Balázs SZABÓ: COVID-19: Introduction to the administration law competences problem-set
The COVID-19 pandemic quickly consumed the whole world, so the European Union – as a global player – and the Member States – as sovereigns – had to take immediate action to protect their citizens and their role in the geopolitics and global economy. The pandemic management revealed some previously hidden or partial questions regarding the share of competences between the EU and the Member States.
I assume everyone agrees that both the citizens' lives and the economy shall be protected from the effects of the pandemic. The big question here, is the how. As economic issues generally belong to the EU and the Member States' shared competences due to the need for the proper functioning of the single market, the economic crisis management is fulfilled in many levels. There are competition law issues falling under exclusive EU competence, the application of which were (and are) terminated during extraordinary times. There are also crisis-management activities done on the regional level in the form of intergovernmental actions. Last but not least, there were and are several measures ordered and executed by the Member States on a national level.
Unlike competition issues, the governance of the healthcare sector and the coordination of social policy-making belong to the powers of the Member States as a main rule. Therefore, the pandemic – as a healthcare crisis – “awakens” national powers, while the economic consequences thereof touch upon shared and exclusive competences. The complex matrix of competences and powers result in a bureaucratic problem-set that did not fasten the actors' reaction time.
Thus, the reason behind multilevel problem-solving is, on the one hand, the share of competences that do not enable the EU to act in all measures, and on the other hand, is that there are tasks that could be more effectively managed on a national or regional level than on a supranational level. Crisis management requires fast and adequate problem-solving, reacting promptly, and sharing knowledge, resources, and practices on the grounds of solidarity and loyal cooperation. Besides crisis management, actions for gaining resilience, encouraging the economy to regenerate are needed.
EU-level crisis management
The EU-level crisis management suffers from the above-mentioned problem set of multilevel governance. Within the frames of the current legislative environment, the EU's steps are mainly reactive and supportive instead of being proactive. This does not mean as a straight consequence that proactivity is a primer characteristic to the Member States. However, the opportunity of being proactive is mainly given to the MSs as they own those powers that are necessary to act promptly.
Generally, the Council of the European Union (Council) is responsible for monitoring the situation and may only take action within the frames of the integrated political crisis response mechanism (IPCR). The IPCR is the EU framework for the coordination of cross-sectoral crises at the highest political level. It is mainly an information-sharing mode, however, it has different levels depending on the crisis level. Considering the changing situation and the different sectors affected by the COVID-19, the Croatian Presidency escalated the IPCR mechanism's activation to full mode on 2 March 2020. The IPCR is still operating in full mode. The mechanism supports rapid and coordinated decision-making at EU political level. Through this mechanism, the Council's Presidency coordinates the crisis's political response by bringing together the EU institutions, the affected Member States (in COVID-19 times, all MSs are affected), and other key actors. However, as mentioned above, the ICPR is an information sharing mode including several tools to achieve the flow of information among the Member States and the EU. These tools include an informal roundtable, a crisis meeting chaired by the Presidency with key actors (representatives of the Commission, the European External Action Service, the EU agencies, the affected Member States, the European Council's cabinet President, experts, etc.). In addition to the roundtable, the provision of analytical reports of the situation for decision-makers, a web platform to exchange and collect information, and a 24/7 contact point to ensure constant liaison with key actors is ensured.
Following the emergence of the pandemic, as a reaction to several needs, the European Union has adopted several temporary measures in several areas, such as competition (enabling state aid to national actors), research incentives, termination of Schengen acquis related to border controls and so on, mostlyin order to mitigate the consequences. A significant part of these measures is temporary (e.g., the deadlines for collecting signatures to European Citizens' Initiatives (ECI)) and has been temporarily extended by legislative measures. The transitional measures function is to mitigate the effects of the coronavirus and help both the Member States and the citizens in recovering.
Arising from the general issues of powers mentioned above, an additional difficulty in epidemiological crisis management is that the EU does not have autonomous legislative powers in healthcare and social policy. Thus, it had to coordinate, assist, and support the health measures that fall within the Member States competence so that each Member State planned to deal with the epidemic with a different health care system, with altering levels of preparedness and capacity, economic background, and resolution mechanism. These circumstances sometimes differ within one Member State. Therefore some regional solutions are considered more effective than supranational steps.
