03 Apr 2020

Love thy neighbour?

Coronavirus politics and their impact on EU freedoms and rule of law in the Schengen Area

Sergio Carrera / Ngo Chun Luk

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This Paper examines the legality of restrictions on intra-EU and international traffic of persons introduced in the name of COVID-19. It provides a typology of measures including the reintroduction of internal border controls, restrictions of specific international traffic modes and intra-EU and international travel bans. Many of these have been adopted in combination with declarations of a ‘state of emergency’, which affect to different degrees national checks and balances over executive action. These measures pose fundamental questions as to the raison d’être of the European Union, and the foundations of the Single Market, the Schengen system and European citizenship.
The analysis shows a complex web of parallel and incoherent national regimes restricting unilaterally the entry/exit of people, and displaying wide divergences in the conditions for people to be allowed to move in the Schengen area for legitimate reasons. And while the Schengen rules envisage the possibility to reintroduce internal border checks, Schengen Ministries of the Interior do not have carte blanche. They need to justify that these policies are based on scientific analysis backing up not only their suitability and necessity, but also that they don’t disproportionately impact on essential fundamental rights and rule of law guarantees, including those that are non-derogable even in times of declared crises. Our assessment shows that this has not been the case. Many of the cross-border mobility restrictions unlawfully interfere with EU freedoms as well as undercutting the checks and balances envisaged in EU and national law.

The Paper concludes by recommending the EU adopt an “EU-wide Schengen Stress Test”, which would provide a periodic country-by-country ‘quali-quantitative’ assessment of the state of free movement, Schengen rules and asylum legislation across the Union.

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