On 26 March 2020, following a meeting of the European Council, the Member States, together with the European Commission, agreed to harmonize the national’s policies undertaken to gradually lift COVID-19 containment measures. In order to achieve this ambitious goal, on 15 April a Joint European Roadmap was established as a set of principles and guidelines jointly proposed by the President of the European Commission and the presidency of the European Council. The Roadmap provides an indispensable plan to recover economic activities while minimising negative impacts on people’s health and on national health care systems. To achieve this goal the Commission based its recommendation on the expertise and advices provided by the European Centre for Disease Prevention and Control (ECDC) and the Commission’s Advisory Panel on COVID-19.
Indeed, the COVID-19 epidemic has heavily affected the free movement of people and goods that are the cornerstone of the EU single market. Before analysing the measures set up by the Roadmap is useful to survey the Commission’s Border Management Guidelines endorsed on 17 March to ensure a European framework on border management procedures that will guarantee the protection of health and, at the same time, the availability of goods and essential services.
Regarding the free movements of goods, the EU legislation prevents Member States from imposing quantitative restriction on trade within the EU. Nevertheless, prohibitions or restrictions could be justified on the grounds of the protection of health and human life or for public security and related cases listed by art. 36 TFEU.
The protection of health and human life mainly concerns the trade of animals and animal products that could be subject to infectious diseases. Up to now the ECDC has not found any evidence of a COVID-19 transmission from animal and animal products. However, restrictions could be justified by the risk of being infected with the virus living on the packaging of the transported goods or being carried by transport workers. In these cases, the Commission has stressed that such measures should be proportionate to the level of risk presented by balancing the trade-off between health-security and socio-economic recovery.
On the other hand, restrictions due to public security are permitted only in limited circumstances, including the need to preserve the country’s safety. Certain Member States have introduced quantitative restrictions on the export of medical equipment and supplies as public security measures. These actions had been criticized by the Commission, but it partially endorsed these measures if adequately subjected to the principle of proportionality.
The Commission’s Border Management Guidelines reflects the commitment to preserve the integrity of the single market while providing the freedom of goods in accordance with the current emergency conditions and related needs. The Commission urged to maintain free flow of goods within the EU borders, especially in relation to essential and health-related goods. It also reminded that no additional certification should be required for tradable goods.
Despite these recommendations, in response to increasing national stringent border control measures, that hampered the free flow of traffic on border crossings, the Commission issued a Communication on the implementation of Green Lanes, within the framework provided by the guidelines. The Commission suggested to the Member States to designate all relevant border crossings as Green Lanes. Within these lanes the Member States should refrain to impose additional certifications on goods circulating within the common market and to streamline border crossing procedures. The Commission also urged Member States not to prioritise freight of certain types of goods at border crossings. However, the Commission is prepared to investigate whether prioritisation measures may be necessary.
Regarding the free movement of persons, art. 29.1 of Directive 2004/38 allows Member States to restrict free movement of people from other Member States on the grounds of public health. This measure is particularly related to epidemic phenomenon defined in accordance with the WHO’s rules as the case of COVID-19 pandemic. This is the reason why this mechanism has been used widely among Member States in the last months. Moreover, under the articles 25, 28 et seq. of the Schengen Border Code, Member States can temporarily reinstate border control at their internal borders if such measures are necessary to face serious threat to public policy or internal security. These restrictions are undertaken by several Member States such as Germany, France and Austria, and they will likely contribute to delays at border crossing.
In contrast to the Commission’s strong approach towards safeguarding the right of free movement of goods, its positions on the free movements of people are less ‘obliging’. As to the external borders of the Schengen area, the Commission’s guidelines aim to reinforce checks at external border crossing points, suggesting to enhance entry screening and other related health measures. The Commission also reminded that Member States are entitled to refuse the entry to non-resident third country nationals if they present relevant symptoms or have been particularly exposed to the risk of infection in a proportionate and non-discriminatory manner.
Regarding the internal borders of the Schengen area, the Commission reminded that temporary border controls should be implemented, stressing that persons who are clearly sick should be provided access to appropriate healthcare services and not refuse to entry. The guidelines also affirm the necessity to facilitate the crossing of frontiers workers involved in essential services and highlighted the non-discriminatory obligation in the treatment of EU and non-EU citizens residing on their territory. Member States are also prohibited from refusing entry to EU citizens or third-country residents who are returning home.
The phase endorsed by the Commission and the European Council to progressively lift the above-mentioned restriction resulted in a Roadmap draft aimed at ensuring a better coordination of the national’s efforts to boost economic recovery and, at the same time, preventing a further spread of the disease. The Roadmap is designed on the assumption that the confinement measures cannot last indefinitely and on the needs for a continuous assessment on whether such measures are still proportionate as our knowledge of the disease evolves.
The Roadmap establishes three main principles to guide the Member States, considering the relevant differences and circumstances. First, each action should have a scientific basis and maintain health protection as its primary purpose. The decision to end restrictive measures is a multidimensional policy decision, that requires to balance the demand for economic recovery with health security.
Consequently, all actions should be coordinated at European level. A lack of coordination in lifting restrictive measures risks to have severe consequences and could undermine the efforts made so far. The Commission is aware that there is no one-size-fits-all approach, nevertheless Member States should notify in time each other and the Commission of the planned lifting measures and take into account their views. This arrangement is aimed at promoting exchange of thoughts and practices within the EU’s Integrated Political Crisis Response framework.
