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Free movement of persons? Then why are the EU Member States now capable of closing their borders?

One of the fundamental goals of the European Union is the establishment of an internal market, which, according to the definition of Article 26(2) of the Treaty on the Functioning of the European Union (TFEU)1, comprises an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured. Therefore, the free movement of persons is an essential freedom for the existence of the European Union. There are separate provisions regarding the free movement of workers within the EU and the free movement of persons in general. The aim of this blog post is to explain how the free movement of persons in general works (meaning workers, in particular, will not be addressed) and how this free movement can be limited in the context of the COVID-19 pandemic.

Disclaimer: This blog post is authored by a law student and it is made available for educational purposes and to provide a general understanding of the law, not to provide specific legal advice. By using this blog website you understand that there is no lawyer-client relationship between you and the blog website publisher. The blog website should not be used as a substitute for competent legal advice from a licensed professional lawyer.

According to Article 21(1) TFEU, every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. Article 20(1) TFEU states that every person holding the nationality of a Member State shall be a citizen of the Union. Additional details regarding how this freedom is actually applied are offered by means of secondary legislation, more precisely by means of Directive 2004/38 2 on citizens’ free movement rights.

This Directive is applicable to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members (the spouse of an EU citizen, the partner with whom the Union citizen has contracted a registered partnership, the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner and the dependent direct relatives in the ascending line, as well as those of the spouse or partner). The family members do not have to be EU citizens. The Member States must also facilitate entry and residence for family members of an EU citizen who, in the country from which they have come, are dependants or members of the household of the Union citizen or who due to serious health grounds need to be taken care of by the Union citizen. Entry and residence must also be facilitated for partners with whom the EU citizen has a durable relationship, provided that proof regarding the nature of this relationship can be offered to the authorities.

Article 4(1) of Directive 2004/38 provides EU citizens and their family members with the right to leave the territory of a Member State to travel to another Member State with the sole condition being that they have a valid identity card or passport. The second paragraph of the Article further clarifies that there is no need to obtain an exit visa or equivalent formality. Article 5(1) of that Directive provides EU citizens with the right to enter the territory of another Member State with only a valid identity card or passport. For family members that are not nationals of a Member State different rules apply and they are required to obtain an entry visa. The visa is not necessary if the family member has a residence card issued by a Member State.

Article 45(3) TFEU provides for three justifications to limit the free movement of persons: public policy, public security or public health. These justifications have also been transcribed in Articles 27-33 of the Directive and the European Court of Justice has interpreted them in a manner as restrictive as possible. 3 In the case of the COVID-19 outbreak, Article 29 of the Directive is applicable as it is a matter of public health. According to Article 29(1) of the Directive, the only diseases justifying measures restricting the freedom of movement of persons are the ones with epidemic potential according to the World Health Organisation and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host Member State.

In the case of the new coronavirus outbreak, the World Health Organisation has gone as far as declaring the disease a pandemic, therefore surpassing the criterion of disease with epidemic potential. 4 A pandemic is defined as an epidemic that is spread over a very wide area, crossing international borders and that usually affects a large number of people. 5 Up until this moment, the coronavirus outbreak has affected over 1 million people and has caused the death of over 50000 people. 6 Therefore, the potential further spread of COVID-19 in the Member States can be seen as a reason that would fit within the public health justification and the Member States restricting entry and exit on their territory is not an infringement of the free movement of persons.

A principle of international law prevents each of the Member States from actually prohibiting their nationals from entering their territory. In addition, Article 24(1) of the Directive grants the right to equal treatment between the nationals of a Member State and the Union citizens and their family members who have a right of residence in that Member State based on the Directive. Also, according to Article 29(2) of the Directive, EU citizens cannot be subject to expulsion from a Member State for the occurrence of a disease if a period of three months has passed from the date of arrival.

Right now, Member States are doing everything they consider fit to contain the spread of the virus. For example, Belgium has prohibited passengers arriving from outside the EU from entering the country and has implemented land border controls. 7 In Cyprus, nationals and residents of Cyprus must have a certificate of health stating they are free from COVID-19 that is issued within a maximum of 4 days before departure from another country and, after arrival in Cyprus, they will be placed in a 14-days quarantine. People not falling into one of those two categories are completely forbidden from entering the country. 8 The Czech Republic has prohibited travelling to high-risk countries and the entry of people coming from those States. 9 Denmark has also closed its borders for people who are not citizens or residents. 10 Also in Estonia the entry of non-resident foreigners has been prohibited. 11 In Spain, only citizens, residents and people with special circumstances are allowed to enter the country. 12

By means of measures such as these, the governments of all the EU Member States hope to flatten the curve and to be more efficient in the fight against COVID-19. To conclude, the restriction of the freedom of movement of persons is not only a measure necessary for the protection of public health but it is also a lawful measure under EU law given the current circumstances.

  1. Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47. 1. [↩]
  2. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77 2. [↩]
  3. A Reinisch, Essentials of EU Law (2nd edition, Cambridge University Press 2012) 153. 3. [↩]
  4. World Health Organisation, ‘WHO Director-General’s opening remarks at the media briefing on COVID-19 – 11 March 2020’ (Speech, 11 March 2020), accessed 28 March 2020. 4. [↩]
  5. M Porta (ed), A Dictionary of Epidemiology (6th edn, Oxford University Press 2014) 209. 5. [↩]
  6. –, ‘COVID-19 Coronavirus Pandemic’ (2020) <https://www.worldometers.info/coronavirus/> accessed 28 March 2020. 6. [↩]
  7. H Cokelaere, Belgium closes borders for ‘non-essential’ travel (March 2020), accessed 28 March 2020. 7. [↩]
  8. –, Cyprus tightens entry rules, shutting hotels over virus (March 2020), accessed 28 March 2020. 8. [↩]
  9. A Payne, The Czech Republic declares a state of emergency and closes borders to people from 15 countries hit by the coronavirus (March 2020), accessed 28 March 2020. 9. [↩]
  10. J Gronholt-Petersen and N Skydgaard, Denmark shuts its borders for one month to curb spread of coronavirus (March 2020), accessed 28 March 2020. 10. [↩]
  11. –, ‘COVID-19 and travelling to Estonia’ (March 2020) , accessed 28 March 2020. 11. [↩]
  12. S Hunter, ‘Spain closes its borders to contain spread of coronavirus’ (March 2020), accessed 28 March 2020. 12. [↩]