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By Daniel ThymUniversität Konstanz

It was shown in the first part of this blogpost that border controls and severe travel restrictions within the Schengen area can be justified under the public health exception as a matter of principle. That does not imply, however, that Member States can do as they please. They must comply with the relevant case law of the Court of Justice limiting state discretion even in times of crisis. Particularly disquieting are unprecedented travel bans for Union citizens that several Member States have enacted to varying degrees and which have been described in the first part of the blogpost. Similarly, the travel ban at the external borders remains deplorably vague at the moment. The supranational institutions should strive to establish uniform and proportional practices that enhance legal certainty for citizens and third country nationals.

(5) Distinguishing (Il)Legitimate Travel

It is firmly established that restrictions must be proportionate. Under normal circumstances, the Court of Justice insists on an individualised assessment considering each case separately (here, paras 94-99). Even if we accept that, to fight a disease with an epidemic potential, border control agents can currently resort to generalised criteria with little or no room for individualised balancing (here, paras 89-91; and here, paras 64-68), Member States do not have a carte blanche. Instead, a generalised proportionality assessment may distinguish different categories of persons – mirroring the German, Danish or Swiss practice described earlier and the Commission’s proposal for an external entry ban, which, nevertheless, may establish limits to cross-border movement that are too strict.

For decades, the Court of Justice has insisted that the free movement of workers is a ‘fundamental principle’ and required derogations to be interpreted narrowly (here, para 33). Member State should therefore follow the example of Germany, Denmark and Switzerland and the Commission Guidelines by allowing frontier workers and other economically active persons to enter the country to work there under similar conditions as domestic workers. Of course, individual health checks may be performed, but to hermetically close the border to frontier workers turns a blind eye to over 60 years of successful economic integration in the single market.

Other categories can be developed to find a reasonable middle ground. Transit, for instance, should usually be permitted in line with the Commission Guidelines (and it appears excessive if the Austrian authorities require transit passengers to have enough fuel to cross the country). Moreover, we should recognise that all Union citizens benefit from free movement under Article 21 TFEU even if they do not pursue economic activities. Families, for example, should not be separated indefinitely. This Swiss practice might be a good example in this respect, although it appears problematic to categorically exclude nonmarried couples, especially if the travel restrictions continue over a longer period. An even better solution might be the German reference to an umbrella formula of ‘cogent reasons’ (triftige Gründe) that may cover non-family related visits. Such exceptions give border guards leeway to respond to individual needs.

Tourism, by contrast, cannot usually trump public health, while there may be no legitimate reason to prevent people from relocating to holiday homes in countries without a ‘lockdown’, even if they do not live there habitually (and are not covered by exceptions for people residing abroad as a result). Shopping does not appear essential either, although the overall picture appears more nuanced, if we consider that supermarkets near the Swiss border have greatly benefited from transnational customers over the past years. To exclude visitors that had previously been lured can amount to economic protectionism, which the Court of Justice has, rightly, been critical of (here, para 28). Again, debates about shopping may appear extravagant at a time of countrywide lockdowns, but they partly motivated the German travel restrictions.

On one point there seems to be wide agreement: border controls should not hamper the free circulation of goods. Legally, that is mandatory given that the free movement of goods will usually not endanger public health except in the person of the driver – and is, to the contrary, crucial to minimise negative repercussions of the epidemic for businesses and the supply chains of supermarkets and hospitals. The Commission initiative to establish ‘green lanes’ for swift border crossings by trucks is a pragmatic solution at times when there are dozens of kilometres of traffic backlog, not least at the external borders of Austria and Poland. For the history of EU integration, it nevertheless presents a return to the roots given that a green sticker at windscreens had initiated the abolition of border controls under the Franco-German Treaty of Saarbrucken of 1984. That we revert to long-forgotten practices to safeguard basic free movement guarantees shows how dangerous the current situation is for the European Union.

