Regulatory Issues in the Management of the COVID-19 Pandemic. | Max-Planck-Institut für Sozialrecht und Sozialpolitik - MPISOC

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11.03.2022 / Sozialrecht EN

Regulatory Issues in the Management of the COVID-19 Pandemic.

The COVID-19 pandemic has brought the important role of legal instruments in a global health emergency to the fore, whether at the international, regional or national level. Five doctoral students from the Social Law Department of the Max Planck Institute for Social Law and Social Policy, together with scholars from the Max Planck Institute for Comparative Public Law and International Law, have investigated various aspects of regulatory problems in dealing with the pandemic as part of the project "The Fragmented Nature of Pandemic Decision-Making". Their findings were now published open access in several articles in the European Journal of Health Law.

In their paper " The Institutional Tragedy of Pandemic Triage Regulation in Italy and Germany", Irene Domenici and Franciska Engeser address the question of how to assess the legitimacy of triage decisions made by non-legislative bodies. In allocating scarce resources for intensive care during the current pandemic, both Italy and Germany exhibited an extremely fragmented decision-making structure, including hospitals, medical associations, and bodies such as ethics councils. The authors hold the opinion that in such a scenario, the legislator should play a key role in defining the normative framework for triage decisions to ensure the protection of fundamental rights and avoid discrimination. 

In her article "German State Aid for COVID-19 Medicinal Products: A Risk for Solidarity in the European Union", Kristine Plank takes a closer look at state subsidies to German companies involved in the development of COVID-19 vaccines and medicines. In particular, she examines their negative impact on solidarity across Member States in the European Union, which is precisely what is needed in the face of common health threats. Against this background, Plank argues in favour of transferring more competencies in the field of health to the EU.

In "Legal vs Extra-Legal Responses to Public Health Emergencies", Christian Günther examines the division made in regulatory decisions between ordinary, legal action and emergency extra-legal action. Drawing on Lon Fuller's theory of law, he argues that this fragmentation of governance is neither necessary nor desirable. This is because in liberal societies, the upholding of established values through the legal system contributes to the success of public health responses. For this particular reason, the separation between legal and extra-legal action should be avoided.

Regulatory problems in federal systems are addressed in Lauren Tonti's paper Symphony or Cacophony? Orchestrating Federal Mechanics toward COVID-19 Response in the United States & Germany". Using pandemic containment measures as a case study, she illustrates the division of authority between the federal and state governments in Germany and the United States and points out how federal systems can feature facilitators that unite and improve future pandemic responses.

By bringing together several legal approaches, the scientists would like to contribute to a more holistic management of future pandemics. The initiative arose within the framework of the "Max Planck Law" network.