“Laws of Fear” in the EU: The Precautionary Principle and Public Health Restrictions to Free Movement of Persons in the Time of COVID-19

Abstract

COVID-19 has demonstrated the fragility of EU free movement rules when we are faced with an unknown virus of such magnitude and strength that it threatens our lives, health systems, economies and society. The aim of this text is to show the dynamics between the threat of COVID-19 and the rules imposed as a response to the pandemic, which have impacted the functioning of the EU internal market and the Schengen area. The text will concentrate on the application of the precautionary principle and public health restrictions, caused by COVID-19, to free movement of persons in the EU. The analysis will lead to three conclusions. First, it will be shown that the decisions to apply free movement restrictions and the logic followed in the EU COVID-19-related documents can be viewed as a triumph of the precautionary principle. Second, it will be argued that implementing the precautionary principle has a transformative effect on the application of the principle of proportionality in EU law. Finally, it will be shown that COVID-19 has emphasised and increased the difference between the conditions for the applicability of public health restrictions when compared to restrictions based on public policy and public security grounds.

I. Introduction

Fear is a terrible thing. For the past several months, fear of COVID-19 has driven our behaviour and the functioning of our societies. COVID-19 has generated fear for our lives and health, and made us dread the collapse of our health systems, economies, society and the way of life that we have known. COVID-19 has also demonstrated the fragility of EU freedom of movement rules when faced with an unknown virus of such magnitude and strength, while raising the issues of power, solidarity and trust in the system. The aim of this text is to show the dynamics between the fear of COVID-19 and the rules imposed as a response to the pandemic, which have impacted the functioning of the EU internal market and the Schengen area. The text will concentrate on the application of the precautionary principle and public health restrictions, caused by COVID-19, to free movement of persons in the EU. The analysis will show that the decisions to apply restrictions on free movement and the logic followed in the EU COVID-19-related documents were based on the precautionary principle, whose recourse enables decision-makers to adopt and legitimise restrictive measures when “scientific information is insufficient, inconclusive or uncertain” and risks to human health are high, ¹ and whose implementation transforms the application of the principle of proportionality to public health restrictions on the free movement of persons in the EU.

The discussion will show that the reactions of EU Members States and EU institutions to the pandemic have led to new insights into the functioning of public health restrictions, the principle of proportionality and the precautionary principle in EU law. The analysis will enable three conclusions. First, the restrictive mobility rules adopted as a response to the pandemic and the rhetoric used in the related EU documents can be viewed as a triumph of the much-disputed precautionary principle, even though this principle was rarely expressly mentioned as such. Reliance on the precautionary approach will be supported by examining the most important EU documents on COVID-19 and by discussing the importance of science in COVID-19 policies and the interface between science and political discretion in the adoption of precautionary measures. Second, the text will problematise the application of the principle of proportionality to restrictions of free movement of persons in the EU. By linking the precautionary principle to the principle of proportionality, it will be argued that the application of the precautionary principle transforms the test of necessity, entailed within the principle of proportionality. The discussion will show that evaluating whether public health could have been equally successfully protected by less restrictive COVID-19 mobility restrictions is particularly difficult when faced with a high degree of scientific uncertainty associated with coronavirus. Finally, it will be shown that COVID-19 has emphasised and increased the difference between the conditions for the applicability of public health restrictions, when compared to restrictions based on public policy and public security grounds. Even more so, COVID-19 has forced us to reconsider our understanding of public health restrictions, as it has certain characteristics that differentiate it from other infectious diseases we have known so far.

The text will be structured in five sections. It will follow the usual methodology for analysing measures impacting the functioning of the internal market by, first, identifying the COVID-19 restrictions impacting free movement of persons in the EU, then moving to the grounds for their justification and finally discussing them from the perspective of the principle of proportionality, while linking them with the precautionary principle. Hence, following the introduction, the second section will provide a short overview of the COVID-19 measures that restrict free movement of persons in the EU and the functioning of Schengen rules. The third section will focus on the grounds for justifying mobility restrictions and concentrate on the analysis of public health justifications. The section will contrast public health with public policy and public security justifications and reveal new characteristics of public health justifications that have emerged in the context of COVID-19. The fourth, central section will focus on the principle of proportionality and the precautionary principle and link the two principles together. The section will, first, show that the precautionary principle has been relied on in EU COVID-19 mobility-related documents. It will then explain the functioning of the precautionary principle in the context of the pandemic, by discussing the interface between science and politics, and, finally, it will reveal the impact of the use of the precautionary principle on the application of the principle of proportionality to COVID-19 mobility restrictions. The concluding section will summarise the findings.

II. Identification of COVID-19 Mobility Restrictions

Most EU Member States reacted promptly to the risk of exponential spread of coronavirus and adopted rigorous precautionary measures that resulted in unprecedented restrictions on the free movement of persons in the EU, with major consequences for the functioning of the internal market. In March 2020 almost all EU Member States unilaterally imposed a number of mobility-related measures, drastically restricting EU cross-border movement. They also enforced lockdowns, which included restrictions on intra-state non-essential movements, and temporarily closed their external borders towards third countries for most non-residents. Never in the history of the European integration, which is based on the idea of the internal market, ² has the EU been confronted with such a magnitude of restrictive measures that have called into question the viability of the internal market.

