By Dominique Mollet, LLM (PhD Candidate, European Commission, Joint Research Centre (JRC), Ispra, Italy, and University of Groningen, DOMINIQUE.mollet ec.europa.eu ; s.d.mollet rug.nl ), Dr. Elaine van Rijn (Scientific Officer, European Commission, Joint Research Centre (JRC), Ispra, Italy,, ELAINE.van-rijn ec.europa-.eu ) and Dr. Natalie Abrokwa (University of Groningen, natalie.abrokwa@rug.nl).

This is part I of a series of blog posts on the European Commission's Communication on a Comprehensive Approach to Mental Health . Part I discusses the content of the Communication and where mental health fits within EU law. Part II [NA1] reflects on the Communication from a right to mental health-perspective. The series is published in light of World Mental Health Day , 10 October 2023.

Good mental health is essential for people to live healthy and productive lives, and is more than the absence of mental disorder. The World Health Organization (WHO) defines mental health as “a state of mental well-being that enables people to cope with the stresses of life, to realize their abilities, to learn well and work well, and contribute to their communities”. ^[1] The burden of mental health problems in the European Union (EU) is very high, affecting tens of millions of Europeans every year. Across the EU countries, one in six people had a mental health problem in 2016. ^[2] In 2018, one in nine adults (11%) reported symptoms of psychological distress, with country averages ranging from 5% to 20% or over. ^[3] The COVID-19 pandemic and the related government containment measures have put additional stress on people. As the pandemic intensified and measures became more stringent, mental health worsened, particularly in young people (15-29 years old). ^[4]

The importance of good mental health has not gone unnoticed in the European Commission (EC). On 14 September 2022, President Ursula von der Leyen announced an upcoming initiative on mental health in her annual State of the Union (SOTEU) address. Responding to this, the EC launched a new Comprehensive Approach to Mental Health initiative on 7 June 2023, in the form of a Communication. The Communication is structured along three guiding principles, namely (1) having access to adequate and effective prevention; (2) having access to high quality and affordable mental healthcare and treatment; and (3) being able to reintegrate in society after recovery. ^[5] Concretely, it consists of eight priorities with 20 flagship initiatives. ^[6] A total of EUR 1.23 billion in EU funding has been allocated to finance activities promoting mental health, directly or indirectly, encouraging EU Member States to integrate mental health across all policies. ^[7] It focuses on promoting good mental health, as well as prevention and early intervention for mental health problems. ^[8] Emphasis is put on the mental health of children, young people and vulnerable populations. ^[9] Further priorities include tackling psychosocial risks at work, ^[10] mental health systems and access to treatment and care, ^[11] and breaking through stigma. ^[12] The Communication on mental health is a welcoming development addressing an important societal issue.

Mental health under EU law

According to the principle of conferral, as laid down in Article 5 of the Treaty on European Union (TEU), the EU can only act within the limits of the competences that the Member States have conferred upon it.[13] The so-called division of competences is laid out in Articles 3, 4 and 6 of the Treaty on the Functioning of the European Union (TFEU).[14] Article 3 TFEU indicates in which policy areas the EU has exclusive competences to harmonise (i.e., adopt harmonising legislation);[15] Article 4 TFEU lists the policy areas in which the EU and Member States share competences;[16] and, finally, Article 6 TFEU stipulates in which policy areas the Union has the competence to carry out actions to support, coordinate or supplement Member States’ efforts.[17]

The protection and improvement of human health, including mental health, falls under the latter competence.[18] Article 168 TFEU further explains public health’s position under EU law.[19] Article 168(1) TFEU states that the Union must ensure a high level of human health protection in the definition and implementation of policies and activities.[20] However, the concrete tasks assigned to the Union mainly consist of complementing domestic actions, encouraging cooperation between Member States, fostering cooperation with third States and adopting incentive measures that do not amount to harmonisation. ^[21] Article 168(5) TFEU provides that the Union may adopt incentive measures aiming to improve human health.[22]

