Valerijus Ostrovskis is the CoFounder and Partner of ACQUIS EU Law and Policy
With Europe facing a new spike of Covid-19 infections, accompanied by a second wave of national and regional lockdown measures imposed by the governments of many EU Member States, many of us are asking the question “can I still travel?”
During the Covid-19 pandemic, this freedom of movement, guaranteed under Articles 21 and 45 of the Treaty on the Functioning of the European Union (TFEU), has to be carefully balanced against another important regal rule, laid down in Article 168 of the Treaty – the requirement to ensure a high level of human health protection.
With these legal principles and trade-offs in mind, in October 2020 the EU has adopted the Council Recommendation on a coordinated approach to the restrictions on free movement to the COVID-19 pandemic.
This document is really worth reading as it provides a clear set of principles and rules agreed by all the 27 EU Member States, that in principle have to be applied throughout the EU (although the Council Recommendation is not legally binding).
The following are the most relevant takeaways from this Council Recommendation:
- First of all, travelling between the EU Member States remains allowed – regardless of the purpose – but depending on the Member State and the region of departure may be subject to certain conditions and requirements.
- The specific requirements applicable to a traveller as an entry condition should be based only on the grounds of the protection of public health, have to be necessary, proportionate and should not be discriminatory. In particular, the restrictions cannot be based on the citizenship of the traveller, but should be based on the country of departure and on the location(s) of the person during the 14 days prior to arrival.
- The Member States have to apply the common key criteria in deciding what restrictions (if any) they apply to travellers from different countries and regions within the EU. The three key criteria are: (i) the total number of newly notified COVID-19 cases per 100,000 population in the last 14 days; (ii) the percentage of positive tests among all tests for COVID-19 infection carried out during the last weeks; and (iii) the number of tests per 100,000 population carried out during the last week. Importantly, these measurements are made per region and not for whole territory of each Member States – which is particularly important for the larger Member States (such as France, Spain, Germany), but is also relevant to the smaller Member States, as the numbers of infections often differ dramatically in different parts of the same country.
- Depending on the level of the spread of the COVID-19 in each of the regions, and taking into account the number of tests carried out, all the regions within the EU Member States are classified into four categories:
- The “green” areas (the lowest number of new COVID-19 cases and the lowest percentage of positive tests);
- The “orange” areas (where only one of the two above mentioned criteria exceeds the numbers defined as the maximum thresholds for green zones);
- The “red” areas (where both the number of new COVID-19 cases and the percentage of positive tests exceed the defines threshold).
- The “grey” areas – the areas for which available information is not sufficient (for example due to the low testing rates).
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A specialised EU body – the European Centre for Disease Prevention, publishes and regularly updates maps of EU Member states, broken down into regions colour-coded accordingly as green, orange, red and grey areas. These maps are used as the common ground by all the EU Member States in deciding on the restrictions applied by them to travellers from any part of the EU.
Travellers from the green areas can enter any EU Member States freely without any major COVID-19 restrictions applied to them. If you are travelling from an orange or from a red area – the entry should still be allowed, but can be made subject to the requirement to undergo a quarantine / self-isolation period of certain duration, and/or undergo a test for COVID-19 infection.
The good news for business travellers and for those travelling to visit their family abroad, is that according to the Council Recommendation the requirement to undergo a quarantine should not be applicable to persons travelling for “imperative family or business reasons”. This category of reasons is not defined in the Council Recommendation, but as regards the imperative family reasons, the typical examples would include a funeral, childbirth, the need to take care of an ill family member, or other emergency family situations. For business reasons the national authorities are expected to be more lenient as it would not be practical or appropriate for border control officers to judge what reasons are important or not for a specific company.
To summarise, the common rules outlined in the Council Recommendation provide a welcome degree of clarity for travellers, and the encouraging conclusion from these rules is that travelling within the EU remains possible. These rules, however, do not apply to travellers from outside the EU. Each Member State decides individually what restrictions they apply to travellers from different non-EU countries.
As a final remark, besides the formal rules regarding travel restrictions, discussed above, even the travels from within the non-restricted categories can in practice be complicated due to the national lockdown measures, recently re-imposed by an increasing number of EU Member States. For example, when hotels and restaurants are closed, a planned business trip will often become extremely difficult. In addition, airlines frequently reschedule or cancel flights due to the reduced number of passengers.
Nevertheless, the current situation is much better than the completely closed borders and uncoordinated national measures we witnessed during the first wave of pandemic, and with a bit of extra patience and determination, justified by the current public health situation, most of the necessary trips can take place.
