COVID-19 passport

Are we creating a dangerous precedent? How the right to free movement is infringed by the measures taken to slow COVID-19

The right to the free movement of persons and goods is one of the great achievements of the European Union and one of the basic rights of the citizens of the Union. This right was the result of the Maastricht Treaty, which introduced the concept of citizenship of the European Union, all nationals of the Member States are automatically citizens of the Union. This right implies that citizens of the European Union may move and reside freely within the territory of the Member States

This is expressly provided for in Article 3(2) of the Treaty on European Union (ETE): “TheUnion shall provide its citizens with an area of freedom, security and justice without internal frontiers, in which the free movement of persons is guaranteed in conjunction with appropriate measures on external border control, asylum, immigration and prevention and combating crime”.

Moreover, Article 21 of the Treaty on the Functioning of the European Union (TFEU) provides that:

“1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and the provisions adopted for their implementation.

2. Where Union action is necessary to achieve this objective, and unless the Treaties have provided for the powers of action in this regard, the European Parliament and the Council may adopt, in accordance with the ordinary legislative procedure, provisions designed to facilitate the exercise of the rights referred to in paragraph 1.

3. For the purposes referred to in paragraph 1, and unless the Treaties lay down powers of action to do so, the Council may, in accordance with a special legislative procedure, adopt measures on social security or social protection. The Council shall act unanimously after consultation with the European Parliament.”

This right is also expressly set out in the Charter of Fundamental Rights of the European Union, specifically Article 45thereo:

“1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States.

2. Freedom of movement and residence may be granted, in accordance with the provisions of the Treaties, to third-country nationals lawfully residing in the territory of a Member State.”

As another legal basis for this fundamental right, which is being recently violated as a result of the measures against covid-19, and before that, by the massive arrivals of refugees and migrants, we find Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of Union citizens and their family members to move and reside freely within the territory of the Member States.

Article 5(1) of that directive, relating to the right of entry, the right which has generated the most controversy recently since the spread of the virus, provides that:

1. “Without prejudice to the provisions governing travel documents at national border controls, Member States shall allow in their territory any Union citizen in possession of a valid identity card or passport and his family members who are not nationals of a Member State and who are in possession of a valid passport.

Union citizens may not be given an entry visa or equivalent obligation.”

The obstacles to the full enjoyment of this right have been several, from the arrival in the European Union of significant numbers of migrants and refugees to measures to deal with terrorist attacks and recently, massive control of internal and external borders, temporary restrictions on travel and the perimeter closure of borders between the Member States to minimise the progress of the spread of covid-19.

We cannot deny that the management of these problems puts at risk and seriously infringes the right to free movement, a basic and essential right in the European Union.

The European Union must implement proportionate and effective policies to halt the progress of Covid-19 without infringing the right to free movement of Union citizens and must have sufficient competence to oblige the Member States to comply with these Treaties and Directives.

To this end, I welcome one of the principles that determine the content and way of action of the European Union, the principle of subsidiarity, which implies that the European Union will only intervene when its action is more efficient and effective than that of its Member States, and personally, I believe that a common policy to deal with Covid-19 by the European Union will be more effective than a number of different and sometimes contradictory, ineffective and fundamental rights-infringing measures.

This is also defended by resolution of 17 April 2020 on the Union’s coordinated action to combat the COVID-19 pandemic and its consequences, which urges the Member States to take only necessary measures, coordinated and proportionate in the case of restricting travel or establishing and extending internal border controls, measures which must be preceded by careful assessment of their effectiveness in resolving public health problems and relying on existing legal rules, namely the Schengen Borders Code and the Freedom of Movement Directive, in full compliance with the Charter of Fundamental Rights of the European Union.

It also calls on the Commission to urgently assess whether the emergency measures are in conformity with the Treaties and to make full use of all available Union instruments and sanctions, including budgetary ones, to address this serious and persistent violation and once again underlines the imminent need for a Union mechanism for democracy, the rule of law and fundamental rights.

This is also advocated by the European Parliament repeatedly in several resolutions, while respect for the fundamental right to freedom of movement must be paramount and under no circumstances can it be infringed if there are other alternatives and less restrictive measures.

There are several resolutions prior to the Covid-19 pandemic where Parliament has supported this idea and yet they have not helped to minimise the effects of the measures that have been taken:

The Resolution of 16 January 2014 on respect for the fundamental right to freedom of movement in the EU (2013/2960(RSP), where the European Parliament calls on the Member States to comply with the treaty provisions on EU rules on freedom of movement and to ensure respect for the principle of equality and the fundamental right to freedom of movement in respect of all Member States.

It also strongly expresses its disagreement with the position of some European leaders calling for changes and restrictions on the free movement of citizens, it also calls on the Member States to refrain from taking measures that may affect the right to freedom of movement, which is based on fundamental European Union legislation and rejects outright any proposal to limit the number of migrants because it is contradictory to the principle of freedom of movement of persons enshrined in the Treaty on European Union.