Interestingly, all mobility restrictions were adopted nationally, without being first agreed and coordinated at the level of EU institutions. ³ The European Commission was initially reserved towards this idea, but soon yielded under pressure and the reality of unilateral national restrictions implemented across the Union, and started adopting a set of soft law measures aimed at coordinating national measures and emphasising the importance of non-discrimination and proportionality. ⁴ The only exception was the closure of external borders with third countries, which was first agreed by the European Council and then implemented by each Member State separately. ⁵ Nevertheless, the fact that all EU measures were adopted as soft law instruments does not necessarily imply their ineffectiveness. As an example, the EU’s “traffic light system” for coordinating national travel restrictions related to the pandemic has been agreed by all EU Member States and adopted as a Council Recommendation with the intention of promoting transparency, predictability and free movement in safe conditions. ⁶

Restrictive measures in most EU Member States limited several aspects of the right to free movement and can be categorised into two groups. First, a wide majority of Schengen states imposed border checks on their intra-Schengen borders. By 15 July 2020, 17 Schengen states reintroduced internal border controls. ⁷ Additionally, non-Schengen EU Member States strengthened their border controls towards neighbouring Member States. Consequently, in spring 2020 the whole European territory stopped being a border-control-free area, which was a strong blow to what has always been considered as one of the most notable achievements of European integration.

The second type of COVID-19 measures restricting free movement of persons in the EU were various types of travel restrictions, suspending different forms of passenger transportation – such as flights, trains, buses and maritime transport – and bans on the entry and exit ⁸ of persons to/from national territories. ⁹ The difference in scope and rigidity of national travel restrictions and bans resulted in a spectrum of diverse and sometimes inconsistent measures across the EU. As an example, most entry bans to national territories excluded domestic nationals and residents, some excluded nationals, residents and persons confirmed negative for COVID-19, while others excluded nationals, residents and persons entering the national territory for “valid reasons”.

III. Grounds for justifying COVID-19 mobility restrictions and the need to reconsider public health justifications

Member States justified the reintroduction of border controls and the imposition of travel restrictions – including entry and exit bans to/from national territories – by COVID-19. Even though one might have thought that COVID-19 is a public health justification, this seems not to be the case in relation to the reintroduction of internal border checks. Namely, the Schengen Borders Code tolerates the temporary reintroduction of internal border checks in case of a serious threat to public policy or internal security in the respective Member State. ¹⁰ Border controls may be introduced for a limited period of time in the context of either a foreseeable event or an event requiring immediate attention. ¹¹ However, the Code does not expressly mention the reintroduction of internal border controls in case of threats to public health. ¹² Nevertheless, the European Commission seems to suggest that in an extremely critical situation, a risk posed by a contagious disease can be equated to a public policy or internal security threat. ¹³

Unlike the Schengen Borders Code, EU Treaty and secondary law rules on the free movement of EU citizens explicitly allow the justification of national restrictions on public health grounds. ¹⁴ According to the Citizens’ Rights Directive, public health grounds can be relied on only for diseases with epidemic potential, as defined by the relevant instruments of the World Health Organization, and for other infectious or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host Member State. ¹⁵ There is no doubt that COVID-19 satisfies these parameters, meaning that public health grounds can be invoked as a legitimate justification for national travel restrictions and entry/exit bans.

Consequently, the COVID-19 pandemic was used as a public health justification for all types of travel restrictions and bans. ¹⁶ Nevertheless, the possibility of relying on public health as a justification for restricting free movement of persons (as well as internal security justifications, in the context of internal border controls) does not give Member States carte blanche to impose any national restrictions in case of threats to public health. Restrictive measures are admissible only provided they satisfy the principles of non-discrimination and proportionality. Additionally, they cannot be used to serve economic ends. ¹⁷ Finally, procedural safeguards, including the right to judicial and, where appropriate, administrative redress procedures, should apply to decisions taken on grounds of public health. ¹⁸

Section IV.3 will discuss the principle of proportionality in the context of COVID-19 mobility restrictions and point to a number of problematic issues associated with the satisfaction of proportionality requirements. It will show that the scientific uncertainty associated with COVID-19 makes it extremely difficult to establish with certainty whether travel bans were proportional. Section IV.3 will also examine the proportionality of mobility corridors and point to numerous factors that need to be taken into account when considering proportionality stricto sensu. At this point, two additional points related to public health restrictions will be made.

First, the use of public health as a justification for limiting the free movement of EU citizens points to the dichotomous role of public health in the context of the pandemic. On the one hand, the application of the precautionary principle to COVID-19 policies in a number of EU documents renders public health not just a national, but an EU value – a value which, according to the Commission, has become an overriding EU priority. ¹⁹ On the other hand, public health is used as a national justification to limit another important EU value – free movement of persons. This is certainly not the first time that a particular national value is also recognised as an EU value. After all, the fact that public health has been accepted by EU law as one of the grounds for justifying national restrictions of free movement, confirms the fact that it has been recognised as an EU value. However, the COVID-19 pandemic has been the first time in EU history that public health has been used simultaneously by all EU Member States to justify free movement restrictions, and this is what makes reliance on this value so unique in the context of EU law. Such a dual role of public health – as an EU value and a national value used to restrict another important EU value – points to the balancing exercise that is taking place in the context of the pandemic. The EU aims to protect both public health and free movement interests, which are mutually exclusive: the more public health is protected by imposing national travel restrictions and bans, the less free movement there is. On the other hand, the choice of national precautionary measures restricting free movement of persons shows that Member States take the view that the more free movement is allowed, the more public health is jeopardised.

