Explanatory Memorandum to COM(2020)499 - Coordinated approach to the restriction of free movement in response to the COVID-19 pandemic - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2020)499 - Coordinated approach to the restriction of free movement in response to the COVID-19 pandemic. |
|---|---|
| source | COM(2020)499  |
| date | 04-09-2020 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
The right of EU citizens to move and reside freely within the European Union is one of the Union’s most cherished achievements, and an important driver of its economy.
To limit the spread of the COVID-19 outbreak, the Member States 1 have adopted various measures, some of which have had an impact on citizens’ right to move freely across the European Union. These measures often included restrictions on entry to another Member State or other specific requirements (such as undergoing quarantine) applicable to cross-border travellers, including those moving for economic purposes, such as workers and entrepreneurs.
While the measures were intended to safeguard the health and wellbeing of citizens, they have had serious consequences for the freedom of movement inside the Union, with knock-on effects on the internal market. Restoring freedom of movement, while protecting public health, is a priority, whether for work, family reasons, or leisure. Exercising free movement rights, conferred directly by the Treaties on Union citizens, should remain possible while limiting the reintroduction of the virus to areas where it has been brought under control.
Since the outbreak of the pandemic, the Commission has worked closely with Member States to ensure a gradual return to free movement. In March 2020, the Commission issued Guidelines for border management measures to protect health and ensure the availability of goods and essential services 2 and Guidelines concerning the exercise of the free movement of workers during COVID-19 outbreak 3 , containing guidance on the free movement of frontier workers, seasonal workers and self-employed persons exercising critical occupations.
On 13 May 2020, the Commission adopted, as part of a package of guidelines and recommendations to help Member States gradually lift restrictions on free movement, a Communication towards a phased and coordinated approach for restoring freedom of movement and lifting internal border controls 4 , referring also to the flexibility to reintroduce certain measures if required by the epidemiological situation.
On 11 June 2020, the Commission adopted a Communication to the European Parliament, the European Council and the Council on the third assessment of the application of the temporary restriction on non-essential travel to the EU 5 , in which it strongly encouraged Member States to finalise the process of lifting restrictions to free movement within the EU as soon as the epidemiological situation allows it.
On 15 July 2020, the Commission adopted a Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on short-term EU health preparedness for COVID-19 outbreaks 6 .
On 7 August 2020, the Commission’s services sent an administrative letter to the Member States, in which they recalled principles applicable to restrictions and limitations to free movement to inform possible decisions on pandemic-related restrictions to free movement. In accordance with the principle of proportionality, any limitations to this right must be necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedom of others. The letter also aimed at promoting coordination and ensuring clarity and predictability for citizens and businesses.
Further progress and additional coordination efforts among Member States remain necessary. Taking into account the evolution of the pandemic, some Member States have maintained or reintroduced certain restrictions to free movement within the EU. Unilateral measures have resulted in significant disruptions. While entry bans have to a large extent been lifted in the meantime, businesses and citizens are still confronted with a wide array of diverging measures, which are often adopted at very short notice, are based on very different criteria, or not sufficiently coordinated with other Member States. This has resulted in a high level of uncertainty for both citizens and businesses.
Given the lessons learned from the earlier stages of the pandemic, a well-coordinated, predictable and transparent approach to the adoption of restrictions on freedom of movement is needed. Preventing the spread of the virus, safeguarding the health of citizens as well as maintaining free movement within the Union, under safe conditions, is crucial for the efforts to start safely re-building the EU economy and to ensure a smooth functioning of the internal market. Special attention is needed to ensure unrestricted cross-border economic activity.
• Consistency with existing policy provisions in the policy area
This recommendation serves to implement the existing provisions related to restrictions of the freedom of movement on grounds of public health.
• Consistency with other Union policies
This recommendation is in line with other Union policies, including those regarding public health and internal border controls.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The Treaty on the Functioning of the European Union (TFEU), and in particular Articles 21(2), 46, 52(2), 168(6) and 292.
• Subsidiarity (for non-exclusive competence)
Article 292 TFEU enables the Council to adopt recommendations. According to this provision, the Council shall act on a proposal from the Commission in all cases where the Treaties provide that it shall adopt acts on a proposal from the Commission.
This applies in the current situation, as a consistent approach is necessary to avoid further disruptions caused by unilateral and not sufficiently coordinated measures restricting free movement within the Union. Article 21 i TFEU stipulates that 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 effect to them. If action by the Union should prove necessary to attain this objective, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt provisions with a view to facilitating the exercise of these rights.
Pursuant to Article 46 TFEU, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, issue directives or make regulations setting out the measures required to bring about freedom of movement for workers, as defined in Article 45.
Pursuant to Article 49 i TFEU, restrictions on the freedom of establishment shall be prohibited. Pursuant to Article 56 i TFEU, restrictions on freedom to provide services within the Union shall also be prohibited. This includes restrictions on the freedom to receive services in another Member State.
By virtue of Article 52(2) TFEU, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, issue directives for the coordination of provisions intended to provide special measures regarding the exercise of the freedom of establishment adopted on grounds of public policy, public security and public health. In accordance with Article 62 TFEU that provision applies equally to services.
Pursuant to Article 168(6), the Council, on a proposal from the Commission, may also adopt recommendations for the purposes of ensuring a high level of human health protection in the definition and implementation of all Union policies and activities.
