from Rome, Italy
The European Commission proposes a coordinated approach to limit restrictions to the freedom of movement
“The freedom to travel across borders in Europe is one of the most tangible benefits for people in the European Union” (European Commission, 2020). These are the words with which the President of the European Commission, Ursula von der Leyen, opened her speech on September 4. The speech summarized the Commission’s Proposal for a Council Recommendation on a Coordinated Approach to the Restriction of Free Movement in Response to the COVID-19 Pandemic. The Proposal invites the Council to adopt guidelines for a coordinated approach regarding Member States’ measures that restrict free movement within EU borders. This Proposal is the latest of a series of steps taken by the Commission in the past months. It aims at limiting travel restrictions within the Union while protecting the health and safety of each European citizen. However, why is the freedom of movement so important for the Commission?
Travel restrictions during the COVID-19 pandemic
Since the COVID-19 pandemic broke out, several Member States of the European Union have been taking different measures to contain the spread of the virus. Some of these measures include restrictions on entry to other Member States even for people traveling for economic purposes, such as workers and entrepreneurs. These restrictions have not only impacted the freedom of movement, but they also have unleashed spillover effects on the internal market (Commission Proposal COM/2020/499). These uncoordinated attempts to avoid the spread of COVID-19 by people crossing EU internal borders have created uncertainty for tourists, workers, and students. In this regard, President von der Leyen underlined the importance “to ensure more clarity and predictability” to allow citizens to plan their lives (European Commission, 2020).
The Proposal for a Council Recommendation on a Coordinated Approach to the Restriction of Free Movement in Response to the COVID-19 Pandemic
The Proposal is a document adopted by the Commission on September 4. It is part of the Common European Response coordinated by the European Commission and it touches upon four main points. The purpose is to create a clear communication between Member States and common standards to classify the seriousness of the Coronavirus situation within each State (European Commission, 2020).
Specifically, the first point introduces common criteria and thresholds that each Member State should adopt in the decision-making process for introducing travel restrictions. Therefore, serious restrictions should be made only for persons incoming from States that present an agreed level of seriousness in terms of COVID-19 spread.
The second point recommends a common color code to divide regions according to the number of positive tests into Green, Orange, Red, and Grey areas. This will avoid different States to use the same color to refer to different statuses. Grey areas will be those about which too little information is available (European Commission, 2020).
Thirdly, the Proposal suggests using a common framework for measures to apply to travelers coming from high-risk areas. President von der Leyen stated that “no EU citizen should be denied entry to another EU country”. This provision aims at allowing people coming from grey or red areas to enter another Member State. The proposed solution is rather to implement other measures, such as the quarantine or, preferably, a COVID-19 test (European Commission, 2020).
Last, the Proposal indicates that the Member States should provide the Commission with timely and clear information about any upcoming change on a weekly basis. The Commission should be notified one week before any change enters into force. This measure would increase the level of predictability for EU citizens (European Commission, 2020).
The Commission’s Proposal is the latest of a series of steps taken since March 2020
The Commission’s Proposal of September 4 is not the first attempt to restore freedom of movement and lift travel restrictions. Since the beginning of the pandemic, the Commission has been coordinating a Coronavirus Response, and cross-border movement has always been a priority in its agenda. On March 16, the Commission adopted guidelines for border management measures to protect citizens’ health and ensure the availability of goods. The Commission also allowed Member States to reintroduce border control if justified by reasons of internal security and if proportionate to a security matter (European Commission, 2020). However, exactly one month later, the Commission itself and the President of the European Council issued the Joint European Roadmap (Communication from the Commission C/2020/3250).
The Joint European Roadmap initiative intends to lift COVID-19 containment measures and it gives the Commission two roles. First, the Commission has to ensure that Member States take measures that are proportional to the seriousness of the COVID situation in their country. Second, it should request to lift such measures in case they are disproportionate (Communication from the Commission C/2020/3250).
Moreover, on May 13 and May 15, the Commission also issued two Communications. One was addressed to other EU institutions and the other to Member States. The Communications aimed at creating a coordinated framework to enable countries to re-open internal borders and to benefit from the tourism season safely (Communication from the Commission C/2020/3250).
Finally, the launch of the Re-Open EU platform of 15 June 2020 is amongst the most important actions taken by the Commission. Re-Open EU is an interactive instrument that provides timely information about borders, travel restrictions, public health, and safety measures (Unione Europea, 2020). The platform enables its users to know what restrictions are in place in a Member State by selecting the country they wish to travel to. It is a time-saving solution and it avoids having to look for the information on Government’s websites.
The legal and economic importance of the freedom of movement in the European Union
After reading the Commission’s Proposal one could wonder what the relevance of free movement within the Union is, and on what grounds it has been restricted. Freedom of movement is mentioned in the Treaty on the Functioning of the European Union (TFEU) and the Charter of Fundamental Rights (the Charter). On the one hand, some Articles refer to the freedom of movement as a fundamental right at the juridical level. On the other hand, other Articles also recognize the economic dimension of free movement within EU borders.