Second, COVID-19 has emphasised and increased the difference between the conditions for the applicability of public health restrictions, when compared to public policy and public security restrictions. Even more so, COVID-19 has forced us to reconsider our understanding of public health restrictions, due to the fact that it has certain characteristics that differentiate it from other infectious diseases we have known in the past. Certain differences between public health restrictions, on the one hand, and public policy and public security restrictions, on the other hand, are visible in the Citizens’ Rights Directive. First, whereas the Citizens’ Rights Directive determines which diseases justify public health restrictions, it does not give similar guidance on public policy and public security justifications. Nevertheless, the three justifications do not impose on Member States a uniform set of values. ²⁰ Member States are tolerated a certain area of discretion when determining the scope of these concepts, as long as they comply with EU law. ²¹ As reiterated in the Commission Communication on the special measures concerning the movement and residence of citizens of the Union, which are justified on grounds of public policy, public security or public health, “Member States are free to determine the scope of [public policy, public security and public health] on the basis of their national legislation and case law, but within the framework of Community law”. ²²

Most importantly, the Citizens’ Rights Directive expressly provides that measures taken on grounds of public policy and public security have to be based “exclusively on the personal conduct of the individual concerned”. ²³ They cannot be based on general preventive grounds ²⁴ or be automatic or systematic. ²⁵ The Court of Justice has, on several occasions, pointed out that measures justified by public policy and public security grounds may be taken only following a case-by-case assessment, ²⁶ but neither the Citizens’ Rights Directive, nor the Court has stated that the same case-by-case assessment applies to measures justified on public health grounds. Interestingly, the Commission 1999 Communication on Directive 64/221 provides that “Member States may not set any general requirement that before entry into the country citizens of another Member State need to provide proof that they are not suffering from any illness mentioned in the Annex [of the Directive]”. ²⁷ However, Member States’ practice of requiring documents certifying that the individual entering the country has a negative coronavirus test is not in conflict with this statement, as it is not a “general” but a “specific” requirement, which obliges individuals to certify that they do not have COVID-19: they need not prove that they are not carrying any other disease with epidemic potential.

Additionally, the Communication provides that “the public health grounds are somewhat outdated given the current level of integration of the European Union and the development of new means to handle public health problems” and continues, “therefore, restrictions of free movement can no longer be considered as necessary and effective means of solving public health problems”. ²⁸ Even though the 1999 Communication refers to Directive 64/221, which was repealed by the Citizens’ Rights Directive, the Commission 2009 Guidance on the Citizens’ Rights Directive confirms that “the content of the 1999 Communication is still generally valid”. ²⁹ Unfortunately, the 2009 Guidance does not provide any further guidance on the use of public health justifications.

The COVID-19 pandemic has shown that public health restrictions are still important and necessary and that they cannot always be based on individual threats and case-by-case assessment. Coronavirus has symptoms and is transmitted and spreads in a way that is different from other infectious diseases we have known so far. Consequently, public health restrictions could not be based on individualised risk assessment – by considering each individual separately, based on visible symptoms or the fact that the person has had a confirmed exposure to coronavirus. COVID-19 has triggered the adoption of much more general and systematic restrictions, encompassing millions of individuals within certain regions or states, without regard to confirmed infection or exposure to coronavirus. The question whether more targeted restrictions, such as those based on widespread testing and mass screening, could achieve the same degree of public health protection is linked to the issue of proportionality of the adopted restrictions, which will be discussed below. Unless or until such methods start being used, COVID-19 will continue to showcase as a disease that has increased the gap between public health and public policy/security justifications by completely stepping out of individualised risk assessment and case-by-case approaches.

IV. The precautionary principle and the proportionality of COVID-19 mobility restrictions

The previous section confirmed that public health can be invoked as a legitimate justification for COVID-19 mobility restrictions. However, as stated previously, national restrictions are only admissible provided they satisfy the principle of proportionality. The aim of this section is to problematise the application of the principle of proportionality to COVID-19 free movement restrictions and link it to the use of the precautionary principle by suggesting that reliance on the precautionary principle in the adoption of restrictive measures transforms the application of the principle of proportionality. After a short introduction about the uniqueness of the application of the precautionary principle to COVID-19 in the following paragraphs, section IV.1 will reveal that the precautionary principle has been relied on in the EU COVID-19 mobility-related documents. Section IV.2 will explain the functioning of the precautionary principle in the context of the pandemic by discussing two crucial components of the precautionary approach towards COVID-19: scientific risk assessment of COVID-19 and its political risk management. Section IV.3 will link the findings about the use of the precautionary principle in COVID-19 mobility policies to the principle of proportionality by discussing the impact of the use of the precautionary principle on the proportionality of COVID-19 free movement restrictions.

