Introduction

Practically all the European Union’s and the Schengen area’s members decided to enact unilateral movement restriction measures for both citizens and residents in the Member States in response to the COVID-19 pandemic. The development of the European economy, which is based on the continuous movement of goods, people and, specially, workers, as well as citizen fundamental rights were both hampered by this situation. Such restrictions to the free movement of people have been unprecedented since the start of the regional integration process based on the single market idea.

This chapter uses a variety of bibliographic sources, including the primary sources of European Union Law, scholarly classics, and the database of the European project EXCEPTIUS. The literature on freedom of movement during the COVID-19 pandemic in the European region has focused on the various restrictions and measures implemented by governments to slow down the spread of the virus. These measures have included border closures, quarantine requirements for travellers, and mandatory testing for COVID-19 upon arrival.

The restrictions have had a significant impact on the free movement of people within the EU, with many individuals and businesses facing economic and personal disruption as a result. The literature has also shown that these measures have disproportionately affected certain groups, such as low-income workers and individuals from marginalized communities. Many studies have pointed out that the restrictions have also led to a decline in cross-border travel and trade, which has had a negative impact on the economy.

This chapter aims to analyse the different implementation of measures carried out by countries in the European region; the diversity of measures, as well as the different degree of restrictions taken by the states, shows us that the response to this problem, regarding the free movement of people, has not only been inconsistent but most of the time, ineffective.

Freedom of Movement in the EU Member States

Legal Development

The historical and legal development of free movement of people at the European level originate from the very beginning of the European Coal and Steel Community (the precursor of the current European Union). This regional organization developed around the liberalization of tariffs of these two raw materials and only recognized free movement for workers; however, the evolution of the concept and rights associated with this freedom would evolve around a concept that bridged the gap between national borders and international borders.

Today, it is governed by Article 21 of the Treaty on the Functioning of the European Union, which states that “Every citizen of the Union shall have the right to move and reside freely in the territory of the Member States, subject to the limitations and conditions provided for in the Treaties and in the provisions adopted for their application,” as well as Article 3 of the Treaty on European Union, concerning the goals of the Union itself (Schade, 2021).

Moreover, the worldwide recognition of the right to freedom of movement is encapsulated in Article 13 of the 1948 Universal Declaration of Human Rights. The definition is completed by Articles 12 and 13 of the International Covenant on Civil and Political Rights; however, General Comment No. 27 of the United Nations Human Rights Committee provides a more in-depth explanation of the content of this human right. The Human Rights Committee develops and comments on the rights enshrined in Articles 12 and 13 of the ICCPR in this General Observation, establishing, among other things, that free movement of people is an essential condition for the free development of the person and that every person who is legally within the territory of a State has the right to move freely within it. This right, inextricably linked to the concept of human mobility, includes not only the aforementioned freedom of movement within a country but also the option of choosing residence within a State, freely leaving or returning to it (United Nations, 1967).

In the European Union, however, the concept of freedom of movement encompasses the economic expansion of the Schengen area. Despite this, the significance of European social ideals has increased as a result of the European Union’s progress toward a more connected structure (Jiménez Garcia, 2014), therefore, freedom of movement now also has a social significance.

As a result, while it is a human right with great prodigality and breadth, it is not, like the vast majority—if not all—of the rights enshrined in the Universal Declaration of Human Rights, a right of absolute nature. This means that, while there is constant influence on the common characteristics that underpin Human Rights, such as their universality, indivisibility, and interdependence, their enjoyment in any circumstance free of State interference or limitations is only applicable to the prohibition of torture and inhuman or degrading treatment (Ramji-Nogales & Goldner, 2020).

The complete enjoyment of this right may be slightly restricted, as is common in international law and in regional European law, but such limitations or interference must be fair in light of the individual circumstances and in conformity with the terms and purposes of this right.

Most of the doctrine agrees that freedom of movement is the most well-known and respected benefit of EU citizenship. The mobility regime applicable to EU residents and their family members, which distinguishes them from citizens of third countries, is characterized by the ability to travel freely, problem-free, and without being burdened by paperwork, as well as the freedom to reside in another EU state (Guild, 2020b). EU residents do not need to meet any additional conditions in order to enter another EU country and stay there for the first three months. The sole requirement is a valid ID or passport. EU workers are entitled to the same treatment as national workers under EU law, and their employment in another EU state is not subject to work permits or quotas (Article 45 TFEU). The elimination of internal border controls within the Schengen area and the priority given to EU free movement legislation by the Schengen Borders Code, particularly while crossing borders, are further indications of the advantage enjoyed by EU nationals (Guild et al., 2019).

