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By Constantin Hruschka, senior researcher at the Max Planck Institute for Social Law and Social Policy Munich.

In the fast-growing Corona crisis, governments in Europe are currently trying to find ways to contain the virus. Many measures seem at first sight to make sense (like school closures and other restrictions on public life) to slow down the spread of the virus, and to serve as symbolic measures to point out the seriousness of the situation. On top of that, many States in the Schengen area have decided to reintroduce internal border controls and absolute entry bans for persons from “risk areas”. This, too, allegedly serves to flatten out the growth in the rate of infections but shows a law-and-order understanding of virus control which largely lacks the necessary health policy component. 

The corona virus is “novel” and comes from “outside” (initially from China) and then spreads in a kind of continuous flow – this seems to be the idea behind these measures. “Foreign” viruses are to be prevented from entering the country by refusing the entry of “foreigners”, while own citizens who have a right to enter their own country may only have to show their identity cards. In these cases, e.g. the German Federal Government – probably also due to a lack of legal competence to act – only makes recommendations on self-quarantine. The “foreigner”, the novelty, the evil must be stopped and repelled, and this – according to the political message to reassure the population – with border controls, so that we may reflect on internal solidarity and community as if this could cure the disease.

A kind of state of emergency is propagated everywhere but is almost exclusively interpreted nationally or even locally. Although the European Commission is trying to achieve European cooperation and coordination, the calls for securing the freedom of goods and services in the internal market have so far gone largely unheard. Only the announced support of a financial nature on the basis of Article 107 (2b) TFEU, which allows aid to repair damage in the event of disasters, seems to be well received by the Member States. In the press release of 13 March 2020, this focus on financial aid and stabilizing the economy is already apparent in the title, while a reference to Article 168 TFEU, which regulates the EU’s competences in the health sector, is missing in the document.

In addition, on 16 March 2020 the EU Commission reacted to the increasing border controls and “border closures”. The “Guidelines for border management measures to protect health and ensure the availability of goods and essential services” point in the right direction. The EU is proposing a coordinated approach while preserving the internal market with as few internal border controls as possible. However, this call for a coordinated European approach and its practical implementation may already come too late. Moreover, as explained below, these border controls are hardly justifiable from a legal point of view and are largely ineffective in the planned form in combating the virus.

Border controls: legal aspects

The Schengen Borders Code allows for the reintroduction of border control at internal borders under certain conditions, namely when “there is a serious threat to public policy or internal security in a Member State” (Article 25 para. 1 SBC). This alone is questionable. As the EU Commission emphasises in its guidelines, the reintroduction of internal border controls is (only) permitted in an extremely critical situation in response to risks caused by a highly contagious disease (guidelines, no. 18). In any case, the threatened overloading of the national health system or the prevention of panic purchases by “French”, “Austrians” and “Swiss” in Germany do not constitute such an extremely critical situation. 

However, even if there were a serious threat to public order or internal security, further requirements for the reintroduction of controls at internal borders must be observed. In particular, a proportionality test in which the individual health of the persons affected by the controls must be taken fully into account. The EU Commission stresses specifically (incidentally, also for controls at the external borders) that recognisably ill persons may only be refused entry if public health is not endangered thereby. Access to appropriate health care must be guaranteed on an individual basis (nos. 11, 15, 19 of the guidelines). The EU Commission points out very clearly that the objective of public health protection can be achieved without the formal reintroduction of border controls (No. 20).

If only a single national health system was at risk and the others were not, this system would also have to be “sealed off” – but currently infections are already occurring everywhere in Europe. For this reason, the reference to Article 72 TFEU is also misplaced, since a common European approach would be necessary to combat the virus effectively. In this situation, resorting to predominantly national “solutions” endangers public order and internal security much more than a coordinated European response. After all, the virus cares little about national borders and nationalities, which is why the World Health Organisation (WHO) is right to say that an internationally coordinated search for solutions is actually needed. 