In short, the precautionary principle allows decision-makers to adopt restrictive measures when potentially dangerous effects deriving from a phenomenon, product or process for the environment, human, animal or plant health have been identified and scientific evidence about the risk are insufficient, inconclusive or uncertain. ³⁰ As will be displayed, the EU (and worldwide) approach towards the COVID-19 pandemic can be viewed as a triumph and regeneration of the previously much-disputed precautionary approach. Even one of the most fierce US critics of the precautionary principle has openly admitted that it is absolutely justified in the face of scientific uncertainty linked to COVID-19. ³¹

COVID-19 policies in the EU are the first policies in which the precautionary principle has been applied to such an extent and with such severity as to restrict the free movement of persons, in response to a communicable disease. ³² Even though restrictive measures affecting free movement of persons in the EU were also imposed to prevent the spread of SARS in 2003, the measures enacted 17 years ago are incomparable to the ones adopted in 2020, in terms of both their scope and their rigidity. ³³ The COVID-19 pandemic is also one of the rare cases in which the precautionary principle has been used not as a method to consider risks that might be incurred by acting (for example by putting a new product on the market), but the ones that would result from non-acting, i.e. from not imposing restrictions on free movement.

1. The precautionary principle in EU COVID-19 mobility-related documents

Even though EU documents related to COVID-19 rarely expressly mention the precautionary principle, there is no doubt that EU institutions have endorsed the precautionary approach by tolerating and approving national restrictions to free movement of persons and Schengen, and by implicitly acknowledging the precautionary approach. The analysis of key Commission and Council documents on COVID-19 mobility policies from spring and summer 2020 reveals that only one of these documents makes explicit reference to the precautionary principle. This is the Joint European Roadmap towards lifting COVID-19 containment measures, which states:

the restrictive measures introduced by Member States … have been based on available information in relation to the characteristics of the epidemiology of the disease and followed a precautionary approach,

and continues:

the Roadmap builds on the expertise and the advice provided by the European Centre for Disease Prevention and Control (ECDC) and the Commission’s Advisory Panel on COVID-19 and takes into account the experience and outlook from a number of Member States as well as guidance from the World Health Organization (WHO). ³⁴

The Roadmap also, on several occasions, states that it is “based on science”, thus acknowledging the importance of scientific risk assessment for COVID-19 political decision-making. As explained in the subsequent sections, scientific evaluation is a necessary, integral part of the precautionary approach. Consequently, this wording of the Roadmap has a dual effect: it supports the reference the Roadmap makes to the precautionary approach and confirms that Member States’ actions must be supported by scientific evidence in order to be proportionate.

Other EU COVID-19 mobility-related documents from spring and summer 2020 do not make explicit reference to the precautionary principle. However, even without explicit reference to precaution, these documents and the whole EU and Member States’ approach to COVID-19 restrictions have been triggered by the concern about the risks of COVID-19 to public health and were characterised by a high degree of scientific uncertainty caused by the lack of conclusive data about the disease. The fact that a number of EU documents do not make explicit reference to the precautionary principle does not refute this conclusion. On the contrary, as confirmed by the Court of Justice in its previous case-law, “the lack of express reference to the precautionary principle … does not mean that that institution did not rely on that principle … in order to prevent the alleged risks”. ³⁵

Additionally, a number of EU COVID-19 mobility-related documents use a number of terms that can be associated with both proportionality analysis and the precautionary approach, such as: “protection”, “preventive measures”, “science”, “risk assessment”, “risk management”, “ECDC”, “WHO”, and the balancing of different criteria, including the epidemiological situation, when making COVID-19 policy choices. Council Conclusions on COVID-19 from 20 February 2020 underline the importance of coordination of “contact tracing and risk communication” measures, as well as “sharing of information on national preventive and preparatory measures within the Health Security Committee and Early Warning System”. ³⁶ They stress the importance of “the work of ECDC on technical guidance regarding … risk assessment” and call upon the Commission to facilitate Member States’ cooperation on “surveillance, risk assessment (and) risk management”, while emphasising the importance of “scientific information” and “scientific advice from ECDC and WHO”. ³⁷ Similarly, Commission Guidance on the implementation of the temporary restriction on non-essential travel to the EU and a Commission Communication on the third assessment of the application of the temporary restriction on non-essential travel to the EU emphasise the importance of reliance on ECDC’s work. ³⁸ Equally, the Guidelines for border management measures to protect health and ensure the availability of goods and essential services and European Council Conclusions from 10 March 2020 rely strongly on science, while the Guidelines expressly provide that “restrictions to the transport of goods and passengers on grounds of public health” must be “science-based and supported by WHO and ECDC recommendations”. ³⁹

Whereas Commission Guidelines concerning the exercise of the free movement of workers during COVID-19 outbreaks do not make direct or indirect reference to precaution, science, risk assessment or other terms directly associated with the precautionary principle, they emphasise the importance of non-discrimination and proportionality as principles that have to be respected when adopting precautionary measures, as elaborated further below. ⁴⁰ Finally, the Commission Communication “Towards a phased and coordinated approach for restoring freedom of movement and lifting internal border controls” underlines not only the importance of ECDC’s scientific advice and risk assessment, but also emphasises that “the process towards the lifting of travel restrictions and internal border controls will require the weighing and balancing of different criteria, taking into account the specific epidemiological situations in each Member State, which may in turn vary between areas and regions”. ⁴¹ As will be discussed further in the text, the precautionary approach in general and in the context of the COVID-19 pandemic is characterised exactly by such a balancing approach. Political decisions on COVID-19 mobility restrictions are taken by relying on scientific evaluation of the disease as a starting point, but the final political decisions on precautionary measures are taken by weighing public health concerns with social, economic and other important interests.