Due to the return of internal border controls and the imposition of outright travel bans or restrictions in response to the pandemic, EU members’ freedom of movement has been severely restricted for the most of the year 2020. Reports of EU citizens being arrested at internal Schengen borders as a result of state border closure activities cast doubt on the utility of EU citizenship and the right to free movement in times of crisis. Similar concerns were voiced when the EU originally failed to respond swiftly enough to the rise of national law-based restrictions. In addition, the closure of internal EU borders has revealed how dependent the EU economy is on the labour of EU migrants, a situation made worse by the installation of an EU travel ban on its exterior borders.

National travel restrictions and prohibitions are permissible under EU law so long as they comply to the proportionality principle and do not discriminate against residents of other Member States residing in the host Member State. Transit restrictions for EU citizens and residents returning to their Member State, as well as exemptions to entry bans that apply only to nationals and not to EU citizens residing in other Member States, would therefore violate EU law.

Restrictions to Mobility

The free movement of people has a unique significance in the context of the European integration process, and it can also be restricted or limited, although the terminology used in European legislation (both in the Original Treaties and in derived law) is “proportionality” and not “reasonableness”. A priori, it is vital to assess the activities of the various European states regarding containment measures for the population and the pandemic. This investigation reveals that two groups of states have decided to restrict this right.

Within the Schengen area, an initial set of 17 states implemented procedures to regulate their internal borders. These sorts of actions, which have not been seen since the founding of “a Europe without internal borders”, not only brought back border controls with the Union’s Member States but also strengthened their borders, if they ever had any, with third countries. This kind of measure would render the Schengen area ineffective a few weeks after the start of the pandemic. Furthermore, even though the “Schengen Borders Code” does not make any express mention of the possibility of reintroducing controls at internal borders, the European Commission, prior to the exceptional situation caused by the pandemic, decided to approve the restrictions imposed by the Member States by recognizing that a situation of uncontrollable contagious disease, such as the one caused by the pandemic (European Commission, 2020a).

The second group of states is comprised of those that have implemented restrictive measures for certain forms of transportation, including the suspension of travel by plane, train, or sea, as well as the prohibition of entry and exit from or to national territories. We have found ourselves with a vast catalogue of measures that are not only different from one another but are also frequently unconnected or contradictory, which is understandable given the disparate nature of the decisions that have been made by the various Member States of the Union. As a result, we can see that a large percentage of the prohibitions to enter and leave the national territory included exceptions for citizens of the country, people who had permanent residence, or foreigners who had passed a test; however, when applied to other states, these exceptions were limited to those that were justified by “valid reasons”.

This legal “short circuit”, which has been in effect in a community-based legislative area since the 1990s, is based on a criterion that is difficult to articulate, such as the notion of “public health”. The Schengen Borders Code, the Treaty of the Union in its wording from Lisbon, and other norms of derivative law of the European Union all make an exception for the internal borders of the Union, which have become detached and ethereal as a result of the European integration process and the entry into force of the Schengen agreement. This is because the internal borders of the Union are a consequence of the European integration process. In this sense, these principles clearly empower states to impose restrictions to the free movement of people for reasons of public health so long as they are administered in a manner that is non-discriminatory and appropriate to the issue at hand.

In this context, it is important to refer to Directive 2004/38/EC of the European Parliament and of the Council of April 29, 2004, which directly addresses this matter in its Chapter VI. This directive states that individual or collective restrictions on the right of free movement in Europe can only be invoked for reasons of serious risk to public health, as those terms are defined by the World Health Organization, and only under the condition that the disease in question is either infectious, parasitic, or of another type. In other words, the disease in question must meet all three.

On March 11, 2020, the WHO proclaimed COVID-19 a global pandemic. However, by February 2020, a number of EU states, notably Italy, were already reporting a dramatic increase in COVID-19 cases. Lombardy (among the wealthiest regions of the country) was hit the worst and had the most trouble providing medical care to victims. As COVID-19 took hold in February and March 2020, one of the first steps EU governments took was to close their international borders. There was a significant decrease in air traffic (Remuzzi & Remuzzi, 2020).