For its part, the European Parliament’s Resolution of 15 March 2017 on obstacles to the freedom of Union citizens to move and work in the internal market (2016/3042(RSP)), calls on the Member States, in accordance with the principle of subsidiarity, which eliminate any discriminatory practice or unnecessary obstacle that may be contained by their rules for Union citizens and their family members, including third-country nationals, so that they may enjoy the right of entry and residence in the territory of the Member State concerned […]

One of the greatest interest in this particular case, in my view, is the European Parliament’s Resolution of 30 May 2018, on the annual report on the functioning of the Schengen area (2017/2256(INI) since it condemns the continuous restoration of controls at internal borders, because, this undermines the basic principles of the Schengen area and also considers that many of the extensions are not in line with the existing rules as regards their duration, necessity or proportionality, and are therefore illegal.

In addition, it states that the Member States have not taken adequate measures to ensure cooperation with other Member States concerned in order to minimise the effects of those measures and that they have not provided satisfactory justifications for the reasons for such checks or sufficient information on their results, the thus impeding the Commission’s analysis and Parliament’s control.

The most recent resolution, which deals with this particular problem, is the European Parliament’s Resolution of 24 November 2020, on the Schengen system and the measures taken during the COVID-19 crisis (2020/2801(RSP), where the European Parliament regrets that the sudden closure of borders hastily and coordinated and the introduction of accompanying measures will leave people in transit and seriously affect those living in border regions by limiting their ability to cross the border to work, to provide and receive services or to visit friends or family.

It also underlines the detrimental effect that the closure of internal and external borders has had on the business, scientific and tourism sectors at the international level, and therefore rightly considers that, instead of introducing border controls, Member States should endeavour to take the necessary measures to enable people to cross borders, while ensuring maximum safety and health protection.

Undoubtedly, it considers that restrictions on free movement should be replaced by specific measures in line with the principles of proportionality and non-discrimination, encouraging the Member States to moderate their restrictions and recalling the importance of restoring a fully operational Schengen area as soon as possible.

It also points out that the areas affected by the pandemic do not always coincide with national borders, which is why the limitations of movements must be based on the public health situation in the different regions and be flexible and local, which I share since contagions occur in a considerable way at the local level.

It also understands that global, adequate and clear measures to protect public health should be used for people crossing internal borders, in order to avoid the restoration of internal border controls and considers that the rapid return to a fully operational Schengen area is of paramount importance and depends both on the political will of the Member States and on their commitment to coordinate measures within the framework of the acquis Schengen.

Moreover, as set out in the resolution, any uncoordinated and bilateral action that may lead to unnecessary restrictions on mobility and free movement must be avoided, since we are currently seeing too many unjustified restrictions correctly.

Recommends that the Commission and the Member States should draw up contingency plans in the event of further peaks in the spread of COVID-19, in order to prevent temporary border controls from becomes semi-permanent in the medium term, since, in that case, the provisions of Regulation (EU) 2016/399 of the European Parliament and of the Council would be infringed, 9 March 2016 establishing a Union Code of Rules for the crossing of persons across borders, […]” where a serious threat to public policy or internal security requires immediate action, a Member State should be able to restore controls at its internal borders for a period, not more than ten days. Any extension of that period must be monitored at Union level.”

It is of the utmost importance, mention the Commission Communication of 13 May 2020 entitled ‘COVID-19 – By a gradual and coordinated approach to restoring freedom of movement and lifting controls at internal borders’ (C(2020)3250), which invites the Member States to participate in a process of the gradual reopening of unrestricted cross-border movement within the Union, as, these measures damage our European way of life in a Union where citizens can travel freely across borders, such as workers, students, family members or tourists.

Representatives of Germany’s border regions also request it, Belgium, Luxembourg and the Netherlands in Petition No 0653/2020 expressing concern about the sudden closure of the Union’s internal borders in response to the COVID19 pandemic, and the consequences that the various measures introduced by the several Member States have had for Union citizens, especially those living in border regions.

In conclusion, since the Member States can only introduce checks at internal borders on an exceptional basis and as a last resort in the event of a serious threat to public policy or internal security, and that, in order to do so, they must respect the principle of proportionality, I believe that they are currently disproportionate measures to slow the progress of Covid-19, it is too late and the effects of these measures are harmful and difficult to repair.

I believe that mobility restriction is an info much effective measure now, since, according to Council Recommendation (EU) 2020/1475 of 13 October 2020, on a coordinated approach to restricting free movement in response to the COVID-19 pandemic, restrictions on free movement should be considered only where the Member States have sufficient evidence to justify them from the point of view of their public health benefit and have reasonable grounds to believe that they will be effective.

What we really need in the face of a shared health crisis is a united response respecting the principles of solidarity, proportionality, equality and without infringing other fundamental rights.

For a perspective closure, is border closure effective in minimizing coVID-19 progress? Is this measure proportionate to the infringement of the right to free movement?

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