Thirdly, the solidarity between the Member States is a key factor in the process of lifting restrictions. At the beginning of the pandemic several European nations have proven remarkable examples of solidarity such as the treatment of intensive-care patients in other Member States, the sending of doctors and nurses, the supply to other countries of protective suits and masks as well as ventilators. In addition, seventeen Member States have organised flights to bring home European citizens of all European nationalities that were stranded abroad, thanks to the EU’s Civil Protection Mechanism.
In a second stage the Roadmap lists a set of three relevant criteria to assess whether it is possible to loosen the confinement measures. The first criterion is the epidemiological one. A sustained reduction in the number of new infections, hospitalisations and patients in intensive care are without doubt solid elements to consider in the lifting of restrictions.
Furthermore, even an adequate crisis-response potential of the healthcare system should be taken into account. For instance, it means having an adequate number of hospital beds, a viable access to pharmaceutical products required in intensive care units and the availability of primary care structures as well as sufficient staff with appropriate skills to care for patients discharged from hospitals or maintained at home and to engage in measures to lift confinement. Different national healthcare systems will have to cope with increases in cases after the lifting of restrictions that will put constant pressure on hospitals, especially in relation to the backlog of elective interventions that had been temporarily postponed during the pandemic’s peak. Indeed, the healthcare systems should be recovered in order to be well equipped for the treatment of both COVID-19 and non-COVID-19 patients at the same time.
Finally, an appropriate monitoring capacity should be guaranteed, including large-scale testing capacity to detect and monitor the spread of the virus combined with contact tracing and options to isolate people in case of reappearance and further spread of infections.
In the fourth section the Roadmap also sets a list of recommendations based on the scientific advices received from the ECDC and the Advisory Panel on COVID-19. The first recommendation concerns the graduality that the lifting actions should maintain. Such measures should be lifted in different steps in order to be able to track the effects of their liftings.
The Roadmap suggests also that general measures should progressively be replaced by targeted ones, with the aim to surmount the emergency period and start a new process of ‘normality’ that will guarantee the safety of people and the recovery of economic activities. According to this principle, the most vulnerable groups should be protected for a longer period. Indeed, evidence suggests that elderly and people suffering from chronic diseases are at higher risk. Diagnosed people or people with mild symptoms should remain quarantined and treated adequately: this will help break transmission chains and limit the spread of the disease. Then, safe alternatives should replace existing general prohibitive measures. This will enable targeting risk sources while facilitating the gradual return of necessary economic activities, for example, by intensifying regular cleaning and disinfection of transport hubs and vehicles. Finally, general state of emergency, along with government’s exceptional emergency powers, should be replaced by more democratic accountable and transparent measures, such as targeted interventions by the government.
The third recommendation prescribes to start the lifting of measures from the local communities and, just as a further stage, to gradually extend the geographic coverage, taking into account each national specificity. Subsequently, a step by step strategy to ease up both internal and external borders’ restrictions is crucial, eventually restoring the normal functioning of the Schengen area. In this way, the Commission reminds the necessity to lift internal border controls in a coordinated manner.
Indeed, the Roadmap suggests that travel restrictions and external border controls should be lifted only once the global epidemiological context is changed positively, especially if several non-EU countries have an epidemiological outlook equal or even better than that of the Member States. The Commission has stressed that a gradual lifting of borders’ measures should give priority to cross-border and seasonal workers and, at the same time, an unobstructed flow of goods and a secure supply chains should be guaranteed and reinforced even in the case of ‘successive disease waves’.
The Commission and the European Council also agreed to set a list of several non-EU countries whose residents should not be affected by temporary external borders restriction on non-essential travel into the EU, given their positive epidemiological outlooks, that must be equal or even better that the EU one. It is interesting to note that also China belongs to this list, but it’s the only country subjected to a reciprocity clause.
Another core recommendation comprises the gradual restart of economic activities in order to prevent the entire population from returning to the workplace at the same time. Indeed, there are several models that could be very useful to favour jobs with low interpersonal contacts and jobs suitable for teleworking. Additionally, occupational health and safety rules established during the epidemic peak should be maintained and implemented. In order to deal with this challenging issue, the Commission will create a rapid alert function to identify supply and value chain disruptions relying on several existing networks. The disruptions can be caused by an asymmetrical lifting of containment measures (inside or outside the EU), the bankruptcy of businesses or third country actor interference. This mechanism will also be tasked to find the best solution to tackle such complex issue.
Regarding the gathering of people, the Commission recommends to progressively lift restrictions taking into account each different category of activities such as school and universities (boosting classrooms cleaning and e-learning), commercial activities (mainly retail) and social activity measures. Transport services should be also gradually reinstated favouring lower risk and individualized transports, while collective means of transports should be gradually phased in with necessary health-oriented measures.
All these actions and measures should be constantly monitored and follow up by appropriate means in order to assure a better reaction to the constant evolution of circumstances. The Roadmap clarifies that decisions whether or when to reinstate stricter measures should be based on a formal plan, using explicit criteria. Nevertheless, healthcare systems should be reorganized to be able to cope with possible surges of the virus, managing the crisis-response at EU level in coordination with the Commission and with each Member State. Indeed, The Commission will task the ECDC to develop advices for a common EU approach for future lockdowns, in view of a possible resurgence of the disease, taking into account the experience acquired so far.
The safeguard of the common market and the right balance between socio-economic recovery and health protection will be the main priority for the Commission in the years ahead. The EU’s institutions have deeply remarked the necessity to promote an enhanced coordination between the Member States through existing networks and agencies that can share their expertise and knowledge on a range of issues in order to set common strategy to deal with a protracted epidemic weave. The more the transition is coordinated at EU level, the more negative spill-overs between Member States will be avoided and a better implementation of measures will be mutually assured.