Ferry, bus, and train transportation soon followed. Despite the EU Heads of State or Government’s March 10 announcement on the necessity for a coordinated EU action, these international border procedures began in a very disorganized manner (Zemskova, 2020). Extremely few states closed all international (or intra-EU) borders. However, the permitted motives for overseas travel varied considerably. Among the difficulties was getting agreement on permissible travel for essential and non-essential personnel (Paterlini, 2020). The European Commission was especially active in gaining Member State agreement that all EU (and Schengen-associated states) citizens and their family members must be excluded from temporary travel restrictions in order to return home. Schengen Member States have also begun to implement border controls on intra-Schengen travel. Here, both the Schengen Agreement and the Free Movement Directive were involved (Davies, 2020). Schengen Borders Code does not permit Member States to prohibit entrance to EU nationals based on public health hazards, although the Free Movement Directive does (Eckardt et al., 2020).

As it can be seen in the Fig. 10.1, virtually all the members of the Union, as well as the rest of Europe, have taken measures to alleviate COVID-19. These measures have led to legitimate restrictions and prohibitions on the entry and exit of people from the country, as well as travel restrictions for citizens (Goldner Lang, 2021). Moreover, the kind of restrictions were not consistent or coordinated, especially during the first wave of the pandemic, which would lead to an array of different policies and positions regarding this topic.

By analysing the data collected by the EXCEPTIUS project one can see that—with slight differences—there were seven different policies regarding freedom of movement that range from no travel at all (including between countries and within the same country) to travel restrictions between certain countries.

Fig. 10.1
A map of Europe highlights the countries in different shades.

Travel restrictions between countries. (Source: EXCEPTIUS dataset, own rendering)

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Although in the past, and primarily for reasons of security, some European States have asserted exceptions to the general rule of free movement at the European level, the health crisis caused by COVID-19 has led to an unprecedented closure of the internal borders of the Union, or “soft borders”, such as those of the community territories like Norway or Switzerland, which has ended up making a dent in the European systems of free movement and border management. COVID-19 has led to an unprecedented closure of the internal borders of the Union, because various states have chosen various solutions according to their priorities, which are often dictated by economic considerations. When confronted with such a disparity and taking into consideration the negative effects that the pandemic situation had on the European economy and markets, this would cause the European Union to try to give a more or less coordinated response in terms of mobility within and outside of the Union. This would be as a result of the pandemic situation (Montaldo, 2020).

When Europe became the epicentre of the pandemic in March 2020, politicians and public health agencies scrambled to identify acceptable and effective solutions. The EU obligation stipulated in Article 9 of the Treaty on the Functioning of the European Union (TFEU) compels the EU (including the Member States to achieve a common protection on human health, however, seems to have been missing from the responses). Instead, borders and their control became the subject of major political debate across Europe as a potential arena for implementing effective steps to prevent the pandemic’s spread (Guild, 2020a).

While the more intrusive COVID-19 measures (lockdown, business closures, etc.) have been implemented within EU states (see Chazel’s chapter), limitations on cross-border movement have been significant. In the European Union, this has relevant ramifications for EU law regarding border controls, particularly the free movement of individuals and the absence of border controls between Schengen states. It also entailed border restrictions with third countries, such as the European Free Trade Area (EFTA and Switzerland), the EU surrounding states, the United Kingdom (which left the EU on January 1, 2020), the Western Balkans, and Turkey. While EU law distinguishes between Schengen borders, where no controls are conducted on persons, non-Schengen EU borders, where controls are conducted but are limited to identity checks and border controls with third countries, and external borders with third countries (non-EFTA or Swiss), many Member States and EU institutions abandoned many of these distinctions in practice.

Indeed, the distinction between border controls between states (inside the Schengen area, the European Union, the European Free Trade Association, or outside) and internal limitations on travel grew increasingly muddled. Two approaches—public health and public policy—were implemented concurrently, although not necessarily in ways that were mutually consistent or consistent with the Article 9 TFEU commitment. While the public health approach to movement of persons is focused on guaranteeing identification of those in need of treatment or possibly carrying the disease, giving treatment as promptly as feasible, or quarantine, the public policy approach is based on refusing admission to persons who pose a risk, regardless of what that may mean in terms of the spread of the pandemic in surrounding or origin states.

