The measures taken during the COVID-19 pandemic have shed light on the role that multiple legal instruments play during such events, whether at the international, regional-European, or national levels. Countries all over the world have been confronted with the pandemic's impact on all aspects of their societies and faced the corresponding challenge of responding within the aegis of their respective legal systems. While the need for international coordination to fight the pandemic increased, a variety of legal issues have also arisen distinctly depending on the national setting. Among others, the adoption of restrictive public health measures, such as individual or community-level quarantines, depends on the public law framework of any given country. Particularly, the distribution of powers in the field of healthcare and public health plays a crucial role in determining which institutions will make specific decisions and on what legal basis.
Due to these circumstances, pandemic decision-making has been subject to fragmentation both at the international and at the national level. Fragmented decision-making processes can be both enablers of, and obstacles to, effective pandemic responses. In several cases, such processes failed to respond to the sheer scale of the COVID-19 pandemic and the need for uniform interventions across different states. In others, the fragmented approach offered flexible and targeted solutions without jeopardising effectiveness and coherence.
To assess this phenomenon, a multilevel and comparative analysis is needed in different areas of the law relevant during the COVID-19 pandemic. For instance, the federal or regional organisation of a state has an impact on the uniformity of its decision-making. And the way in which a nation regulates and promotes innovation will impact the emergence of medical technologies that can respond to the spread of the disease. Moreover, ethical concerns about the tragic choices that are associated with the allocation of scarce resources will have to be dealt with by each jurisdiction. Crucial to the analysis is a reflection on the difference between decision-making in ordinary times and in times of emergency.
Addressing these noteworthy issues, legal scholars from both the Max Planck Institute for Social Law and Social Policy in Munich as well as the Max Planck Institute for Comparative Public Law and International Law in Heidelberg have been brought together by the Max Planck Law Network under whose umbrella the project was founded. In December 2020, an online workshop took place in which the participating scholars discussed the aim and scope of the project. Each proposed contribution was presented and extensively discussed with the two directors, Prof. Dr. Ulrich Becker and Prof. Dr. Armin von Bogdandy.
The outcome of the project was published as an open access special issue in the European Journal of Health Law (Volume 29 (2022): Issue 1). Researchers from the Max Planck Institute for Social Law and Social Policy authored four of the seven articles, in addition to the editorial introduction written by Irene Domenici together with Pedro Villarreal.
In German State Aid for COVID-19 Medicinal Products: A Risk for Solidarity in the European Union, Kristine Plank addressed the challenges for European solidarity when national-level health policies financially support pharmaceutical companies. As health-related competencies are mainly devolved to Member States, countries with a higher Gross Domestic Product may gain preferential access when procuring life-saving medicines. However, this risks undermining the solidarity across Member States, which is vital when facing common health threats. Transferring more competencies in the field of health to the European Union could be a way of preventing self-defeating pandemic responses by national governments.
Lauren Tonti, in Symphony or Cacophony? Orchestrating Federal Mechanics toward COVID-19 Response in the United States and Germany, argued that government structure influences public health responses by providing the channels through which pandemic mitigation measures are routed. While pandemics pose a particular challenge to divided structures, division does not necessarily mean disaster. Indeed, pandemic control occurs through the channels of fragmented governance in federal countries such as Germany and the United States. An evidence-informed approach shows how federal systems can facilitate future pandemic responses.
Irene Domenici and Franciska Engeser adopted a comparative approach to ‘tragic choices’ regarding the allocation of scarce intensive care resources during the COVID-19 pandemic in their article The Institutional Tragedy of Pandemic Triage Regulation in Italy and Germany. Faced with ‘tragic choices’, both Italy and Germany have reacted with extremely fragmented decisions, involving individual hospitals, medical associations and ethics councils. The contribution calls for a stronger participation of the legislature in the decision-making process, as it is its role to protect fundamental rights and establish democratically legitimised normative frameworks. Central legislative intervention prevents fragmentation and thus uncertainty and discrimination.
Finally, the contribution by Christian Günther, Legal vs Extra-Legal Responses to Public Health Emergencies, challenges the claim that emergency responses through law are impossible or else doomed to be ineffective. It inquires the pandemic response of many European states through the lens of Lon Fuller’s theory of law. The article demonstrates that the fragmentation of governance between ordinary legal action and emergency extra-legal action is neither necessary nor desirable. Ultimately, there are particular reasons for liberal legal societies to avoid the separation between legal and extra-legal action, as this division affects established values that contribute to the success of public health responses. Formal legal principles, as expressed in Fuller's theory, are not simply constraining, but constitute a "liberating limitation" that enables effective, sustainable pandemic response.