These developments are particularly dramatic for the fundamental right to asylum. Whereas unlawful pushbacks at Europe’s external borders have been part of the Member States’ toolbox for years, the internalisation of precisely those externalisation practices can now be observed. Border closures also affect people seeking protection, since these are also “foreigners” who can and should be prevented from entering the country. The fact that until recently the denial of entry for persons seeking protection at the border was (and should continue to be) virtually unthinkable and unspeakable – because it is a blatant breach of international law – is completely forgotten in the return to the national. We are so busy flattening the curve that more persons than ever seem to be prepared to accept that the progress of civilisation in Europe over the last 75 years will be sacrificed on the altar of virus control. It is to be feared that the return to “normality”, which we all hope for, will potentially perpetuate this process of renationalisation. When the crisis is over, we will probably remember the national and the local focus of action as a strategy without alternative. 

Right to health versus border controls

The universal right to health, which is guaranteed in human rights, inter alia, by Article 12 ICESCR and Article 35 CFR, must not be undermined by restrictions regarding territorial access. The orientation towards nationality, which is visible in the announcements of the new border controls, is therefore not legally tenable. In Switzerland, for example, the closure of the border with Italy was also justified by the need to prevent foreign patients from using up the capacity of Swiss hospitals too quickly. In other words, Italian nationals and other non-Swiss nationals should not be treated in Swiss hospitals. This becomes particularly perfidious when, as in Switzerland, the health system is based to a high percentage on imported labour and foreign expertise. The Italian nurse or doctor can therefore come across the border, but their sick relatives cannot. 

This is not compatible with the human right to health. The European Commission draws particular attention to these aspects in the guidelines by emphasising the obligation to notify and justify internal border controls (No. 18), by pointing out that freedom of movement and non-discrimination must be observed while conducting such controls (No. 21), and by warning of the health risks that may arise from the way in which border controls are carried out, especially if they result in crowds of people in waiting (No. 22).

Virus control from a European perspective

The pandemic would be an almost unique opportunity to show how important and useful European solidarity is. In the course of the so-called migration crisis, the CJEU has always pointed out that solidarity may become a legal obligation under Article 80 TFEU in crisis situations. The concrete “solidarity” should not be limited to the now announced “aid to make good damage caused by natural disasters or other exceptional occurrences” (Article 107 (2)(b) TFEU), but could go much further. 

For example, Germany could send health workers to crisis regions while its own system still has capacity. Furthermore, a reporting system at European level for free beds, free respiratory equipment but also hospice care in order to deal as effectively as possible with the challenges posed by viral infections, should be envisaged. This would require, however, that checks should not be carried out at the borders, but that health tests should be carried out in the concrete risk areas, that infected persons should be effectively isolated and given the best possible care, especially in mild cases, in order to prevent further spread. 

Targeted measures

However, the plea against internal border controls and more Europe does not mean that there is no need to tighten up the freedom-limiting measures currently adopted. It is short-sighted that a massively interventionist strategy like the one in China is not being closely considered in Europe due to a mixture of racism and Western arrogance (and therefore refraining from taking a closer look at what has happened there). It is even more than doubtful that “flattening the curve” is an efficient (even if it was realistic) strategy in the fight against the virus. In Singapore and South Korea, border controls and the denial of entry were also resorted to, but additional temperature measurements were also carried out for everyone to help identify and isolate the infected persons. Contact tracing was conducted at great expense in each individual case. For such tasks, for example, the personnel resources saved at the border could be used very sensibly. 

Organising this on a European level would be an important and priority task for the European Union, which has a supporting, coordinating and complementary competence in the field of health protection, including in particular “monitoring, early notification of and combating serious cross-border threats to health” following Article 168 (1) TFEU). Incidentally, the Member States are also obliged under EU constitutional law to coordinate their policies in these areas (Article 168 (2) TFEU. In the event of a disaster, these functions are further emphasised by Article 196 TFEU.

