the limited framework of the Treaty on the Functioning of the European Union (TFEU, aka The Treaty of Rome) and the Treaty on European Union (The Maastricht Treaty). According to Article 168(7) of the 'Treaty on the Functioning of the European Union', Member States are responsible for the definition of their health policy and for the organization and delivery of health services and medical care.
The EU can only adopt health legislation within the limitations of the 'Treaty on the Functioning of the European Union', which is Article 168 (protection of public health), Article 114 (approximation of laws) and Article 153 (social policy). Article 35 of the EU Charter of Fundamental Rights proclaims 'Everyone has the right of access to preventive healthcare and the right to benefit from medical treatment under the conditions established by national laws and practices'. Principle 16 of the European Pillar of Social Rights says 'Everyone has the right to timely access to affordable, preventive and curative healthcare of good quality'.
The EU only has a supportive competence in healthcare and exclusive and shared competences in other policy areas regulating health determinants which affect health (prevention). The principle of conferral (Articles 4 and 5 TEU) and subsidiarity (Article 5 TEU) make it impossible for the European Union to develop a consistent, effective and efficient healthcare policy and a healthcare framework on a European scale. Article 14 (eHealth) of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients' rights in cross-border healthcare, does not deal with the fundamental issue of European healthcare ecosystem fragmentation. European level initiatives cannot be founded on a non-existent legal European healthcare framework, but have to rely on a workaround based on free movement and the creation of an internal market. It is an example of political and legal creativity or as Alain de Lille once wrote: "Sed quia auctoritas cereum habet nasum, id est diversum potest flecti sensum, rationibus roborandum est" (De Fide Catholica: Contra Haereticos, Valdenses, Iudaeous et Paganos, Alain de Lille, Book 4, Ch. 30).
The EU can only extend the right of individuals to seek healthcare services cross-borders, but cannot create a European healthcare ecosystem which solves the fragmentation of European healthcare policies (E. Mossialos, 2010, p. 12). The 'Decision No 1082/2013/EU' of the European Union on serious cross-border threats to health, does not solve the problem that the EU must respect member states' autonomy in operating their own health systems even in case of global or Pan-European emergencies. European territorial and functional healthcare fragmentation stifles the development of a European healthcare architecture and process innovation. As Mark Eyskens once criticized the EU's incapability of going beyond a trade area, Europe can't become a healthcare giant within the boundaries of the European treaties. Europe lacks the political tools to untie the Gordian Knot of European healthcare.
