On March 17, 2020, the European Council endorsed a 30-day travel ban to the EU together with a whole range of other boarder management measures. EU Member States commenced with their implementation later that evening.
The adopted travel restrictions are initially set to last for 30 days but may be prolonged if necessary. It is noteworthy that not only Member States but also the four associated countries within the Schengen zone (Iceland, Liechtenstein, Norway, and Switzerland) agreed to the travel ban.
The adopted Guidelines for border management measures to protect health and ensure the availability of goods and essential services (“Guidelines”) were initially proposed by the Commission on March 16 and layout detailed provisions on the new border management regime. The Guidelines were prepared, as President von der Leyen stressed, to “protect people from the spread of the virus” and in order to “make sure that we [EU] maintain the flow of goods”.
While the ban introduces extensive border management measures (explained in detail below), the likes of which have not been seen in Europe in generations, at least not since the creation of the Schengen and the Single Market, the external trade measures are of particular interest for third countries, the Western Balkans and Serbia.
Transport of goods and services
To provide immediate relief to a transport community reader – you are exempted. The guidelines explicitly state that:
“Professional travel to ensure transport of goods and services should be enabled. In that context, the facilitation of safe movement for transport workers, including truck and train drivers, pilots and aircrew, across internal and external borders, is a key factor to ensure adequate movement of goods and essential staff” [emphasis added], Guidelines, para 3.
Further, the Guidelines provide clear conditions limiting Member States’ freedom in introducing new and more extensive restrictions, which in any event should be notified to the Commission and all other Member States.
One of the key components of the Guidelines is the introduction of “green lanes” – designated priority lanes for freight transport exempted from any existing weekend bans (see paras 1 and 6).
In her speech on March 16, President von der Leyen stated that “[w]e recommend to install so-called green corridors, fast lanes for the goods transport so that the traffic jams will end and that we have a fast flow of goods. This is important in keeping up the Single Market and keeping up our economy” [emphasis added].
No green lanes for Western Balkans, for now
What remains unclear is whether the Commission and the European Council envisaged said lanes to apply to third countries bordering the Union. More specifically, within the context of the Western Balkans, which are geographically encapsulated by EU external borders, this issue becomes especially pertinent.
What is the view of the Commission and the EU vis-à-vis the Western Balkans? Will they be also allowed to have access via these “green corridors” in order to have “a fast flow of goods” to keep up their economies, like their EU counterparts? A response to this essential question remains mute for now.
Other boarder management measures
Under the adopted restrictions, certain exemptions will be allowed. Thus, restrictions will not apply to (i) EU citizens returning home, (ii) long-term residents of the EU, (iii) family members of EU nationals and diplomats, (iv) essential staff (e.g. doctors, healthcare workers, nurses, researchers and experts on the virus treatment) and (v) frontier workers who commute.
The Guidelines call on Member States to preserve the integrity of the Single Market and to refrain from any unfair practices that could undermine the free movement of goods. This is particularly important in the circumstances where several Member States have already introduced their own bans. That is why the Guidelines are focused on several crucial issues outlined below.
1. Fast lanes for medical supplies and essential goods
To begin with, as stated in the Guidelines, maintaining the functionality of supply chains and emergency transport is of utmost importance to the EU. In order to secure the supply of essential goods (e.g. food, vital medical and protective equipment) green lanes/fast lanes must be established and emergency transport services must be granted absolute priority within the fast lane transport system.
The Guidelines also call for the “safe movement” of staff in the transport sector – truck and train drivers, pilots and aircrew. Member States should not impose any other restrictions to the transport of goods and passengers, unless these restrictions are transparent and relevant to suppression of COVID-19, as well as proportionate and non-discriminatory.
2. Free circulation of goods – good(s) to go
Adding to the priority transport of medical supplies and essential goods is the free circulation of such goods. Free circulation is key to maintaining availability, especially of products such as medicine, medical equipment, essential and perishable foods, and livestock. The Guidelines firmly forbid imposing any restrictions on the Single Market and they make it very clear – the supply chain must not break down.
3. Health comes first
The Guidelines also oblige Member States to provide appropriate health care to all persons at risk of spreading COVID-19. National healthcare systems must thus prioritize certain case profiles. With that said, health authorities must take measures to establish standard operating procedures and to ensure that sufficient staff is trained and provided with protective equipment.
However, whether EU institutions and Member States will rise to the challenge of containing the pandemic – or whether the Italian and Spanish scenarios will repeat elsewhere in the EU – remains to be seen.
4. Lockdown of EU external borders
The Commission also toughened up its position on the control of EU’s external borders in the Guidelines. All travelers from now on – whether EU or non-EU citizens – must submit to systematic border checks and, if necessary, to medical screenings.
But the Guidelines do not stop there. They go a step further by proposing that Member States have very broad powers to refuse entry to almost all non-EU nationals whom they deem a risk to public health. If implemented vigorously, this new policy would lead to the most restrictive travel ban since the conception of the Schengen zone.
5. The return of EU internal borders
While the temporary reintroduction of border control is a Member States prerogative, COVID-19 pandemic triggered an unprecedented number of internal borders, both in number and ins scope. At these crossings, some Member States have been carrying out medical checks on all EU citizens, resident non-EU nationals or people in transit, regardless of their reasons for travel. Others even imposed total bans.
The Guidelines remind Member States that they may not refuse entry to any of the above listed persons, but nevertheless authorize them to subject these persons to quarantine or self-isolation, thereby effectively restricting their freedom of movement. The underlying rationale for the Guidelines is, however, to attempt to reintroduce a degree of uniformity and order at the EU’s internal borders in order to safeguard freedom of movement, one of the Union’s four coveted freedoms. Whether this will succeed remains to be seen.
From all of the above, it is evident that that the European Union, and its neighbors, are facing a crisis of unprecedented proportions, which is challenging the very foundations on which the Union and its legal order was built. As the situation rapidly develops, we will follow closely for any new measures or practices and provide regular updates.
However, if you have any questions or need clarification, please do let us know at: covid19@geciclaw.com.