The European Commission formulated the same suggestion in its guidelines. It proposes that neighbouring countries should carry out jointly one single health check at the border in order to identify persons who pose a threat to public health in Europe and to reduce overlaps and waiting times (No. 24). In addition, this cooperation should take place in close coordination with the EU to ensure the effectiveness and proportionality of the measures (No 25). The Commission also emphasises the need to maintain the permeability of internal borders in order to maintain supplies, particularly in the health and nutrition sectors, and more generally to avoid a total standstill in the world of labour (No 23). Above all, the overall content of the guidelines and in particular Part III (Nos. 11-13) and No. 20 make it clear that the internal border controls now planned and carried out are not suitable for effective virus control. 

Border controls: the practical level

The way in which border controls are practised throughout Europe gives the impression that the governments had only marginally considered the information available regarding the infection situation in Europe and had certainly not closely looked at the experiences in other States. In Germany, for example, people are acting as if the spread of the virus in the district of Heinsberg, the most important epicentre of the disease, was less threatening than travellers from abroad. Moreover, the Asian previous experiences, especially those of the countries particularly affected by the SARS pandemic in 2002/2003, showing that a virus outbreak is often local and a not continuous flow, are not taken into account seriously enough in fighting the disease. Current examples show that the disease spreads from certain places, e.g. from the Heinsberg carnival in Germany, the Shincheonji Church of Jesus in Daegu (South Korea), Madrid, the French region of Grand Est, Lombardy, and from Ischgl (Austria). The experiences from Singapore, Taiwan and Hong Kong show that not only “Chinese” are infected, because “they are much closer together than we are”, but rather every infected person can be a local source of infection.

This is why the EU Commission’s guidelines call for European coordinated border control practices. In times of pandemic control, the response should be led by the health authorities. The border authorities should help to provide travelers with the necessary information and refer cases of illness to them. In the view of the Commission, four steps are necessary for action at the border (no. 12 of the guidelines):

1) Screening of all arriving persons (independently of their nationality, so EU citizens as well as third-country nationals) who are checked at the external borders, irrespective of the means of transport used.

2) Distribution of information material to all persons arriving from or departing to the countries/regions concerned.

3) Screening of all departing persons and prohibition of departure for all those who have been exposed to COVID-19 or have fallen ill.

4) Isolation of persons suspected of being infected and transfer of sick persons to health facilities, in cooperation with the neighbouring country.

Israel and Singapore, for example, follow this pattern. Everything else is probably short-sighted. Consequently, border controls should not be carried out on the basis of nationality and usefulness of the person as “normal” border controls but should rather be conducted for the purpose of health, i.e. the controls should aim to check whether or not a person is potentially carrying the virus. This would mean no passport or residence permit checks but temperature measurements and corona tests. The capacities for such measures are obviously dramatically too low and would have to be built up quickly and applied on a large scale. Mass testing seems to be the only effective measure to identify infected persons. 

A role for the European Union as a supporting, innovative and supportive entity in this crisis (beyond economic compensation) seems more unrealistic than ever, even though the Commission is trying to show the European way with its guidelines. This is not only a missed opportunity but is very likely to have a lasting impact on our understanding of Europe. The “experience” that it is better to resort to national measures in a crisis will shape our image of the EU: providing for a “fair weather system”, useful for economically healthy times as a motor of economic development, but unsuitable as a leading actor in times of crises.  

The fantasies of national self-sufficiency regarding the production of goods and services, which are most clearly expressed in France but are present and spreading everywhere, prepare the ground for nationally oriented policies and the forgetting of the European idea of solidarity. We will probably only realise after the crisis that we have lost much more than just (hopefully relatively briefly) our freedom of movement during this period. For people who believe in the European project this is a frightening prospect. Because once European solidarity as a concept and as a practical solution has been compromised, it will not be long before the sense of the EU as a whole is called into question.