Questions of striking a balance between health (whether public health or healthcare) and market rules predominate a range of literature, with the obvious focus on the internal market and competition rules from an EU perspective. The experience of the COVID-19 pandemic provides a distinctive dimension to these considerations, and this panel encompasses pre- and post-pandemic considerations. Guy and Velvyte examine the recent balancing of health and market via, respectively, the function of solidarity within patient mobility and citizenship rules, and the EU competition policy trigger requirement for an “economic activity”. Cambien and Hervey and Marcin’s papers draw more from the experience of responding to COVID-19.

Guy develops work examining solidarity in the EU competition law context to consider how solidarity functions at the nexus of national and EU levels in connection not only with patient mobility, but also recent case law in the EU citizenship context (Re A and VI), and distinctions between public and private health insurance.

Velyvyte engages with the perennial question of whether public healthcare is an economic activity in the context of internal market law and the determining effect this has on how free movement and competition law governs Member State healthcare systems. Velyvyte argues that the Court of Justice’s approach both in competition law (notably the recent Casa Regina Apostolorum case) and free movement cases has been wrong and more balance between internal market goals and protecting national regulatory autonomy is needed.

Cambien’s paper considers the restrictions to free movement of persons and their compliance (or not) with the long-standing justification of public health as a legitimate reason of public interest, suggesting a clearer articulation of the criteria used in this balancing act, as well as a re-examination of enforcement in view of the different institutional actors involved.

Hervey and Michalak explore the EU’s legal approaches to balancing market-related individual rights with public health needs during the COVID-19 pandemic with a focus on border management. They examine recent case law via the lens of balancing national public health measures and market freedoms.

One of the key aspects of the EU internal market is the free movement of persons. Restrictions of this freedom are only allowed if they are justified by legitimate reasons of public interest (e.g. public health), do not go further than necessary and comply with a strict procedural requirements. During the COVID-19 pandemic, unprecedented restrictions to the free movement of persons came in place which, arguably, not always complied with these conditions. Moreover, the EU institutions did not systematically enforce the applicable procedures. Strikingly, the legal framework and institutional practice have remained virtually unchanged until this day. This situation threatens a number of fundamental principles and values of the EU legal order, including the principle of equal treatment and several fundamental rights. My paper explores how to “cure” this problematic situation. On the one hand, it examines gaps in the current legislative framework and proposes a clearer articulation of the criteria on which the balancing between free movement rights and public health concerns should be based. In this context, recent legislative initiatives and recent ECJ case law are critically assessed. On the other hand, a fresh look is proposed at the different institutional actors involved and their respective duties in the sphere of public health. This part contains proposals that aim to achieve a better and more informed enforcement of the said criteria. The underlying idea is that the EU should learn from the past crisis to better prepare itself should a future public health crisis arrive on its shores.

This article explores the European Union's (EU) legal approaches to balancing market-related individual rights with public health needs during the COVID-19 pandemic, focusing on border management within the EU’s Internal Market. The EU Commission's response, characterized by 'effective border management', involved 'restrictive selection' or 'selective mobility', facilitating the movement of 'essential workers' in critical sectors like health and food while limiting general human mobility to control the virus spread. The article examines the legal complexities of these measures in light of the EU's commitment to free movement. It analyzes the intersection of pandemic responses, such as travel restrictions and quarantine protocols, with internal market principles and individual freedoms, within the broader EU legal framework. This includes assessing how EU law manages the balance between national public health measures and market freedoms. Key to this discussion is the evolving jurisprudence of the Court of Justice of the EU, exemplified by cases like NORDIC INFO (C-128/22). The ruling confirms that national pandemic measures, when aligned with EU law's conditions and safeguards, do not constitute violations. This case law underscores Member States' discretion in public health protection, but it also embodies respect for the EU’s shared competence in health law, emphasizing the need for proportionate, non-discriminatory measures that respect fundamental rights.

This paper critically examines the approach of the CJEU (or the Court) to the question of whether public healthcare is an economic activity in the context of EU internal market law. It is an important question because it determines the extent to which EU free movement and competition law governs the healthcare systems of the Member States, which in turn has implications for the organisation and management of those systems and the shape of any new healthcare system reforms. In the recent Casa Regina judgment, the Court has essentially ruled that healthcare provided by entities operating within a public healthcare system – one governed by the principles of solidarity and universal access – is not an economic activity for the purposes of EU competition and State aid law. By contrast, in the free movement case law, it holds a long- established, opposite approach: healthcare is an economic activity, even where it is provided in the framework of a public healthcare system. The paper argues that the Court’s approach is wrong in both the free movement and competition law contexts because it is skewed disproportionately towards either the goals of the internal market (in the free movement context) or concerns about the protection of national regulatory autonomy in the healthcare sector (in the competition law context). A better judicial approach would balance between the goals of the internal market, on the one hand, and the protection of national regulatory autonomy, on the other, without undermining either.