2. The precautionary approach towards COVID-19

This subsection will explain the functioning of the precautionary principle in the context of the pandemic by discussing the interface between two crucial components of precautionary approach: the scientific risk assessment of COVID-19 and its risk management. Namely, the precautionary principle takes a structured approach to the risk. The initial step – scientific risk assessment – is performed by scientists, whereas further steps – risk management and risk communication – are taken by decision-makers. ⁴² This subsection will show that the response to the COVID-19 pandemic reflects this interface between science and politics.

a. Risk assessment of COVID-19: the importance of science

The COVID-19 pandemic has confirmed the importance of scientific risk assessment in political decision-making in situations of high risk for human health. The EU’s acceptance of Member States’ COVID-19-related restrictions (as well as national decisions to impose these restrictions) has been driven by medical science. Never in human history have decision-makers and the wider public paid so much attention to the findings of epidemiologists and virologists, and laid so much trust in them. However, due to an extremely short time span since the emergence of coronavirus and so many unknowns associated with its spread, scientific findings could not be conclusive. This created a situation of scientific uncertainty, with, nevertheless, reasonable grounds for concern that the virus could create real harm to human health. ⁴³ All these factors – the performance of scientific evaluation, the existence of scientific uncertainty and the identification of negative effects for human health – are prerequisites for invoking the precautionary principle and they were all satisfied in relation to coronavirus. ⁴⁴

Scientific risk assessment of COVID-19 was, at the EU level, performed by the ECDC. ⁴⁵ The ECDC is an EU agency created in 2004 and based in Stockholm, with a mission to identify and assess risks and communicate current and emerging threats to human health from communicable diseases and other sources. ⁴⁶ Considering the fact that the Union has only supporting competence in relation to the protection and improvement of human health, the ECDC’s work complements and does not replace the work of national centres of disease control, with which it cooperates and coordinates its work. ⁴⁷ However, the ECDC has an important role in the pandemic, as it gathers and prepares all EU data on the pandemic and disseminates recommendations for good practice.

In addition to its cooperation with national disease control authorities, in its work, the ECDC also relies on the findings of WHO, which became particularly relevant in the ECDC’s risk assessment of COVID-19. The contrast between the ECDC’s and WHO’s initial findings on COVID-19 and the ones published with the spread of coronavirus, accurately demonstrates the high degree of scientific uncertainty associated with this novel disease. The ECDC’s first risk assessment of COVID-19 from 9 January 2020 provided that, since there was no indication of human-to-human transmission and since no cases were found outside of Wuhan, the risk of its introduction and spread within the EU was considered low to very low. ⁴⁸ This wording accurately shows the limited nature of scientific data on coronavirus in Europe at the beginning of January 2020. In contrast, the ECDC’s risk assessment from 2 March 2020 considered that the risk associated with COVID-19 infections in the EU was “moderate to high, based on the probability of transmission and the impact of the disease”. ⁴⁹ In the same Report, the ECDC acknowledged the existence of “significant uncertainties” in its evaluation, “due to many unknowns … regarding the virulence/pathogenicity, the mode of transmission, the reservoir and the source of infection of COVID-19”. ⁵⁰

Interestingly, when advocating which measures should be used to mitigate the impact of the pandemic, neither the ECDC nor WHO initially encouraged the use of border closures and travel restrictions. In its Guidelines for the use of non-pharmaceutical countermeasures to delay and mitigate the impact of the COVID-19 pandemic, from 10 February 2020 the ECDC stated that “available evidence … does not support recommending border closures which will cause significant secondary effects and societal and economic disruption in the EU”. ⁵¹ The Guidelines further provided that “border closures may delay the introduction of the virus into a country only if they are almost complete and when they are rapidly implemented during the early phases, which is feasible only in specific contexts (e.g. for small, isolated, island nations)”. ⁵² The ECDC’s stance on border closures was not isolated. It relied on the position of WHO, according to which “Travel bans to affected areas or denial of entry to passengers coming from affected areas are usually not effective in preventing the importation of cases but may have a significant economic and social impact”. ⁵³ The Commission acknowledged the WHO’s position in its Communication on Temporary Restriction on Non-essential Travel to the EU, but, nevertheless, recommended to the European Council to close the external borders. ⁵⁴ The ECDC’s risk assessment from 23 April 2020 still recognised that substantial uncertainty regarding the epidemiological characteristics of COVID-19 continued to persist and that the effectiveness of different measures remained unclear, since many countries around the world introduced interventions en bloc. ⁵⁵ The ECDC’s risk assessment on 10 August 2020 continued to emphasise that “available evidence does not support border closures”, since COVID-19 “cannot be controlled by means of border closures” and that “measures to effectively contract-trace travellers crossing borders are needed and these should be reinforced in the coming period”. ⁵⁶

b. Risk management of COVID-19: political discretion

Despite both the ECDC’s and WHO’s scepticism about border closures, national responses to the COVID-19 pandemic in the EU and across the world included a high degree of travel restrictions and bans. This asymmetry between scientific findings of the European and world health organisations and national political choices reflects the functioning of the precautionary principle. Provided scientific evaluation identifies a risk to human health but scientific uncertainty remains, the choice whether to adopt precautionary measures and, if so, to determine the type and degree of severity of such measures is no longer in the realm of science, but relies on political discretion. This does not mean that precautionary measures can be discretionary or based on a hypothetical risk. They need to be underpinned by sound scientific assessment of the existence of a real risk. ⁵⁷ However, the final decision whether and which measures to resort to, without having to wait until the seriousness of the risks to human health becomes fully apparent, lies in the hands of politicians, not scientists. ⁵⁸ Scientific risk assessment underpins precautionary measures, but does not predetermine their choice or type.

