Davide Genini (Dublin City University)
On 10 September 2024, the DCU Brexit Institute hosted the Horizon Europe REGROUP and Jean Monnet Post Brexit Law module event titled “Legal & Constitutional Perspectives on the Covid-19 Pandemic”. As Full Professor and Founding Director of the Brexit Institute and DELI, Federico Fabbrini, noted, this event was particularly timely given the recent declaration of Mpox as a public health emergency of international concern by the World Health Organization (WHO).
The principal investigator of REGROUP, Professor Pier Domenico Tortola pointed out that the project emerged from the urgent need to reflect on the future of global governance and the policies of the European Union (EU) from a multi-disciplinary perspective, with the Covid-19 pandemic representing the culmination of a decade of crises: the financial crisis, the migration crisis, Brexit, and now a security crisis. In this context, REGROUP ultimately aims to advise the EU on how to address its post-pandemic policy and institutional challenges, analysing the economic, societal, and legal impacts of the pandemic on the EU’s unique multi-level governance system.
Dr Wojciech Burek followed up by illustrating the hard cases of Hungary and Poland during the pandemic crisis. Both countries, known for their populist and Eurosceptic semi-autocratic regimes, exploited the Covid-19 outbreak to consolidate the power of the ruling parties – Fidesz, led by Viktor Orbán in Hungary, and Law and Justice (PiS), led by Jarosław Kaczyński in Poland. They used the pandemic as a pretext to centralise authority and dismantle rule-of-law safeguards, accelerating the drift towards illiberal democracy. In both cases, the imposition of emergency laws, initially justified by public health concerns, became a tool for implementing illiberal reforms, curtailing media freedom, and restricting civil liberties. However, the trajectory differed between the two. Hungary entered a state of permanent emergency following the war in Ukraine, allowing the government to rule by decree without checks. In contrast, Poland’s governance was partially counterbalanced by the opposition-controlled Senate, independent media, and a resilient civil society.
In view of this, Dr Niels Kirst highlighted six legal best practices that the EU and its Member States should prioritise in order to respond effectively to future crises while preserving the EU’s constitutional-liberal democracy. First, governments must ensure transparency and accountability to maintain public trust during emergencies. Second, emergency measures should be proportionate to the threats faced and should not unduly restrict fundamental rights. Third, the judiciary must uphold fundamental rights and freedoms even in emergency situations. Fourth, Member States should update and strengthen domestic health legislation to enhance preparedness. Fifth, the EU should foster better intergovernmental coordination to minimise vertical conflicts of competence. Finally, the EU should promote international collaboration to address pandemics more effectively.
Against this backdrop, Judge Lars Bay Larsen, Vice President of the European Court of Justice (ECJ), reflected on the impact of Covid-19 on the Court’s operations and its approach to the difficult cases brought during the pandemic. The outbreak had immediate effects on how the ECJ functioned. After initial hesitation among Member States, it soon became evident that the pandemic was global, necessitating coordinated action. The ECJ quickly transitioned to remote operations, reducing social contacts while adapting to the new emergency circumstances. Judge Larsen noted that Member States’ lack of preparedness hindered their ability to respond effectively to the crisis, drawing parallels with the current challenges in the defense sector. He pointed out that states struggle to manage health crises due to limited financial resources, yet remain resistant to transferring more competences to the EU in the health domain. For this reason, he advocated for a new Intergovernmental Conference on Treaty changes to encourage Member States to reconsider the current distribution of competences. Several Covid-19-related cases were brought before the ECJ, including challenges to the European Commission’s vaccine acquisitions, restrictions on access to the European Parliament, and claims regarding the use of state aid to mitigate the economic impact of the pandemic. However, both the General Court and the ECJ consistently dismissed these cases. The ECJ refrained from introducing initiatives specifically targeting the pandemic, as such decisions fall under the executive powers of the Member States. Nonetheless, the Court acknowledged that Member States prioritised restrictive measures, such as limiting the free movement of people, to prevent their health systems from collapsing. The event concluded with a discussion on the future legal challenges the EU and Member States might face as they continue to adapt to the post-pandemic world
Davide Genini is a PhD candidate in EU law at Dublin City University specialising in European security law.
The views expressed in this blog post are the position of the author and not necessarily those of the Brexit Institute blog.