The initial criticism of the European Union’s response focused on its failure to match the recommendations for collective actions to the criteria of legality and proportionality under European Union law (Carrera & Chun Luk, 2020). Despite the preceding, an attempt was made to uphold the historic right to freedom of movement enjoyed by European citizens and their families. In relation to the shared borders of the Union, members were urged to implement travel and access limitations for “non-essential” employees from third countries between March and June 2020, with a progressive removal of restrictions dependent on the epidemiological status of the countries of origin (European Commission, 2020b).

This type of limits would be tied to the general requirement, based on international law, to readmit their nationals in any circumstance, as well as the obligation to respect this “right of return” not just for citizens but also for family members and other benefits of residence in union members. In this approach, not only would the fundamental rights of European residents be honoured, in terms of the right of return to the country of residence, but also the European law itself, under the rubric of the rights associated with European citizenship. In addition to diplomatic and consular protection, it includes this right to a safe return.

While European nationals continued to receive favoured or privileged treatment based on a probable departure—in some situations—and future return to their home country—in any case—intra-community mobility was not at the same level.

In the first few months of the pandemic, a small number of states would restrict, if not outright forbid, entry and leave, as seen in the Fig. 10.2. In the early days of the COVID-19 pandemic, many European countries implemented strict restrictions on freedom of movement to slow the spread of the virus and protect public health. Denmark, France, Italy, Malta, the Netherlands, Portugal, and Spain were among the countries that took such measures.

For example, all of these countries closed their borders to non-essential travel, and imposed a nationwide lockdown, which included requiring citizens to stay at home except for essential activities such as grocery shopping and exercise. Public gatherings were also banned, and businesses were forced to close or limit capacity. This was done in an attempt to slow the spread of the virus and protect public health. Additionally, some countries also introduced curfew and restricted the movement of people from certain areas.

As the situation progressed, these countries have adjusted their restrictions accordingly, based on their own unique situation. Some have lifted the restrictions, some have implemented targeted measures, and others have introduced a phased approach. While some have opened up their borders for travel and have lifted the curfew, others have continued to enforce strict measures. Each country has been closely monitoring the situation and taking decisions accordingly.

This would even prompt some nations to choose a complete closing of their borders, which has not occurred since the European unification project began. We can demonstrate that European nations have attempted numerous, frequently contradicting solutions to the problem of boundaries. Thus, certain countries would opt for strict border closures, which, in some cases like France, could include overseas territories, or the DOM-TOM (départements d’outre-mer and territoires d’outre-mer), while in other cases it would focus on specific bordering territories, such as the “hard closure” of the border between Spain and Morocco along the external border of the autonomous cities Ceuta and Melilla.

Fig. 10.2
A table has 4 types of border closures and the countries corresponding to it. A map of Europe highlights Finland, Estonia, France, Switzerland, Portugal, Spain, Croatia, and Romania.

Border closures. (Source: EXCEPTIUS dataset, own rendering)

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In the most extreme circumstances, we have a classification of countries that not only impose travel restrictions to and from their own country but also prohibit movement within the same state. This form of prohibition could range from a total closure of bordering national regions, provinces, or geographical divisions—such as autonomous communities in Spain or the Länder in Germany—to the prohibition of circulation between neighbouring municipalities in the case of Spain. In some instances, or in conjunction with the aforementioned, checkpoints, control points, or security controls between the various parts of the country would be included, as shown in Fig. 10.3 below.

Checkpoints are physical barriers set up to monitor and control the movement of people. During the pandemic, checkpoints have been used to prevent the spread of the virus by restricting travel between regions with high infection rates and those with lower infection rates. Checkpoints typically involve temperature checks, health screenings, and other measures to assess the risk of individuals carrying the virus.

Travel bans, on the other hand, are measures implemented by governments to completely ban non-essential travel to and from specific countries, regions or cities. These bans are put in place when a region is experiencing a high rate of COVID-19 cases and the government wants to prevent the spread of the virus to other areas. Travel bans can also be imposed on individuals who have been in close contact with infected individuals or who have recently travelled to high-risk areas. The purpose of travel bans is to slow down or stop the spread of the virus by limiting the movement of potentially infected individuals.

Fig. 10.3
A table has columns of 3 types of restrictions on internal travel and the countries corresponding to it. A map of Europe highlights the countries as no hard limitations, interregional travel bans, checkpoints, and interregional travel bans + checkpoints.