(6) Demonstrating Legitimate Reasons in Practice

Border checks are an administrative activity that is habitually implemented at short intervals and requires swift judgment. That is why the Member States should strive for a clear set of criteria and administrative formalities that can guide decision-making. At present, travel restrictions seem to be rooted in executive ordonnances in most Member States, which may be acceptable in an emergency situation. As soon as possible, however, respect for limitations under EU law should ‘be ensured by the details and limitations contained in the framework for the practical exercise of the police powers enjoyed by the Member States’ (here, para 38). The categories discussed above may serve as a point of reference.

In practical terms, it is crucial that citizens know what kind of documentation they need to demonstrate legitimate reasons. Legal certainty commands clear standards and, yet, these guidelines should leave room for a flexibility to comply with ECJ case law ‘that evidence may be adduced by any appropriate means’ (here, para 16; and here, para 53). The German federal police, for instance, invites people to bring written evidence, such as a work contract or marriage certificate, while not excluding other means of prima facie evidence. Newspaper reports indicate that border guards verified reasons in (very) brief oral interviews. Austrian insistence on a specific medical certificate at the Southern border appears overtly formalistic even if we acknowledge that Italy is a top-risk country. The Commission should support the spread of best practices across Europe.

In any case, states should refrain from requiring ex ante authorisation which would establish a de facto visa requirement in violation of Article 5(1) of the Free Movement Directive. The ‘frontier worker certificate’ (Pendlerbescheinigung) the German authorities have initiated seems to respect that provision given that it aims at simplifying mobility and does not preclude other evidence. It should be noted, in particular, that the current version foresees the signature of the employer only instead of prescribing a confirmation by state authorities line with a draft version, which I had criticised in an earlier German intervention. Nevertheless, the reappearance of visa-style certificates is a worrying phenomenon for the Schengen area.

There is a surprisingly long line of cases, in which the Court of Justice emphasised the residual responsibility of Member States for their own nationals (here, para 29; here, paras 34-36; here, paras 21-22; here, para 40). On that basis, Member States may grant nationals a privileged right of return, which should, however, include Union citizens habitually residing in a country in line with the Commission Guidelines and the principle of non-discrimination under Article 18 TFEU. In order not to deprive that guarantee of practical effects, Member States ought to give Union citizens leeway in terms of demonstrating residence, since Union citizens do not receive a (declaratory) residence permit in many Member States. They may, therefore, have little proof of residence. In practical terms, basic knowledge of the local language and an adequate description of the connections to a specific city or the workplace may usually suffice.

(7) Asylum Seekers and other Third Country Nationals 

It is important to understand a basic cleavage underlying entry and residence rules in the European Union: While Union citizens benefit from a constitutional guarantee to free movement, so-called third-country nationals have a lesser degree of legal protection. That is not to say, crucially, that they have no rights on their side, but the legal contours of statutory guarantees differ markedly. When it comes to formalities, their situation is easier, since third-country nationals will usually have a residence permit, which facilitates the documentation of cogent reasons for legitimate travel to return home or to engage in cross-border economic activities. 

In line with previous comments, tourism alone will rarely qualify as a legitimate reason to enter. Similarly, other motives will usually have a lesser weight given that third-country nationals do not benefit from free movement under Article 21 TFEU. In exceptional cases, the human right to family unity under Article 8 ECHR may warrant a different outcome, but ECtHR case law on that matter is notoriously vague and subject to an explicit ‘public safety’ caveat. The situation is different, of course, for those who hold a residence permit already. They should be allowed to enter the state who had issue that permit, also considering that the human ‘right to enter his [or her] country’ under Article 12(4) of the International Covenant on Civil and Political Rights can possibly be interpreted to cover long-term residents (here, para 20).

A special case are asylum seekers who may lodge asylum claims ‘at the border’ under Article 3 of the Asylum Procedures Directive and Article 3 of the Dublin III Regulation and must be allowed to enter temporarily, possibly in the context of a border procedure. Member States are, therefore, under a legal responsibility to continue accepting asylum applications, even though it remains an open question to what extent safeguard clauses under Article 72 TFEU or Article 347, mentioned above, may justify exemptions in times of serious threats to public policy, in particular when it comes to secondary movements and rejection at the border that does not violate the prohibition of refoulement. The issue was hotly debated in Germany and Austria during 2015/16 and it is a sign of political realism that the issue is not being raised at the moment. The official Swiss position remains ambivalent insofar as applications at the border are concerned, while the German government has refrained from addressing the theme so far.