The response to the COVID-19 pandemic illustrates this interface between scientific evaluation and political discretion. ⁵⁹ In the COVID-19 world, scientific models could measure morbidity and mortality risks based on the scientific – albeit still inconclusive and uncertain – findings of coronavirus behaviour and its spread, but they could not tell us how our society wants to deal with the virus and what implications we are ready to bear. These decisions had to be taken by political leaders, who had to make a balancing exercise between risks to public health and societal risk tolerance, when deciding on COVID-19 responses. ⁶⁰ Ultimately, these decisions also had to be made by each individual person, when making a choice whether to go to a store (provided this was a matter of choice) or take a walk in the park. Scientific risk assessment was and continues to be performed by medical experts, whereas risk management – or choosing how to deal with these risks – lies in the hands of decision-makers, in the first place, but also in the hands of our communities (in cases where community members voluntarily decide to try to protect each other) and, ultimately, with each individual person. Political leaders had to make a choice, while taking into consideration social behaviour and attitudes to COVID-19 risks at the macro and micro levels.

Decision-makers had to make two interconnected choices. First, they had to decide whether to act or not, based on the examination of benefits and costs of action or lack of action. ⁶¹ Second, in the affirmative, they had to decide on how to act, ie which precautionary measures to adopt. ⁶² There is a general agreement that the precautionary principle does not call for specific measures – such as bans or reversing the burden of proof – or lead to a predetermined solution. In addition, there is no general agreement which method should be used to determine when to apply precautionary measures. ⁶³ This setting gave decision-makers considerable flexibility in deciding whether and which types of COVID-19 measures to apply. ⁶⁴ As a result, not all EU Member States chose the same approach. Unlike most Member States, which resorted to rigorous measures from the very start, Sweden opted for a more relaxed approach, including at its borders, which were not closed for EEA nationals, ⁶⁵ whereas the UK first chose a “herd immunity” strategy and then, under the pressure of scientific community and the wider public, switched to stricter measures. ⁶⁶

The differences in the Member States’ approach to coronavirus show that the EU’s understanding of the level of political commitment created by the precautionary principle is a medium one: the risk the virus created to human health justified but did not oblige action or dictate the type of measures to be taken. ⁶⁷ The EU’s medium approach finds a middle ground between two extremes: between a completely non-committal approach, contending that uncertainty does not justify inaction but nothing more than that, ⁶⁸ and the one where uncertainty necessitates action. ⁶⁹ Such a medium modus operandi is in line with the functioning of public health restrictions to the free movement of persons in the EU. As analysed in the following subsection, public health may be used as a justification for restrictions of free movement, but not at all costs: the measure is acceptable only provided it is proportionate to the public health aim it pursues.

3. Proportionality of COVID-19 mobility restrictions

When choosing the types of precautionary measures, decision-makers are bound by international, European and national standards. The principle of proportionality is one of the standards that has to be satisfied by precautionary measures that restrict free movement, from the perspective of both EU internal market rules and the rules on the functioning of the precautionary principle. EU internal market law renders a free movement restriction acceptable only provided it is justifiable on one of the acceptable grounds, and proportionate, meaning that it is suitable for the achievement of the desired aim, such as public health (suitability test), that the desired aim could not have been reached by a less restrictive measure (necessity test), and that the measure is reasonable, considering other competing interests and the degree of interference to free movement of persons (proportionality stricto sensu). ⁷⁰

On the other hand, both the Commission Communication on the precautionary principle and the related case-law of the Court of Justice set proportionality as one of the requirements that have to be satisfied by precautionary measures. ⁷¹ The Communication provides a detailed list of criteria that have to be met by each precautionary measure, stating that such measures should be

proportional to the chosen level of protection, non-discriminatory in their application, consistent with similar measures already taken, based on an examination of the potential benefits and costs of action or lack of action (including, where appropriate and feasible, an economic cost/benefit analysis), subject to review, in the light of new scientific data, and capable of assigning responsibility for producing the scientific evidence necessary for a more comprehensive risk assessment. ⁷²

Decision-makers’ choice of COVID-19 policies had to be in line with these criteria and it is questionable whether this was always the case. ⁷³

Satisfying the proportionality requirement of COVID-19 mobility restrictions is particularly problematic. This subsection aims to examine the proportionality of mobility restrictions and link the analysis to the findings about the use of the precautionary principle in COVID-19 mobility policies. It will be argued that reliance on precaution in the adoption of COVID-19 mobility restrictions transforms the application of the principle of proportionality, in particular its test of necessity, by lowering the standard of what is “necessary”, due to the scientific uncertainty entailed within precautionary approach.

