COVID-19危機與歐盟衛生法

COVID-19 Crisis and EU Health Law

歐盟有無衛生法，在1990年代中期仍有爭議。時至今日，多數看法已不再質疑歐盟衛生法是否存在，討論轉而聚焦於歐盟衛生法的範圍與內涵為何，本文目的即爲探討歐盟衛生法的範圍與法律框架。首先運用歷史研究法，依時序對歐盟衛生法此一法領域的形成過程進行研究，包括過去發展及今日所及範圍。其次介紹歐盟面對新冠疫情的危機處理方式，涵蓋透過公衛協調合作及危機處理機制、內部市場權限、財政治理框架而為之措施，並分析其對歐盟衛生法範圍的影響，同時闡述歐盟在經歷數波新冠疫情後就協助成員國強化公衛系統所提出之佈局與策略。接著針對歐盟衛生法發展迄今之內涵與結構可能隱含的問題作評析，包括間接立法衍生的隱憂，及強化歐盟專門機構問責制度之必要性。最後對本文研究議題作總結，並展望後疫情時代歐盟衛生法可能的發展趨勢。

In the mid-1990s, it was still controversial as to whether the notion of‘EU health law’existed or not. Very few people would nowadays dispute that‘EU health law’is a meaningful concept. Late studies turn the discussion to the scope of those entities. In this article, the author tries to identify the scope and framework of‘EU health law’. The article will review the historical emergence and development of the‘EU health law’as a distinctive body of law firstly. The following analyses how the EU’s health law and the tools have been utilized in response to the COVID-19 outbreak, mainly through encouraging cooperation between the member states in the sphere of public health based on the article 168 TFEU, civil protection mechanism, internal market competence and fiscal governance framework such as European Semester. It also describes the proposed changes to EU health policy for the coronavirus recovery phase. The following figures out the dark side of the‘EU health law’. One problem is that the indirect legislation, which means the EU has adopted many harmonizing measures in health law and policy based on the competence in other policy areas, principally internal market. Another issue is the accountability of European Agencies. European Agencies play an active and effective role in crisis management and public health governance in the EU. Many of them exercise a de facto decision-making power. This raises problems relating to legitimacy and accountability. This article demonstrates the structure of European Agencies and takes EMA as an example to clarify their problematic aspects. It then tries to present a more rational accountability framework for European Agencies in order to better balance accountability with independence and effectiveness. Finally, it outlines directions of future development of EU health law. It is commonly agreed that EU health law grows through crisis. Another transboundary public health crisis could prompt valuable steps.