Article 45 (1) of the Charter gives every Citizen of the Union the right to move freely within the territory of a Member State (Charter, 2012). This right is reinforced by Article 21(1) TFEU (2012), which specifies that the right to move freely is subject to limitations laid down in the Treaties. However, who are the subjects of this right? According to Article 20 (1) TFEU (2012), all nationals of a Member State are also citizens of the Union. Therefore, all nationals of all Member States have the right to move freely within EU borders.
In addition, Articles 26(2), 45(1), and 49(1) TFEU (2012) attribute an economic dimension to this right. Indeed, Article 26 is under Title I of Part Three of TFEU (2012), which regulates the internal market. Here, freedom of movement is placed within the context of the removal of internal frontiers to reduce barriers to the functioning of the internal market. As a matter of fact, it does not only refer to persons, but also to goods, services, and capital. In addition, Article 45 specifies that European workers have the right to relocate to another Member State for work purposes. Finally, Article 49 TFEU (2012) also prohibits restricting the freedom to relocate to another Member State of self-employed persons.
Three reasons why the freedom of movement can be restricted
Under European Union Law there are some cases in which the freedom of movement can be restricted. The legal basis for such restrictions is provided by Articles 27 of Directive 38/EC (2004), and by Articles 45 (3). Both Articles point out that the right to move freely can be restricted only in cases of public policy, public security and, unsurprisingly, public health.
Thus, what are the criteria for establishing that something is threatening public health? No wonder, Article 29 of Directive 38/EC (2004) provides that “The only disease justifying measures restricting freedom of movement shall be the diseases with epidemic potential as defined by the World Health Organization”. Therefore, it seems clear that the restrictions implemented to contain the virus perfectly fit the provision of Directive 38/EC (2004). In case of a threat to public health, the Union even has some duties. Amongst the many, Article 168 (1) TFEU (2012) provides that human health protection has to be taken into consideration when defining policies and activities. The Commission also has the duty of preventing cross-border threats to health. Finally, paragraph 6 of the same Article explains that the Council, on a proposal of the Commission, can adopt recommendations on public health issues.
From an emergency to a new “normality”?
The COVID-19 Pandemic has been a challenge of unprecedented dimensions for the European Union. From one day to another the EU institutions, as well as Member States, have found themselves facing a threat to public health and a growing economic crisis. Meanwhile, Union’s citizens saw their habits changing drastically. Many students had to suspend their Erasmus Programs or to adapt to on-line “Erasmus” solutions. Companies and corporations shifted towards online meetings instead of organizing cross-border in-person business trips, while conferences have been transformed into webinars. Workers living in a different Member State had a hard time coming back home or reaching the country they worked or wished to work in. Moreover, people living in bordering regions all of the sudden started remembering what having an actual border could be like.
In the first months of the Pandemic, there were few instruments to address this new public health threat as a Union. However, the situation seems to be shifting from an emergency to a new, possibly temporary, “normality”. In the first moment, sacrificing the freedom of movement seemed to be the necessary means to limit the spread of the virus and to ensure everyone’s health and safety. However, in the past months, the Commission has been re-addressing free movement attributing to it its due fundamental and economic importance. The Proposal of September 4 is, indeed, intended to return predictability and clarity to Union’s citizens who wish to plan a journey to other Member States for several reasons. The next step is for the Council to make a Recommendation based on the Proposal of the Commission. How will Member States react?
Bibliography (C-D)
Charter of Fundamental Rights of the European Union (Charter) [2012] OJ C 326/02
Consolidated Version of the Treaty of the European Union [2012] OJ C 326/26
Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/44
Communication from the Commission C/2020/3250 of 15 May 2020 Communication to the Commission Towards a Phased and Coordinated Approach for Restoring Freedom of Movement and Lifting Internal Border Controls – COVID-19 [2020] OJ C 169/30
Communication from the Commission to the Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions COM/2020/550 final of 13 May 2020 Tourism and Transport in 2020 and Beyond [2020]
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Directive of the European Parliament and the Council 2004/38/EC of 30 May 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJ L 158/77
Bibliography (E-R)
European Commission ‘Coronavirus: Commission Proposes More Clarity and Predictability of Any Measures Restricting Free Movement in the European Union’ (4 September 2020) <https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1555> accessed 16 September 2020
European Commission Proposal COM/2020/499 of 4 September 2020 Final Proposal for a Council Recommendation on a Coordinated Approach to the Restriction of Free Movement in Response to the Covid-19 Pandemic [2020]
Mika Baumeister, photo retrieved from Sunsplash <https://unsplash.com/@mbaumi?utm_source=unsplash&utm_medium=referral&utm_content=creditCopyText> accessed 20 September 2020
‘Re-open EU’ (Unione Europea, 2020) <https://reopen.europa.eu/it> accessed 16 September 2020
Autore dell’articolo*: Giulia Notaristefano, expert in International and European Affairs of the think tank Trinità dei Monti. Bachelor in International and Diplomatic Sciences at the University of Trieste and Master in European and International Studies at the University of Trento.
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