Health Policy: A Cautionary Tale of Constitutional Slippage and Polity Building between Crisis and Nation Building

This chapter uses the COVID-19 crisis as a magnifying glass to uncover the dynamics of integration in the field of health. The pandemic was met with a stretching of competences along with informal tactics that illustrate how narrow formal confines call for creative workarounds. While crisis management may legitimately call for creativity, informality, and flexibility, this chapter asks whether a more fundamental instability was brought to the fore. The Treaties suggest that the European Union (EU) can deal with regulatory issues concerned with public health, while redistributive issues of healthcare are the responsibility of Member States. Not only is this division chimeric in practice, it also feeds the perilous impulse to mask moral and political acts of pooling of risk as Pareto efficient regulation. As the ambition to create a European Health Union gains momentum, so does the need to openly and explicitly acknowledge the considerations of justice and solidarity that inform rule-making. In line with this, the creative pathways that have driven integration by stealth will need to be transformed into a legally accountable and democratically responsible structure.