(8) Closing the External Schengen Borders

In a spectacular move, the European Council agreed to introduce a pan-European travel ban for the Schengen area as a whole at a videoconference on 17 March 2020. No formal rules were adopted; instead, a simple Commission Communication with no more than 3 ½ pages of written text is meant to guide Member States in implementing the travel ban. There is, therefore, no legally binding legislative act or executive regulation underlying the travel ban, which, rather, emanates from the administrative practices of the Member States on the basis of the Schengen Borders Code, which the Commission Communication aims at coordinating politically.

More specifically, Article 6(1)(e) of the Schengen Borders Code Regulation may serve as a legal basis for a refusal of entry under Article 13 if we conclude, in line with previous comments, that the coronavirus epidemic constitutes a threat to public health as defined in Article 2 No. 21. Unfortunately, the Commission remained silent on the procedure to be followed. In particular, it does not remind Member States that Article 13 of the Schengen Borders Code requires a substantiated decision in line with the standard form attached to the Regulation as well as a right to appeal, albeit without suspensive effect. The Commission should clarify the situation as soon as possible, also indicating to what extent it thinks that either Article 72 or 347 TFEU informs a generous interpretation of existing laws or possibly even a deviation from regular procedural standards. 

Along similar lines, it remains unclear, how the Commission defines the exemptions laid down in the non-binding Communication, such as ‘imperative family reasons’ or ‘persons in need of international protection’, which semantically evades the question whether people coming from potentially safe countries can claim asylum. Moreover, the exemptions are presented in an enumerative manner without indicating whether the reference to ‘non-essential travel’ may be applied in individual cases even if the other criteria are not met – mirroring the ‘cogent reasons’ formula of the German federal police. The Communication was apparently written under utmost time constraints and should be specified as soon as possible.

In doing so, the argument presented above about different categories of (il)legitimate travel may serve as a point of reference, even if we acknowledge that rules for third-country nationals can be stricter than for Union citizens. This generic conclusion may extend to the interpretation of the public health exception in line with established case law on third-country nationals: similar wording need not mean identical outcome (here, paras 72-74). Just before Christmas, this position was reinforced by the Court in a judgment on Article 6(1)(e) of the Schengen Borders Code (here, paras 31-43; see also here, paras 53-55; and here, paras 40-43). While these arguments sound very academic, they can have tangible repercussions for the implementation of the travel ban at the external border, since they indicate that Member States have more leeway when applying the public health exception in the Schengen Borders Code. 

That leeway may influence the definition of categories for legitimate travel, can support a generalised proportionality assessment and could vindicate stricter documentation requirements. It may also affect the interpretation of the public health exception at a time when the EU is the epicentre of the epidemic. That entails that the prohibition of inward travel is not only about protecting Europeans, but aims at preventing negative consequences for third states – as the Commission Communication rightly emphasises. It seems to me that it is politically and legally appropriate to take into account such broader effects on world health (here, paras 75-78), even if the Court of Justice came to a different conclusion in a case concerning exit bans for Union citizens (here, para 25). Instead of retreating to national fortresses, Member States should act in solidarity to support each other in fighting the epidemic and minimise the danger of contagion within Europe and beyond.

These diverse considerations show that the Commission Communication can be no more than a starting point of a legal and political process that gradually specifies the contours of the travel ban and supports the spread of best practices among Member States. Otherwise, the Commission and the European Council will not meet the self-declared goal of achieving a uniform application across the Union. Ideally, the EU legislature should stand ready to adopt a Regulation specifying detailed prescriptions as a lex specialis. In doing so, it should clarify the categories of (il)legitimate travel, define procedural standards and elucidate documentation requirements. Swift action can be necessary in times of crisis, but it should not undermine the rule of law in the medium run, on which the European Union depends fundamentally if it wants to achieve its goals.