The European Court of Justice gives the OK to travel restrictions and swabs in case of epidemic

A European ruling authorises restrictions but sets limits that will all have to be interpreted.

The European Union Court of Justice (ECJ) issued a ruling on December 5, 2023, confirming the validity of the travel bans and the obligations of diagnostic tests and quarantine adopted during the COVID-19 health emergency, as reported by Italia Oggi.

In a pandemic situation, an EU state has the right to ban non-essential travel to other states classified as high-risk areas (red zones) for health reasons. Furthermore, it is legitimate to require people entering the territory of a state to undergo diagnostic tests and to observe a quarantine.

However, to be lawful, these restrictions must be reasoned, clear, precise, non-discriminatory, proportionate, and subject to appeal before a judge or administrative authority. The case that led to this ruling involved Belgium, which, like other countries, banned non-essential travel to and from red zones and imposed tests and quarantine periods on incoming travellers.

The dispute arose when a travel agency cancelled all planned trips between Belgium and Sweden, the latter temporarily placed in the red zone. Contesting the Belgian government’s decision, the agency filed a lawsuit and claimed compensation for the damage suffered from the cancelled trips.

The ECJ was called upon to assess the legality of the Belgian regulations in relation to European law, in particular Articles 23 and 25 of the Schengen Borders Code. The Court clarified that in times of crisis, a contagious disease such as COVID-19 can be considered a threat to public order or internal public security, thus justifying restrictions on the movement of people.

The ECJ has ruled that EU states may ban non-essential travel to or from other’red zone’ states and impose testing and quarantine to combat a pandemic such as COVID-19. However, these measures must be adopted with a general scope, adequate reasoning, and clear and precise rules, with the possibility of administrative and judicial appeals to challenge possible discrimination.

The Court emphasised the importance of the principle of proportionality: the measures taken must be limited to what is necessary in relation to the objective of containing the pandemic, balancing the interests involved against the seriousness of the interference with the rights and freedoms of the persons concerned. EU decisions are applicable to all EU states.

The problem is that the principles of proportionality and non-discrimination are principles that must be assessed by a judicial authority, possibly even an administrative authority, but in the meantime, the freedom of movement of citizens is severely restricted. It would have been more tactful to define more restrictively and rigidly the cases in which personal freedom can be restricted.