• Proportionality
The adoption of unilateral or uncoordinated measures is likely to lead to restrictions on free movement that are inconsistent and fragmented, resulting in uncertainty for Union citizens when exercising their EU rights. The proposal does not go beyond what is necessary and proportionate for achieving the intended objective.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
n.a.
• Stakeholder consultations
The proposal takes into account the discussions held at regular intervals with Member States since the first temporary restrictions were implemented, the information available on the evolving epidemiological situation, relevant available scientific evidence and direct feedback from Union citizens, including in the context of the numerous letters addressed to the European Commission.
• Impact assessment
n.a.
• Fundamental rights
Freedom of movement is a fundamental right enshrined in Article 45 of the Charter of Fundamental Rights of the European Union. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedom of others. Article 21 of the Charter prohibits restriction on ground of nationality within the scope of application of the Treaties.
In line with Directive 2004/38/EC of the European Parliament and of the Council 7 , free movement rights can be restricted to protect certain public interests, namely the protection of public health, public policy and public security. Such limitations must be applied in compliance with the general principles of EU law, in particular proportionality and non-discrimination as well as respect for fundamental rights. Measures should be based on public health considerations and cannot therefore extend beyond what is strictly necessary to safeguard the public interest that justified their adoption.
Any limitations to the freedom of movement within the Union justified on grounds of public policy, public security or public health must be necessary, proportionate and based on objective and non-discriminatory criteria. They must be suitable for securing the attainment of the objective that they pursue; and not go beyond what is necessary in order to attain that objective.
This Recommendation should not be understood as facilitating or encouraging the adoption of restrictions to free movement put in place during the pandemic. Rather, it seeks to provide a coordinated approach in the event that a Member State were to decide to introduce such restrictions. The decision as to whether to introduce restrictions to free movement remain the responsibility of the Member States, which have to act in compliance with Union law. Equally, Member States retain the flexibility not to introduce restrictions even if the criteria and thresholds outlined in this Recommendation are met.
4. BUDGETARY IMPLICATIONS
Contents
5. OTHER ELEMENTS
• Detailed explanation of the specific provisions of the proposal
A coordinated approach among Member States requires joint efforts on four key points: the application of common criteria and thresholds in deciding whether to introduce restrictions to free movement, the mapping of common criteria using an agreed colour code, the adoption of a common approach as to the measures applied to persons moving to and from areas identified as higher-risk, and providing the public with clear, comprehensive and timely information about any restrictions and accompanying requirements.
To ensure that the process is manageable and transparent, the proposal focuses on three criteria, namely the 14-day cumulative COVID-19 case notification rate, test positivity rate, and the testing rate. These criteria should then be applied to the different areas, ideally Member States’ regions. Only areas with a testing rate of more than 250 COVID-19 tests per 100 000 population should be assessed according to these criteria, to ensure that sufficiently robust data is available.
Using these criteria, restrictions could be applied, if at all, to regions with a 14-day cumulative COVID-19 case notification of 50 or more and a test positivity rate of 3% or more. Restrictions could be applied to regions where the 14-day cumulative COVID-19 case notification rate is more than 150 per 100 000 population even if the test positivity rate is below 3%. The criteria and thresholds outlined are based on extensive discussions with and data made available by Member States.
Using data provided by the Member States, the European Centre for Disease Prevention and Control (ECDC) will produce regularly updated maps, broken down by regions, that would indicate whether the thresholds outlined above are reached in a given area.
Where neither the threshold for the 14-day cumulative COVID-19 case notification nor the threshold for the test positivity rate is reached, the region should be marked as ‘green’. Where only one of the thresholds is reached, the regions should be marked as ‘orange’. Where both thresholds are reached, the region should be marked as ‘red’. Where insufficient data is available or the testing rate is not met, the region should be marked as ‘grey’.
The maps developed by ECDC should facilitate a coordinated approach to Member States’ own decision-making processes, and ensure that any decisions taken by the Member States are consistent and well-coordinated.
By way of example, Member States could, using these criteria and thresholds, apply restrictions from an area
(a)with a 14-day cumulative COVID-19 case notification rate of 70 and a test positivity rate of 5.5% (‘red area’); or
(b)with a 14-day cumulative COVID-19 case notification rate of 175 per 100 000 population, regardless the test positivity rate (‘red area’).
(c)with a 14-day cumulative COVID-19 case notification rate of 20 and a test positivity rate of 2.5% (‘green area’);
(d)with a 14-day cumulative COVID-19 case notification rate of 55 and a test positivity rate of 1.5% (‘orange area’, submission of passenger locator forms or testing may apply);
(e)with a 14-day cumulative COVID-19 case notification rate of 20 and a test positivity rate of 4.5% (‘orange area’, submission of passenger locator forms or testing may apply).
This map should then serve as the basis for Member States’ decision-making processes, which would be coordinated, as much as possible, according to an agreed timeline:
(a)Each week: the European Centre for Disease Prevention and Control publishes an updated version of the colour-coded map.
(b)Thursday: Member States intending to apply restrictions to persons travelling from an area classified as ‘red’ or ‘grey’ inform other Member States and the Commission of its intention.
(c)Monday: the measures notified by a Member States should enter into force, save for exceptional circumstances.
Following this agreed timeline would ensure coordination among Member States and increase predictability, legal certainty and compliance that would benefit citizens and businesses.