It is important to add some nuance to the above, given that the EU has adopted policies related to the area of (public) health and non-communicable diseases, such as tobacco control.[23] Such legislation, however, has not been adopted on the basis of Article 168, namely health protection. Rather, it was adopted based on Article 114 TFEU, which offers the Union the competence to adopt legislation to further the internal market.[24] In a case challenging early European legislation on tobacco advertising, the General Court clarified that the adoption of EU measures related to public health are permissible, and that health protection is a decisive factor in the adoption of measures, as long as the conditions of Article 114 TFEU have been met. [25] The EU thus has limited legislative competences in the area of public health, including mental health. ^[26]

In light of above, the Commission has presented a Communication on mental health.  Communications are non-binding instruments under EU law through which the Commission can convey, among other things, concerns, clarifications of existing policies and guidance to the interpretation of policies. The text of the Communication clearly reflects the Commission’s purpose to support, coordinate or supplement domestic endeavours, for example by providing extra funds, a best practice portal and offering a forum for discussion and collaboration.

The role of a non-binding EU mental health instrument

One may question: why is a non-binding initiative relevant? The EU will not adopt new legislation improving the mental health of Europeans and Member States will not be mandated to adopt laws enhancing the right to mental health. However, in an area where the Commission’s competences are limited, it has a lot to offer: it can 1) provide normative guidance for Member States; 2) foster collaboration by offering a platform; 3) put mental health on the agenda; and 4) facilitate and encourage Member State actions in the policy area. ^[27] Another benefit of communicating through a non-binding instrument, such as a Communication, is that it increases flexibility and speed, as lesser consent is needed for its acceptance.

Having clarified questions regarding the institutional structure of European law in the policy area of mental health, Part II [NA2] of this series of blog posts reflects on the Communication substantively, from a right to mental health-perspective.

[1] World Health Organization, ‘World mental health report: transforming mental health for all’ (Geneva, 2022) Licence: CC BY-NC-SA 3.0 IGO.

[2] OECD/European Union, ‘Health at a Glance: Europe 2018: State of Health in the EU cycle’ (OECD Publishing, Paris, 2018) <https://doi.org/10.1787/health_glance_eur-2018-en>.

[3] OECD and European Union, ‘Health at a Glance: Europe 2020: State of Health in the EU Cycle (OECD Publishing, Paris, 2020) <https://doi.org/10.1787/82129230-en>.

[4] OECD/European Union, ‘Health at a Glance: Europe 2022: State of Health in the EU cycle (OECD Publishing, Paris, 2022) https://doi.org/10.1787/507433b0-en.

[5] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a comprehensive approach to mental health (Brussels, 7 June 2023) COM(2023) 298 final (hereinafter Communication) 1, 2.

[6] ibid, 1.

[7] ibid, 27.

[8] ibid, 5.

[9] ibid, 8-16.

[10] ibid, 16-19.

[11] ibid, 19-22.

[12] ibid, 22-23.

[13] Consolidated version of the Treaty on European Union [2012] OJ C326/13, Art. 5.

[14] Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326/47 (hereinafter TFEU), Arts. 3, 4 and 6.

[15] ibid, Art. 3

[16] ibid, Art. 4.

[17] ibid, Art. 6.

[18] ibid.

[19] ibid, Art. 168.

[20] ibid, Art. 168(1).

[21] ibid, Art. 168(1), (2), (3), (6) and (7).

[22] ibid, Art. 168(5).

[23] Directive 2003/33/EC on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products [2003] OJ L152/16; Directive 2014/40/EU on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products [2014] OJ L127/1 (hereinafter Tobacco Advertising Directive).

[24] Tobacco Advertising Directive, recitals.

[25] Note that this specific case concerned Article 114, but that this is also applicable in relation to other legal bases, Case C-376/98 Federal Republic of Germany v European Parliament and Council of the European Union [2000] ECR 2000 I-08419, para. 88.

[26] Areas in which a connection with mental health could exist would be data protection and privacy, and digital services.

[27] Largely inspired by the role of (non-binding) soft law in international and global health law, see S Sekalala and H Masud, ‘Soft Law Possibilities in Global Health Law’ (2021) 49 Journal of Law, Medicine and Ethics 152.

 [NA1]hyperlink to that blog post when publishing it on the GCHL blog

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