Concerning healthcare management, social policy issues, and the social security systems, any possible interference with national competences may be sensitive. Member States address these issues as part of their “maintained sovereignty” as 9/2018 HCC decision concludes in section 30 of its Reasoning. As long as the guiding principle here is subsidiarity, the situation will not change. There may be a ground for discussion about the healthcare and social services issues in the frames of Union-level conference-series on the future of the EU. However, these may cover only vis maior (force majeure) situations and not a general transfer of competence. The reason behind is the Member States' differing economic development levels where social standardisation may lead to unexpected consequences. However, under extraordinary circumstances, the need for cooperation and active solidarity – including all forms of that – is warmly welcomed.
The consequences of the “Competences” problem-set
The analysis of the pandemic's health and economic effects and the development of responses have repeatedly raised the need for common competences, mainly by the European Parliament. However, common health and social issues management is not on the agenda of the European Council and of the Council of the EU. These issues are susceptible ones that need to be examined in a complex way, not isolated to particular policy areas or certain actors.
Placing health administration at the EU level would necessarily have a spill-over effect on social policies, social security, pensions, taxation, and employment, only to emphasize the most critical areas, which fall within the Member States' powers.
Thus, common regulation of health administration and social issues would be a step towards a federative Europe – the eternal dilemma between the Member States since the beginning of the integration.
The pandemic contributed to the rebirth of former dialogue on the directions of the integration. The old story of “Federation versus Confederation” with the emphasis on intergovernmentalism maintained.
At present, the political will of Hungary and the Central and Eastern European Member States is representing the concept of a 'Europe of Nations' arising from Charles de Gaulle compared to the concept of federal Europe. The answers of the pandemic and the need for its supranational treatment therefore vary from state to state.
COVID-19 taught us that a worldwide healthcare crisis does not respect national boundaries. It also showed that there is no unified, one-size-fits-all solution for the economic and healthcare issues present. States with no lockdowns and restrictions (e.g. Sweden) also face backlash such as those states that reacted more strictly to the pandemic.
Formerly and generally, common problems required brainstorming and – where it was possible – joint problem-solving. Recently, tackling coronavirus required governments to do everything in their power to protect their citizens – and not just from the virus. Besides the emerging problem of the COVID, the lack of hospital capacities, the increasing unemployment rates, the urgent need for vaccines and research for long-term solutions, the countries also faced some of the backward of the digitalisation, too. Especially concerning the free flow of disinformation.
Being a member state of the EU, European states were also softly forced to cooperate and act on the grounds of solidarity, which has no uniform definition; thus, every state understood different (re)actions under that. In general, it meant working together to help bring people through the pandemic and reach beyond their borders to play a part in supporting other countries. Some states sent masks and breathing machines to other states, while others sent healthcare workers, doctors, nurses to highly infected territories where human resources were lacking. Some countries transported patients to other states where the hospitals could care and cure them.
Among the Member States’ solutions, for example, the Swedish model focused on the economy's functioning, with minimal restrictions, and aimed at obtaining flock immunity as soon as possible. In other parts of Europe, e.g., in Central and Eastern Europe, individual states introduced seemingly drastic restrictions during March and April 2020; later more restrictions came in early 2021. These include border closures, travel restrictions, restrictions on entry into the country, remote operation of public educational institutions, and exit restrictions. To restrict the free movement of persons for public health reasons, we saw several and significantly different patterns in spring 2020, all of which helped slow down the virus's spread. Most of these measures are being applied again by states now, in March 2021.
Given its competences and the resulting opportunities, the European Union was primarily able to contribute to managing the pandemic's through acquiring equipment, research and medicine development, and the financial support of vaccines' development and apply some limitations to exports with regard to the needs of the MSs. The keyword in pandemic management has become solidarity, which, in my view, illustrates well the lack of Union-level competencies for problem-solving in this regard.
Positive consequences of the pandemic and lockdowns: the development of e-solutions and spread of their application
The virus situation has affected and continues to affect almost all sectors today, of course, not to the same extent. The use of (modern) technical devices (info-communication technology, ICT) has increased rapidly in the recent decades, as their demand is growing continually. It can be observed, that this change has helped to achieve more efficient and faster administrative administration, as the role of technology tools in public administration is becoming more and more important, especially nowadays, when the “space” of personal administration has decreased, due to the pandemic. We live our lives almost totally online, remotely (where possible), which forces us to use our ICT devices daily.