As explained in Section II, the imposed COVID-19 mobility restrictions consisted of two groups of measures: the reintroduction of internal border controls and various types of travel restrictions and bans on entry and exit to/from national territories. The Schengen Borders Code explicitly provides that internal border controls can be reintroduced only as last resort measures and only provided they fulfil the proportionality requirements, meaning that their scope and duration does not exceed what is strictly necessary to respond to the serious threat. ⁷⁴ Whereas the reintroduction of internal border checks probably satisfies the proportionality requirements, it is arguable whether the same could be claimed for all national travel restrictions and bans.

However, the precautionary nature of COVID-19 mobility restrictions (and of any other precautionary measure) transforms the proportionality analysis that has to be performed to check their compliance with EU law. This is due to the limited scope and uncertain character of evidence that was available to legislators imposing COVID-19 restrictions. Evaluating whether a particular travel ban is proportionate to the level of protection of human health it affords has to be assessed against a high degree of scientific uncertainty associated with the pandemic. It is relatively easy to argue that travel bans were suitable for the protection of public health, since they contributed to the reduction of the number of coronavirus infections by minimising the number of personal contacts and transmissions. However, the lack of reliable and certain scientific evidence that was available to decision-makers at the time of imposing restrictive measures renders the criterion of necessity much more flexible. Scientific uncertainty – inherent in any precautionary measure – lowers the threshold that has to be satisfied when assessing the legality of the legislator’s choice of the restrictive measure. The legislator is, thus, expected to look at the limited and uncertain scientific evidence that was available at the time of the decision and reasonably conclude that no less restrictive and equally effective measure could have been taken. Due to the uncertain effectiveness of different restrictive options, the legislator will be tolerated a higher level of discretion, as long as the choice of the measure is reasonable, considering other legislative choices. Consequently, scientific uncertainty associated with COVID-19 and with any other precautionary measure juxtaposes the precautionary principle and the principle of proportionality – while enabling the former, it transforms the latter, by requiring a lower degree of necessity.

One of the COVID-19 mobility measures that is problematic from the perspective of its proportionality (primarily on suitability and necessity grounds) is the creation of special border corridors. ⁷⁵ The way such mobility corridors were arranged, without sufficient regard to public health precautions, can be viewed as inconsistent with other COVID-19 mobility restrictions, thus challenging the suitability of those measures and departing from the general idea that free movement should temporarily be sacrificed for the benefit of public health. On the other hand, if it was possible to organise such mobility corridors while respecting all public health standards, one cannot but wonder why it would not be possible to do the same on a wider scale, calling into question the necessity of travel bans.

Further, the creation of “travel bubbles”, whereby a group of states allow each other’s citizens and residents to enter freely, could again in certain cases be problematic from the perspective of the principles of proportionality and non-discrimination. “Travel bubbles” are discriminatory in character, since they treat certain Member States and their nationals more favourably than others, but they can be justified and suitable, provided the Member States creating the bubble have similar and controllable coronavirus situations, by sharing similar, low rates of coronavirus infection. ⁷⁶ The Commission recognised this by stating that “where a Member State decides to allow travel into its territory or to specific regions and areas within its territory, it should do so in a non-discriminatory manner – allowing travel from all areas, regions or countries in the EU with similar epidemiological conditions”, and continued that the lifting of restrictions must apply “without discrimination, to all EU citizens and to all residents of that Member State regardless of their nationality, and should be applied to all parts of the Union in a similar epidemiological situation”. ⁷⁷ On the other hand, the creation of “travel bubbles” among Member States with different epidemiological situations, or allowing “travel bubbles” with only some Member States that share similar low rates of infection and not with others, would again not be suitable for the attainment of public health due to the inconsistency of the approach.

COVID-19 mobility restrictions also problematise the application of the third proportionality test: proportionality stricto sensu, which requires that the adopted restrictions are reasonable, considering other social interests and, therefore, necessitates a balancing exercise between the benefits to public health and the harm caused to free movement and other social interests. The balancing exercise, entailed within the principle of proportionality, is also contained within the political risk management part of the precautionary approach, whereby decision-makers have to make a choice whether to act and how. The importance of balancing has been recognised in several EU COVID-19-related documents, when stating that “the decision to end restrictive measures is a multidimensional policy decision, involving balancing public health benefits against other social and economic impacts”. ⁷⁸

The decision-makers’ obligation to balance among different social interests shows that scientific data are just one – though an indispensable one – of the factors that determined the political choice of taking precautionary measures against COVID-19. When responding to the COVID-19 pandemic, political leaders had to balance a range of important considerations, human health being just one of them. Political decisions were made by taking into account a number of other factors, most important being the preservation of national healthcare systems against the risk of collapse due to limited healthcare capacities. In addition, they could not ignore the negative economic and social consequences of precautionary measures, as well as public health risks they created for the population, especially for the most vulnerable and older ones who became more susceptible to mental health problems caused by physical distancing and lockdowns and to other health problems caused by the postponement of medical examinations and treatments that did not require immediate and urgent attention.

