COVID-19: What is a "Proportionate Restriction" on the free movement of persons within the EU? Towards sanctions against member states maintaining disproportionate restrictions? by Philippe Vlaemminck

by Philippe Vlaemminck, Partner, Pharumlegal | Mar 5, 2021 | 

COVID-19: WHAT IS A “PROPORTIONATE RESTRICTION” ON THE FREE MOVEMENT OF PERSONS WITHIN THE EU? TOWARDS SANCTIONS AGAINST MEMBER STATES MAINTAINING DISPROPORTIONATE RESTRICTIONS?

As we pointed out in our article of 21 April 2020[1], the measures taken by the Member States to restrict the free movement of persons must be clear, coherent, non-discriminatory, and proportionate to the objective of protecting public health so that the European Union remains a united area, even in adversity.

Despite the numerus calls on Member States to respect the founding freedoms of the internal market[2], and the necessity to find the right balance between protection of public health and the free movement of person’s principle, travel within the EU continue to pose a particular challenge, especially for citizens without any specific status[3]

In fact, as highlighted in the study[4] published on 8 December 2020 by the Greens/EFA political group of the European Parliament and carried out by two law professors, the free movement of persons, the most emblematic fundamental freedom in the construction of Europe[5], has since the beginning of the health crisis been subject to persistent obstacles, which are not always necessarily clear or proportionate.

Although a further threat is posed by the appearance and the spread of virus variants, the institutions of the European Union keep recalling the importance of the proportionality of the national restrictions imposed on the exercise of fundamental freedoms and notably the free movement of persons (1).  Indeed, the border closures or blanket travel bans that are neither coordinated nor proportionate cause concern among professionals in the tourism sector as the summer is approaching, as they did last year (2).

  1. Latest Commission’s call on Member States to fully implement the Council Recommendation

Since the beginning of the health crisis, the various EU institutions have issued a number of documents, in accordance with the principle of conferral of powers, to promote coordination and cooperation between Member States and to limit the impact of national measures taken by Member States on the rights and freedoms enshrined in EU law[6].

In its latest recommendation the Council recalls that: “Any restrictions on the free movement of persons within the Union put in place to limit the spread of COVID-19 should be based on specific and limited public interest grounds, namely the protection of public health. It is necessary that such limitations are applied in accordance with the general principles of Union law, in particular proportionality and non-discrimination. Any measures taken should therefore not go beyond what is strictly necessary to safeguard public health[7]”.

At the end  of January 2021, the European Commission again invited Member States to fully implement the Recommendation and has adopted a communication entitled A united front to beat COVID-19”. The Commission states that “the backbone of the strong European response to the COVID pandemic has been unity and the preservation of the function of the Single Market. Even though the Commission considers that all non-essential travel should be strongly discouraged until the epidemiological situation has significantly improved it also recalls that border closures or blanket travel bans and suspension of flights, land transport and water crossings are not justified, as more targeted measures have sufficient impact and cause less disruption. Travel restrictions should be proportionate and non-discriminatory, in line with the Council Recommendation of October 2020. Proportionate restrictions, including testing of travelers, should be maintained.

Whereas in the statement of the Members of the European Council, leaders agreed on the need to restrict non-essential travel for the time being, the European Commission has formally warned six Member States that their virus-related border restriction measures could undermine free movement within the EU and has reminded them that their measures need to be proportionate[8]. It will be an interesting issue to follow in the next few days.

In any case, as stated in the study mentioned in introduction, “while border restrictions are not per se excluded by the EU’s legal framework, the nature of the Schengen area is to render them an exception, placing the burden of justifying border measures not on citizens seeking to move but on states restricting free movement”[9].

2. The legitimate call for a collective preparation and for a coordinated and smooth reopening of travel and tourism by the touristic sector 

In its joint recommendations, published on 25 February 2021, the European Tourism Manifestoalliance, a group of more than 60 public and private travel and tourism organizations, called for the creation of Commission-led Task Force to restore freedom of movement following months of lockdowns and travel restrictions due to the Covid-19 pandemic.

In our article on the Tourism and Transport package, we indicated that the coming months would be a time to assess whether Member States intend to support the fundamental freedoms that make up the internal market and whether they wish to attach greater importance to the rights of their citizens[10]. Almost one year later, it seems like the situation has not improved.

The published joint recommendations for an EU roadmap to restart travel and tourism calls again for more coordination between Member States with regard to travel restrictions as well as a harmonized EU framework for travel-related testing.

The tourism sector adds: “Once the health situation allows it, it is crucial to restart tourism and leisure activities alongside re-establishing freedom of movement. Governments should implement protocols for health and safety that seek to protect all tourists and workers, allowing for a restart of tourism activities using a risk-based approach. A harmonized approach is necessary, for instance based on the EU Guidance for the progressive resumption of tourism services issued on 13th May 2020”.

To help the EU citizens and businesses by providing the clearest and most accurate information possible, the European Commission has developed the “RE-open EU” platform[11], which is also available as an app. 

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[1] See our article “Where are the boundaries of compatibility of national restrictions with EU law”, 21 April 2020

[2] See our previous article « Covid-19 : Quelles frontières pour la compatibilité des mesures nationales avec le droit de l’Union européenne », 4 January 2021 

[3] Free movement rights of travelers with an essential function or need, such as transport workers, health and social care, frontline, cross-border and seasonal workers are in theory ensured by specific rules.

[4] “EU law in the ‘first wave’: The legality of national measures to tackle the Covid-19 crisis”, by Mark Dawson, Professor of European Law and Governance, Hertie School, Berlin & Pierre Thielbörger, Public Law and International Law Professor and Director of the IFHV, Ruhr-University Bochum, 8 December 2020

[5] Above-mentioned study p. 14

[6] On 15 April 2020, the European Commission published a Joint European Roadmap towards lifting COVID-19 containment measures / On 13 May 2020, the Commission published a series of measures – the Tourism and Transport” package – consisting of guidelines and recommendations aimed at helping Member States to gradually lift travel restrictions and allow, after months of closure, the tourism and cultural sector to recover while respecting the necessary health precautions / In August 2020, the European Commission called on Member States to allow unmarried couples to travel, noting that obstacles to the free movement of persons still exist / On 13 October 2020 the European Union attempted, through Council Recommendations, to call again on Member States to further coordinate in order to safeguard, inter alia, the free movement of persons by proposing common criteria to frame national restrictions as well as by setting a common threshold below which Member States should not restrict the free movement of persons travelling to or from another Member State.

[7] Council Recommendation (EU) 2020/1475 on a coordinated approach to the restriction of free movement in response to the Covid-19 pandemic – 13 October 2020, page 3

[8]https://www.euractiv.com/section/justice-home-affairs/news/six-eu-countries-warned-over-border-restrictions/

[9] “EU law in the ‘first wave’: The legality of national measures to tackle the Covid-19 crisis”, p. 49

[10] See our article “Covid-19: The free movement of persons in the Tourism & Transport package published by the European Commission on 13 May 2020”, 15 May 2020

[11] https://reopen.europa.eu/fr/ 

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