Bob Lyddon explains how the bureaucracy behind EU vaccinations lies on shaky legal ground, and the convenient bending of EU regulations and agreements.

Last week the EU was reported as preparing to use Article 122 of the Treaty on the Functioning of the European Union (the TFEU) to take measures to "ensure" vaccine supplies, or, put another way, to seize them, the means of their production, and the intellectual property needed to create them.

The EU now plan to make vaccine exports subject to authorisation under Article 5 (protective measures) of EU Regulation 2015/479. The situation has been shoehorned into constituting "a critical situation – arising on account of a shortage of essential products – where Union interests call for immediate intervention" in line with Article 5.1.

This development is concerning as it suggests the EU's stance is that they will always find a way to hang their plans on some enabling legal basis in an existing regulation or treaty, including in the TFEU. The EU's machinations betoken a mindset that the EU's own power under a treaty could and should be as wide as possible, a stance that reduces the power of the treaty partner. Such a disregard for restrictions imposed on it by treaty ought to be very worrying for its own Member States and for third countries dealing with the EU based on a treaty.

The EU casts around its library of legislation to find a regulation or treaty clause the wording of which is sufficiently elastic to justify its plans. In the case of a treaty between the Member States, the implication is that it lies within the EU's gift to define how the TFEU should be interpreted, when the TFEU was meant to set limits on the powers invested in the EU.

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The EU's change of approach on vaccines – to export controls – appears not to have been caused by problems with the legal basis for the previous approach, not when one has recourse to a supportive EU Legal Service. Any new plan can be found to have a legal basis in an existing regulation or treaty, given the availability of wording sufficiently wide that the plan can be shoehorned into it.

The precedent for the manipulation of TFEU Article 122 lies in the EU's EUR750 billion Coronavirus Recovery Fund. With a significant stretch, the EU Legal Service – in its Opinion 9062/20 of 24th June 2020 – confirmed that Article 122 was the legal basis for it, meaning the only basis in the TFEU that they could find.

The opinion stressed paragraph 1 of Article 122 which authorised the EU authorities to take "measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy". The opinion then argued away the significance of the qualifications implied by "the supply of certain products" or "energy", because they appeared in a phrase introduced by "in particular".

The stated objective of paragraph 2 was also waived away: to deal with "severe difficulties caused by natural disasters or exceptional occurrences beyond its [a Member State's] control". This phrase was held only to give an "indication on the sorts of exceptional circumstances that Article 122 as a whole is designed to address" and not to be definitive. It was deemed unworthy of any comment that paragraph 2 referred to "a Member State is in difficulties" – i.e., one Member State at a time.

The opinion thus stressed all the elements in Article 122 that vested powers in the EU and legitimised its actions, and dismissed or ignored the elements circumscribing those powers.

Treaty holders should beware.

38 votes

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