The European Union's responses to the COVID-19 crisis: How to fight a pandemic with the internal market
| Author | Tomi Tuominen,Mirva Salminen,Kirsi-Maria Halonen |
| DOI | http://doi.org/10.1177/1023263X221130182 |
| Published date | 01 August 2022 |
| Date | 01 August 2022 |
| Subject Matter | Articles |
The European Union’s
responses to the COVID-19
crisis: How to fight a pandemic
with the internal market
Tomi Tuominen * Mirva Salminen**
and Kirsi-Maria Halonen *
Abstract
In a liberalized market economy, states tend to purchase supplies required for producing publicly
funded services, such as healthcare, from the markets instead of producing them themselves. The
availability of critical supplies thus becomes a question of supply-side availability and supply chain
management, and therefore their availability is conceptualized in terms of security of supply. The
European Union’s security of supply policy has focused on energy and security and defence.
Security has primarily been sought from the markets, while the purpose of EU law has been to
establish these markets and to guarantee their functioning. During the COVID-19 pandemic
the European Union has sought to secure the availability of medical supplies by relying on a variety
of internal market measures: free movement law, State aid law, competition law and public pro-
curement law have all been used in this effort. Collectively these measures have aimed at securing
the functioning of the markets and thus the availability of necessary supplies. Following the crisis,
the European Union is now adopting a broader policy perspective to security of supply. However,
this is still carried out mainly through internal market competences and by relying on the markets
as the source of security.
Keywords
Security of supply, internal market, crisis, COVID-19, competence, legal base
*
University of Lapland, Rovaniemi, Finland
**
UiT –The Arctic University of Norway
Corresponding author:
Tomi Tuominen, Faculty of Law, University of Lapland, P.O. Box 122, FI-96101 Rovaniemi, Finland.
E-mail: tomi.tuominen@ulapland.fi
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(4) 451–467
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X221130182
maastrichtjournal.sagepub.com
1. Introduction
Once the severity of the COVID-19 pandemic became apparent to everyone, states rushed to
acquire necessary medical supplies such as personal protective equipment (PPE), respirators and
vaccines from wherever possible.
1
Supply chain management, procurement rules and related
issues instantly rose to the main headlines of all major news outlets.
2
Although the term as such
was not used that often, what the states were worried about was the security of supply of
medical products that are critical when fighting a pandemic. In a liberalized market economy, sup-
plies that are necessary for the production of publicly funded services are usually acquired through
the markets instead of produced by the state. This goes both for services provided directly by the
state and for services that the state has outsourced to private companies. The availability of critical
supplies thus becomes a question of supply-side availability (and supply chain management), and
therefore the issue is conceptualized in terms of security of supply.
3
Even though healthcare is
largely based on public funding and healthcare services are provided by public bodies, producing
such services still requires medical supplies, which the state procures through the markets. Security
of supply concerns are thus central during such a crisis as the COVID-19 pandemic.
The COVID-19 pandemic has received considerable attention in both public debates and aca-
demic discussions. This is for sure due to the severity of the crisis and the unprecedented nature of the
responses that states around the world have resorted to in their attempts to manage the crisis. The preferable
way to tackle the pandemic and the adequacy of the actions already taken have been studied extensively
over the past three years. Most of the European legal scholarship on the pandemic has focused on sector
specific issues and has taken place in specialist legal journals devoted to, for example, the regulation of
health,
4
public procurement,
5
State aid
6
or economic assistance to the Member States.
7
However, an
1. See e.g. Reuters,‘Exclusive: EU States Need 10 Times More Coronavirus Equipment –Internal Document’, 25 March
2020; EUobserver,‘EU Fighting Shortages and Faulty Medical Supplies’, 2 April 2020.
2. See e.g. Financial Times,‘Supply Chains Need Some Love During the Coronavirus Pandemic’, 8 April 2020;
Bloomberg News,‘Battered and Bruised, Supply Chains Shift to Recover-and-Survive Mode’, 26 April 2020.
3. On the definition of security of supply, see C. Egenhofer et al., ‘Market-Based Options for Security of Energy Supply’,
Fondazione Eni Enrico Mattei (2004), Nota Di Lavoro 117.2004, https://www.ceps.eu/download/publication/?id=
4911&pdf=1114.pdf.
4. See e.g. A. Alemanno (ed.), Taming COVID-19 By Regulation, special issue, 11 European Journal of Risk Regulation
(2020), p. 187.
5. See e.g. A. Sanchez-Graells, ‘Procurement in the Time of COVID-19’,71Northern Ireland Legal Quarterly (2020),
p. 81; L. Farca and D. Dragos, ‘Resilience in Times Of Pandemic: Is the Public Procurement Legal Framework Fit
for Purpose?’,Transylvanian Review of Administrative Sciences (2020), p. 60; T. Kotsonis, ‘EU Procurement
Legislation in the Time of COVID-19: Fit for Purpose?’,19Public Procurement Law Review (2020), p. 199; A. La
Chimia, ‘Procuring for COVID-19: Housebound Reflections on a Procurement Earthquake’,19Public Procurement
Law Review (2020), p. 161; G.L. Albano, ‘Homo Homini Lupus: On the Consequences of Buyers’Miscoordination
in Emergency Procurement for the COVID-19 Crisis in Italy’,19Public Procurement Law Review (2020), p. 213.
6. See e.g. G. De Stefano, ‘Covid-19 and EU Competition Law: Bring the Informal Guidance On’,11Journal of European
Competition Law & Practice (2020), p. 121; C. Fumagalli, M. Motta and M. Peitz, ‘Which Role for State Aid and
Merger Control During and After the Covid Crisis?’,11Journal of European Competition Law & Practice (2020),
p. 294; P. Nicolaides, ‘Application of Article 107(2)(b) TFEU to Covid-19 Measures: State Aid to Make Good the
Damage Caused by an Exceptional Occurrence’,11Journal of European Competition Law & Practice (2020), p. 238.
7. See e.g. D. Busch, ‘Is the European Union Going to Help us Overcome the COVID-19 Crisis?’,15Capital Markets Law
Journal (2020), p. 347; T. Arnold, M. Gulati and U. Panizza, ‘How to Restructure Euro Area Sovereign Debt in the Era
of Covid-19’,15Capital Markets Law Journal (2020), p. 322; B. de Witte, ‘The European Union’s COVID-19
Recovery Plan: The Legal Engineering of an Economic Policy Shift’,58Common Market Law Review (2021), p. 635.
452 Maastricht Journal of European and Comparative Law 29(4)
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