Undoubtedly, the most significant consequence of the COVID-19 pandemic is the thousands of deaths that humanity counts. At the same time, though, the unprecedented public health crisis has severely affected the lives of millions of people in various, unpredictable and complicated ways. In the European context, the new circumstances inevitably give rise to new challenges for the European Union’s legal order and institutional architecture.
“Of all the specific liberties which may come into mind when we hear the word ‘freedom’, the ‘freedom of movement’ is historically the oldest and also the most elementary”, Hannah Arendt claims. Her writings become even more relevant in the European context, where the freedom of movement of persons, which allows EU citizens and their family members to move and reside freely within the EU, is the cornerstone of Union citizenship. Movement within the single market and the Schengen area has been removed from the competence of member states and is regulated by EU law and more specifically, Directive 2004/38/EC (Free Movement Directive).
However, in times of a pandemic, human movement turns increasingly into a problem. The elementary freedom to move is curtailed for the greater good of public health. Despite the intuitive appeal of such a claim, a closer look at the legal status of such suspensions on the free movement of persons is necessary – we need to make sure that the limits of said derogations are legitimate, for as the Council of Europe’s Venice Commission has stressed, “the gravest violations of human rights tend to occur in the context of states of emergency”.
The main measures introduced by national governments affecting the free movement of persons, which vary between member states, are the reintroduction of border controls by member states. Despite the important public health reasons calling for the elimination of travel, the need of European citizens to move across member states still exists. For instance, 7% of Greece’s working population is classified as residing in another member state: students, whose universities closed; employees, who can now work from their home country and no longer need to reside in another country; people with underlying conditions who want to be with their families in case of an emergency – the list of people, who might have chosen originally to lead a life in another member state yet wanted to return to their own country upon the eruption of a global pandemic, goes on.
The desire – or sometimes, need – of certain people to come back to their home country is echoed in Article 3 of Protocol No 4 of the European Convention on Human Rights (ECHR) that precludes a member state from refusing its own nationals the right to enter its territory and remain there for any reason.
Nevertheless, to conclude that measures prohibiting the entry of EU citizens legally residing in a member state’s territory violate the ECHR could amount to a Manichean view of the legal status quo, for the curtailing of that right would not be illegitimate prima facie.
Firstly, the temporary reintroduction of internal border checks is possible in accordance with the Schengen Borders Code subject to conditions and notification to the Commission and the other member states. Article 25 allows the reintroduction of border controls in the context of foreseeable events. The checks may be introduced for a period of up to 30 days, that may be prolonged for another 30-day period, and in any event shall not exceed six months. Furthermore, Article 28 allows the reintroduction of border controls at internal borders in the context of cases requiring immediate action. The checks may be introduced for up to ten days, they may be prolonged for renewable periods of up to 20 days, and shall not exceed a total of two months. Border checks must be employed as a last resort, limited in scope and duration to the strictly necessary to respond to a serious threat and be in proportion to the threat. Public health is not explicitly included in the legitimate grounds to reintroduce border checks; Article 28 only refers to public policy and internal security. However, and even though EU law usually distinguishes public health from public policy, the latter can be broadly interpreted to fill the void under the current circumstances and justify the measures taken.
Secondly, the restrictions comply with the general EU law principle of proportionality. This is because they are not a blanket ban – excluding all travel whatsoever. The Greek paradigm, for instance, showcases this respect to proportionality in the case of repatriation, since the policy of ‘selective’ repatriation is reconciled with public health objectives along with the right of Greek nationals to return back home under extenuating circumstances (i.e. if they were in need of immediate health care and could not be treated at their place of residence abroad; if they had nowhere to stay due to the termination of their apartment lease; if they were stranded in transit in airports). In these and similarly extenuating circumstances the home country would initiate repatriation procedures.
One might argue that this strategy violates the EU principle of non-discrimination, which explicitly prohibits the discriminatory treatment between EU citizens on grounds of nationality. Thus, by prioritising the entry of long-term residents, while excluding the entry of other EU citizens, one could maintain that this amounts to a violation of non-discrimination. But again, upon a test of proportionality, the violation seems to be legitimate.
Beyond the four walls of the corpus of European law, on January 28, 2020, the European Commission announced that the EU Civil Protection Mechanism had been activated at the request of France to repatriate EU citizens present in Wuhan (China). This Mechanism, the operations of which are supported by resources of member states, has also been used by Greece. One of its most complex actions – involving the Greek Civil Protection Authority, the Ministry of Foreign Affairs and airline companies – concerned the repatriation of ten Greeks from a town in Peru. The legal basis of the Mechanism is Article 196 of the Treaty on the Functioning of the European Union (TFEU), which states that the EU shall encourage cooperation between member states in order to improve the effectiveness of systems that prevent or protect from natural or man-made disasters, including acute public health emergencies, occurring both inside and outside of the Union. Therefore, once again, the EU has showed institutional flexibility despite the unprecedented nature of our times.
In the Greek context, the significance of the European legal regime in the context of repatriations was reflected in the ministerial remit of the matter. Repatriations were primarily handled by Miltiadis Varvitsiotis, the Alternate Minister of Foreign Affairs for European affairs, rather that Konstantinos Vlassis, the Deputy Minister of Diaspora Greeks, whose role might have seemed as the perfect fit for those circumstances.
As the pandemic crisis further evolves, the institutional and legal status quo of the European Union will be further challenged. Despite the commonplace criticism of the EU being a bureaucratic monolith, its legal and institutional framework seems to have been able to accommodate the complexity of our times, striking a golden mean between the personal and the collective, as well as the European and the national.
Vasiliki Poula is a Law student at the London School of Economics and a research assistant at SEESOX’s Greek Diaspora Project