Divergences in the choice of precautionary measures and their changes reflect not only alterations in the number of infections and mortality, but also the differences in the outcomes of the balancing exercise, influenced by states’ economic and social endurance and healthcare capacities. For this reason it is not surprising that the initial COVID-19 policies in most Member States gave complete precedence to the protection of public health over economic and other social interests – in line with the case law on the precautionary principle – whereas subsequent approaches become more receptive towards the balancing of public health and other economic and social interests. ⁷⁹ It also means that a new COVID-19 wave of infections does not have to result in the same degree and type of travel restrictions and bans as the ones in winter/spring 2020. ⁸⁰ This opens up the question whether travel bans adopted so far were proportionate stricto sensu, considering the fact that their adoption and lifting were not always consistent with the alterations in the number of coronavirus infections in different Member States. Consequently, some Member States whose economies depend on tourism imposed more severe travel restrictions in winter/spring 2020, at the time when their coronavirus infections were relatively low in a number of Member States, lifted them later on and decided to keep them lifted in summer 2020, to promote their tourist season, despite a considerable increase in the number of infections.

Nevertheless, it has to be acknowledged that the balancing among different social interests in the COVID-19 circumstances was extremely burdensome for a number of reasons. First, it is generally difficult to make trade-offs and find a compromise between the protection of public health, on the one hand, and the protection of fundamental freedoms and rights that had to be restricted, on the other hand. Second, decisions were difficult because of the urgency caused by the high degree and speed of infectiveness of coronavirus and so many unknowns associated with it, and partly due to the difficulty of quantitatively measuring its effects when comparing different precautionary measures. Like the problems encountered with the performance of the test of necessity, the scientific uncertainty associated with COVID-19 also made the balancing exercise extremely challenging.

Third, the question whether travel bans were reasonable, considering other competing interests, might vary depending on how wealthy a society is and how long it can withstand the economic consequences of lockdowns. Changing attitudes to COVID-19 have become visible in the past few months, in which the political rhetoric has turned from “we have to shut down for the virus” to “we have to dance with the virus”. The answer to this question might also vary among EU Member States, based on their societal and cultural preferences, as different societies might have different expectations, fears and priorities. The ECDC has recognised the importance of respecting the level of societal tolerance of the anticipated COVID-19 risks by stating that “societal norms and values underpinning freedom of movement and travel will need to be weighed against precautionary principles and the public acceptance of risks”, thus confirming the fact that “what may be acceptable and feasible in one setting may not be in another”. ⁸¹ In this context, one of the explanations for the Swedish response to the COVID-19 pandemic being much more relaxed than in the rest of Europe is based on the presumption that the level of social and institutional trust in Sweden is much higher than in most EU Member States, due to its historical, political, social and cultural mores. ⁸² This, in effect, enabled Swedish decision-makers to adopt measures which rested on individual responsibility and mutual trust, instead of strict lockdowns.

Finally, the understanding whether a particular COVID-19 mobility restriction is reasonable or not might also vary among different social groups, depending on what they perceive as a threat. For a retired 75-year-old person with chronic health problems, or any other individual belonging to a COVID-19 risk group, any measure which reduces the threat of coronavirus for his or her life and health might be reasonable, no matter what side effects. On the other hand, from the perspective of a young and healthy individual who has lost his or her job or source of income from tourism or seasonal work, the costs of border closures might outweigh their benefits. In addition, one’s past experience, geographical proximity to infected regions and increased media exposure of coronavirus may also influence individual preferences associated with COVID-19 mobility restrictions. ⁸³ As a result, one society, social group or individual might be willing to pay a higher cost to protect human health than another, which can, in effect, lead to different views on whether free movement restrictions are reasonable, thus influencing political choices of the types and degree of severity of the adopted restriction.

It has to be acknowledged that balancing among different social interests is not a peculiarity of COVID-19 mobility restrictions. On the contrary, balancing has to be performed by policy-makers every time they adopt a new measure and they are frequently confronted with diverse expectations from different social groups. However, in the COVID-19 circumstances, the balancing exercise is much more difficult than usual due to the severity, duration and scientific uncertainty associated with COVID-19 and due to the powerful impact of COVID-19 policies on our societies. It is not surprising that over time – as the side effects of precautionary measures are becoming more palpable and measurable – public attitudes towards the suitability, necessity and reasonableness of the adopted measures are becoming more and more divergent. In this context, political leaders will have the difficult task of defending the adopted measures both before the public and before courts.

V. Conclusion

Coronavirus has generated a public health emergency of great magnitude and severity, never previously encountered by the EU and worldwide. It has put into jeopardy not only human lives and health, but also the viability of our health systems, economies and societies. The pandemic has resulted in significant social and system shifts, including visible changes of EU law. This text aimed to discuss some of these legal changes, by focusing on the roles of public health restrictions, the precautionary principle and the principle of proportionality. The discussion has revealed that the EU has taken a precautionary approach towards the COVID-19 pandemic and that the implementation of the precautionary principle transforms the application of the principle of proportionality to COVID-19 mobility restrictions. The text has also shown that COVID-19 has altered our understanding of public health restrictions, due to the fact that it has certain characteristics which differentiate it from other infectious diseases we have known so far, and that it has, consequently, increased the difference between the conditions for the applicability of public health restrictions, when compared to public policy and public security restrictions.

The text has pointed to the challenges in finding the right balance between disease control and protection of fundamental freedoms, and between the level of health risks and societal risk tolerance. However, the weaknesses of COVID-19 mobility restrictions lie not only in the challenges they pose to the functioning of the EU internal market, but also in their inability to respond to the needs of contemporary societies and social cohesion. COVID-19 points to the need to prepare our public health systems for future pandemics and adjust our legal systems accordingly.