As a result of technological development, it is now easier and faster to carry out public service tasks. E- and m-government has brought about an infrastructural transformation that affects the organization, the technologies used, the procedures, and the content. The use of ICTs makes large-scale administration more efficient (both in time and resource use).
In my view, the pandemic has clearly shown how vulnerable we are. A series of sudden problems has shown how much the administration needs to improve and the potential for technical tools.
Indeed we have all experienced and are experiencing a complete change in our lives over a few months. Suddenly, the importance of atypical and remote solutions has increased. We can work remotely, in the home office, our children take part in distance learning, the role of our info-communication tools has perhaps surpassed all previous developments in that our work posed new challenges (to name just a few everyday examples: remote connections and costs, infrastructure).
The health crisis has – of course – caused a complete change in lifestyles not only at the level of individuals but also in the lives of public bodies and EU and international organizations. In this “apocalyptic” situation, technology provided almost instant solutions, which allowed for online deliberations and electronic voting thanks to a wide range of ICT tools. Of course, this has posed new challenges to institutional management, including technical and data security and cybersecurity. Some technological advances have been available for years, e.g., the opportunity for online conferences and meetings facilitating remote work, but until the pandemic was far, we did not apply them in our everyday lives. Still, the extraordinary and immediate transition has shed light on the importance of personal relationships, which a virtual presence cannot replace. The pandemic simultaneously revived the importance of technical means, highlighted the role of atypical solutions, and made everyone feel the painful nature of the lack of personal connections.
The regulatory environment is only slowly able to keep pace with these sudden changes, with plenty of transitional provisions to manage the crisis and the restitution of the changing medium internal. After the pandemic, we can conclude the pandemic's real results and outcome in different fields.
However, at this point, it could be said that ICT tools can serve a new dimension in new administrative tasks. Smartphones are the most common info-communication tools; their application is wide, even in Hungary's poorest regions. The development of m-solutions (e.g., applications) is not only an opportunity now, but essential.
The role of these mobile applications is also significant in pandemic follow-up to track the spread and analyse the symptoms and recovery data of the users. Testing and contact research are crucial to preventing the virus from spreading and conclude later cases. Concerning contact research, EU leaders discussed the Commission's initiative on interoperability between mobile applications and work on a common public health passenger identification form, which could similarly facilitate contact research. New dimensions of smart devices have emerged in the last few months, which will be permanent and remain with us even after the pandemic.
In addition to the many benefits of the application, there are of course, some threats regarding the misuse of personal and sensitive personal data. In cooperation with the Member States, the Commission, the European Data Protection Supervisor, and the European Data Protection Board have also drawn up guidelines for developing Covid-19 pandemic applications to support compliance with data protection rules. The applications must fully comply with EU data protection provisions.
Within this legal environment, a Hungarian application called 'Virus Radar' was developed. It shows whether the user has been proven to be infected with the COVID-19 or not. Another application, called 'Home Quarantine System' (HQR) has also been created. This allows authorities to continuously monitor patients' health status placed in-home quarantine and their compliance with quarantine rules without personal contact. These two Hungarian applications could be excellent examples of how the changed circumstances force more modern solutions in many administrative areas.
The problem set drafted in the introductory part remains open until the Member States’ intentions do not change regarding the share of competencies. The COVID-19 has shown us, that transnational crisis management cannot be solved without cooperation, flexibility and mutual solidarity. The other aspects – such as the modernisation, development of public administration, etc. – couldonly be treated after the main competence issues are solved.
Balázs SZABÓ PhD is an assistant professor at the University of Miskolc (Hungary), Institute of State Sciences. Since 2011, Balázs Szabó teaches public administrative law and e-government law. Balázs Szabó obtained his PhD degree in 2020 with summa cum laude, the topic of his dissertation is the technical and technological modernisation of the Hungarian public administration system in the first two decades of the 21 century. His current research topic is the usage of ICT tools – mainly smart-phone applications and drones in the practice of special public administration. Since 2014, Balázs Szabó is a member of the editorial board of the ,,Currentul Juridic” Scientific Journal. Since 2019, Balázs Szabó studies economics at the University of Miskolc.
Besides his academic career, Balázs Szabó is the Chairman of the Supervisory Board both of the B.A.Z. County Territorial Organization of the National Hunting Chamber and the Regional Association of Hunters and Game Managers of Northern Hungary and the member of the assembly of delegates of their national organizations.