Restrictions on internal travel. (Source: EXCEPTIUS dataset, own rendering)

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The Lifting of Restrictions

Despite all these constraints, we discovered that many states would prefer to remove mobility or access restrictions for employees classified as “essential” by ESCO (European Skills, Competencies, Qualifications, and Occupations). This categorization encompasses a vast array of vocations at all levels of expertise, including health professionals, scientists working in health-related subjects, food manufacturers and food preparers, maintenance workers and transportation workers. This group of workers in crucial occupations is exceptional in that it transcends the legal distinctions between regular and unemployed workers. This includes regular mobile employees, frontier workers, posted workers, and, under certain circumstances, seasonal workers who perform vital jobs (Anderson et al., 2020).

In a number of EU nations, the agricultural and food industries have proven to be especially vulnerable. Therefore, seasonal agricultural workers who conduct essential harvesting, planting, or tending duties are regarded as performing essential labour (European Commission, 2020a). To enable border crossings with a consistent flow of border workers and posted workers, the Commission encouraged Member States to create specific procedures for seasonal workers. The proposed solution would include the construction of so-called special border corridors by some Member States for thousands of seasonal employees, a radical departure from the common view that the right to free movement of persons must be temporarily abandoned for the benefit of public health.

In addition, the way such mobility lanes were constructed and arranged, without taking public health precautions into account (Bejan, 2020), is inconsistent with existing measures against COVID-19, calling into question their adequacy. On the other hand, if it had been possible to organize such mobility corridors while adhering to all public health standards, one cannot help but wonder why it would not have been possible to do the same on a larger scale, thereby calling into question the need for mobility restrictions within and between European states.

In addition, there are divergent opinions regarding the reasonableness of travel restrictions and bans, taking into account other competing interests, that is, whether they justify the degree of interference with EU free movement. The answer to this question can vary depending on a society’s level of wealth and its capacity to withstand the economic consequences of lockdowns. This explains why, in the summer of 2020, a number of EU Member States whose economies depend on tourism decided to loosen travel restrictions and bans, despite the fact that a number of them face a higher infection rate than in the winter or spring of 2020. In most cases, these are countries whose GDP depends to a large extent on tourism, such as Spain, where tourism represents approximately 13% of its GDP, or other countries such as Portugal, Italy, Greece, France or Italy with percentiles close to 10% (OECD, 2020).

Instead of evaluating national initiatives that promote mobility inside the EU to ensure compliance with EU legislation, the EU’s approach was to protect economic interests and the integrity of the internal market. Restrictions on intra-EU mobility and a restriction on employee travel within the EU have highlighted the crucial role migrant workers will play in the economy, with some industries at risk of significant disruption in the case of labour shortages (Fasani & Mazza, 2020). The Commission considered a number of declarations specifying certain groups of individuals whose migration should not be restricted to vital occupations (European Commission, 2020b). EU citizens continued to hold a special status while performing crucial and necessary jobs.

Conclusion

The free movement of people has a unique significance in the context of the European integration process, and it can also be restricted or limited, although the terminology used in European legislation (both in the Original Treaties and in Derived Law) is “proportionality” and not “reasonableness”. A priori, we can analyse the actions of the various European states in terms of population and pandemic containment measures, such that we can identify two groups of states that decided to implement restrictions on this right.

The application of the proportionality principle to COVID-19-alleviating policies that restrict the free movement of people creates particular challenges. Given the inherent scientific ambiguity underlying COVID-19, it can be difficult to determine if a given restrictive measure, such as the introduction of border restrictions or a travel ban, is proportional to the amount of human health protection it offers. Before the eventual emergence of another global sickness or pandemic.

It is far more difficult to evaluate if travel limits or bans and border controls meet rigorous requirements of need and proportionality, despite the fact that they are plainly adequate for protecting public health and aiding in the reduction of virus infections. Reduce the number of personal contacts and transmissions of the SARS-CoV-2 virus. The level of knowledge about COVID-19 at the time that the majority of EU Member States decided to impose strict travel restrictions and bans was insufficient and inconclusive to determine with certainty that any less restrictive alternative measures would protect the interests of public health with the same level of effectiveness, which calls into question whether the necessity criterion has been met, especially when we consider the disparity in decision-making among EU Member States.