Explanatory Memorandum to COM(2021)38 - Amendment of Council Recommendation (EU) 2020/1475 of 13 October 2020 on a coordinated approach to the restriction of free movement in response to the COVID-19 pandemic - Main contents
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| dossier | COM(2021)38 - Amendment of Council Recommendation (EU) 2020/1475 of 13 October 2020 on a coordinated approach to the restriction of free ... |
|---|---|
| source | COM(2021)38  |
| date | 25-01-2021 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
On 13 October 2020, the Council adopted Council Recommendation (EU) 2020/1475 on a coordinated approach to the restriction of free movement in response to the COVID-19 pandemic 1 . The Recommendation established a coordinated approach on the following key points: the application of common criteria and thresholds when deciding whether to introduce restrictions to free movement, a mapping of the risk of COVID-19 transmission based on an agreed colour code, and a coordinated approach as to the measures, if any, which may appropriately be applied to persons moving between areas, depending on the level of risk of transmission in those areas.
Council Recommendation (EU) 2020/1475 seeks to ensure increased coordination among Member States considering the adoption of measures restricting free movement on grounds of public health in the context of the pandemic. The Recommendation states clearly that when adopting and applying restrictions to free movement, Member States should respect principles of EU law, in particular proportionality and non-discrimination.
The Recommendation tasked the Commission, supported by European Centre for Disease Prevention and Control, to regularly assess the criteria, data needs and thresholds outlined therein in view of the evolving epidemiological situation and, to transmit its findings to the Council for its consideration, together with a proposal to amend the Recommendation, where necessary.
As noted in the Commission’s Communication of 19 January 2021 on a united front to beat COVID-19 2 , the turn of the year is likely to mark the beginning of the end of the COVID-19 pandemic. Thanks to pioneering science and remarkable political and industrial efforts, what is normally done in ten years was achieved in ten months and with speedy, mass vaccinations being rolled out, millions of Europeans have now been vaccinated against COVID-19.
However, while infections rise and until vaccinations are done on a scale required to turn the tide of the pandemic, continued vigilance, containment measures and public health controls will be required. The EU and Member States must act now to contain the risk of a potentially harsher third wave of infections, characterised by the more transmissible new variants of the virus, which are already present across Europe.
These new variants of the virus 3 are a real and serious cause for concern. While currently there is no evidence that these cause more severe disease, the variants appear to be somewhere between 50–70 % more transmissible 4 . This means that the virus can spread more easily and more quickly, increasing the burden on overstretched healthcare systems. This is one likely cause for the substantial rises in cases in most Member States over recent weeks.
As a result, travel will continue to pose a particular challenge. All non-essential travel, especially to and from high risk areas, should be strongly discouraged until the epidemiological situation has considerably improved.
This is supported by the recommendations issued by the European Centre for Disease Prevention and Control (ECDC) in its rapid risk assessment of 21 January 2021 5 . ECDC assessed the probability of the introduction and community spread of variants of concern in the EU/EEA as very high due to their increased transmissibility. Such an increased transmissibility was likely to lead to an increased number of infections. This, in turn, was likely to lead to higher hospitalisation and death rates across all age-groups, but particularly for those in older age groups or with co-morbidities. Consequently, ECDC considered that stricter non-pharmaceutical interventions were needed to reduce transmission and relieve the pressure on healthcare systems. Therefore, ECDC considered the impact of introduction and community spread to be high. ECDC assessed the overall risk associated with the introduction and community spread of variants of concern as being high/very high.
In order to slow down the importation and spread of the new SARS-CoV-2 variants of concern, ECDC recommended, as one of the options for response, that non-essential travel should be avoided. In addition to recommendations against non-essential travel, and restrictions on travel for those infected, travel measures such as the testing and quarantining of travellers should be maintained, in particular for travellers from areas with a higher incidence of the new variants. If sequencing is inadequate to exclude the possibility of a higher incidence of the new variants, as per guidance by ECDC on genomic sequencing, proportionate travel measures should also be considered from areas where there is a continued high level of community transmission.
As provided for in Council Recommendation (EU) 2020/1475, the Commission, supported by ECDC, has been regularly assessing the criteria, data needs and thresholds outlined in that Recommendation in view of the evolving epidemiological situation. In view of the abovementioned challenges posed by the more infectious variants of concern, the Commission considers that Council Recommendation (EU) 2020/1475 should be adapted.
Proportionate, non-discriminatory travel restrictions and testing of travellers should be maintained or reinforced, in particular from areas with a higher incidence of variants of concern. Where required, quarantine of travellers should be put in place, with appropriate exceptions for travellers with an essential function or need.
Such targeted measures aim to prevent the need for border closures or blanket travel bans and suspension of flights, land transport and water crossings between Member States, which are not justified as more targeted measures have sufficient impact and cause less disruption. The system of “Green Lanes” 6 should keep transport flows moving, in particular to ensure the free movement of goods, thus avoiding supply chain disruptions.
• Consistency with existing policy provisions in the policy area
This recommendation serves to facilitate the implemention of 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), 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(1) 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 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 and relevant available scientific evidence.
• 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.
Any limitations to the freedom of movement within the Union justified on grounds of 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.
4. BUDGETARY IMPLICATIONS
None.