A recent ruling by the European Court of Justice has established that in pandemic situations, each Member State may decide to ban travel deemed non-essential and/or impose mandatory diagnostic tests.
The case under appeal
The case under appeal concerned the recent Covid-19 pandemic situation, as a result of which, a Member State decided to ban non-essential travel from or to other EU countries that were classified as “red zones” because of their serious health situation.
In addition to this restriction of movement rights, that Member State decided to institute mandatory diagnostic tests and quarantine for any person from those risky countries.
As a result of this decision, a travel agency canceled all planned travel from that Member State to another Member State that was classified as a “red zone”. That agency, consequently, sought compensation from the damage suffered.
The relevant court therefore sought the Court of Justice’s opinion to determine whether EU law conflicted with the decision taken by the Member State.
Court of Justice ruling
The Court of Justice ruling clarified that, in a pandemic situation such as Covid-19, a Member State has the power to ban non-essential travel to or from other Member States classified as “red zones”. That State may also require individuals entering its territory to undergo diagnostic testing and observe quarantine.
Therefore, it is agreed that such measures, while restrictive of the principle of free movement within the Union, may be taken in an emergency situation. However, such emergency decisions must be justified by clear and precise rules, and applied in a predictable and non-discriminatory manner. Moreover, they must comply with the principle of proportionality.
Finally, such measures must be open to challenge in judicial or administrative review.
It should be recalled that courts of a Member State may refer a disputed question to the Court of Justice for an opinion on the interpretation of the European Union law. The European Court of Justice (ECJ) does not resolve the national dispute but merely provides a ruling so that the national court can resolve the case in accordance with the ECJ’s opinion and other national courts can do the same when confronted with a similar problem.
