EU Court of Justice: yes to swabs and travel bans, but with proportionality. A Pilatesque sentence
A European ruling authorizes the restrictions, but sets limits which, however, will all need to be interpreted.
The Court of Justice of the European Union (CJEU) issued a ruling on 5 December 2023, confirming the validity of the travel bans and diagnostic testing and quarantine obligations adopted during the COVID-19 health emergency, as reported by Italy Today .
In a pandemic situation, a European Union state has the right to ban non-essential travel to other states classified as high-risk areas (red zones) for health reasons. Furthermore, it is legitimate to require people entering the territory of a state to undergo diagnostic tests and observe quarantine.
However, to be compliant with legitimacy, these limitations must be reasoned, clear, precise, non-discriminatory, proportionate and must be subject to the possibility of appeal before a judge or an administrative authority. The case that led to this ruling involves Belgium, which, like other countries, has banned non-essential travel to and from red zones and imposed testing and quarantine periods on incoming travellers.
The dispute arose when a travel agency canceled all scheduled trips between Belgium and Sweden, the latter temporarily placed in the red zone. Contesting the Belgian government's decision, the agency filed a lawsuit and requested compensation for the damage suffered for the canceled trips.
The Cgue was called to evaluate the legitimacy of the Belgian legislation with respect to the European legal system, in particular articles 23 and 25 of the Schengen Borders Code. The Court clarified that in times of crisis, a contagious disease such as COVID-19 can be considered a threat to public order or internal public security, thus justifying limits on the movement of people.
The CJEU ruled that European Union states can ban non-essential travel to or from other states classified as a “red zone” and impose testing and quarantines to combat a pandemic such as COVID-19. However, these measures must be adopted with general discipline, adequate motivation and contain clear and precise rules, providing for the possibility of administrative and jurisdictional appeals to contest any discrimination.
The Court emphasized the importance of the principle of proportionality: the measures adopted must be limited to what is necessary with respect to the objective of containing the pandemic, balancing the interests involved against the gravity of the interference with the rights and freedoms of the persons concerned. EU decisions are applicable to all EU states.
The problem is that the principle of proportionality and non-discrimination are principles that must be evaluated by a judicial authority, possibly even an administrative one, but, in the meantime, citizens' freedom of movement is severely limited. It would have been more protective to define in a more restrictive and rigid way the cases in which personal freedom can be limited.
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The article EU Court of Justice: yes to swabs and travel bans, but with proportionality. A Pilatesque ruling comes from Scenari Economici .
This is a machine translation of a post published on Scenari Economici at the URL https://scenarieconomici.it/corte-di-giustizia-ue-si-a-tamponi-e-divieti-di-viaggi-ma-con-proporzionalita-una-sentenza-pilatesca/ on Wed, 06 Dec 2023 10:30:31 +0000.