Covid-19 and the Future of EU Citizenship: In need of a common EU crisis-mode response?

Covid-19 and the Future of EU Citizenship: In need of a common EU crisis-mode response?

Dr. Katerina Kalaitzaki

Early Career Fellow in European Union Law – University of Edinburgh Law School

The blog post questions the extent to which the de-centralised response to Covid-19 in relation to the right to move and reside freely is in fact diminishing the essence of EU citizenship and if so, is now the time to switch to a centralised EU crisis-mode policy? The Covid-19 pandemic crisis has swiftly transformed the lives of citizens and led to deep restructuring in the European legal and political space. National measures have been adopted to limit the spread of the outbreak, including travel restrictions and reinstatement of border controls, which have greatly segmented the free movement rights of citizens. The area of public health including emergencies such as a pandemic, falls under the Member States’ competence, as far as it is exercised in compliance with EU law, while restrictions on public health grounds are permitted under EU law. However, the wide discrepancy observed between the national measures adopted, has allegedly diminished the fundamental status of EU citizenship and the essence of the rights attached to it.

Free Movement Rights under EU Citizenship: Restrictions and Justifications?

Free movement rights constitute the backbone of the internal market. They are established under EU citizenship rights and the free movement of workers, services, and establishment, while facilitated by the Schengen system of common border management. The Treaty itself clarifies that free movement rights of workers, service providers and those exercising their freedom of establishment are subject to limitations including on grounds of public health. On the contrary, no such provision exists in EU primary law for restrictions imposed on EU citizenship rights and the matter is dealt under the Citizens’ Rights Directive (CRD), which governs the free movement of both economically and non-economically active persons. More specifically, Article 29 CRD provides for justification of restrictive measures on public health grounds concerning “diseases with epidemic potential as defined by the […] WHO”, such as Covid-19. Contrary to the grounds of public policy or public security, restrictions based on public health do not involve considerations of individual conduct, but Member States should apply them in a proportionate manner. The Commission further noted that such measures must not discriminate between the Member States’ own nationals and resident EU-citizens, while governments must not deny entry to EU citizens or third-country nationals residing on their territories.

Covid-19 Measures and National Inconsistencies

Since the outbreak of Covid-19, Member States have imposed travel and/or entry restrictions in compliance with EU law, driven by the principles of proportionality and non-discrimination. The initial lack of an EU response contributed to the proliferation of national responses, different in nature, with some Member States prioritising the mobility and/or entry of workers and self-employed persons over that of students and non-economically active citizens. Such examples can be traced in Cyprus where the government sought to impose stricter entry conditions for students and non-economically active citizens, while those who travelled abroad for medical reasons or for professional and/or service provision purposes could be admitted back in the country, exempted from the general rule. Further advice was later issued by the Commission, on the adoption of common criteria when introducing national measures that restrict EU free movement focusing on critical workers, while the Council has more recently (12.10.2020) adopted a recommendation to coordinate measures affecting free movement. The recommendation stresses that the introduction of restrictive measures remains a national responsibility, but also the importance of broader coordination. However, many national measures continue to diverge in the area of free movement rights, manifesting that this soft law approach is not sufficiently effective in protecting the essence of EU citizenship.

Although the national restrictive measures have been adopted in accordance with EU law, the wide discrepancy between the Member States’ priorities and responses, seems to have substantially diminished the fundamental status of EU citizenship and the free-standing right to move and reside freely established therefrom. The initial responses to the pandemic, split EU citizenship in two and the concept of economically active citizens (re)emerged. At the same time, the initial lack of an EU response on a coordinated approach towards EU citizenship rights, asserts once more the limited reach of EU citizenship during periods of crises.

In need of an EU crisis-mode citizenship?

The differentiated treatment of EU citizenship and the rights attached thereto during periods of crises is not entirely new. Similar inconsistencies were also observed during the financial crisis, in ways that are still evident in some Member States. Restricting free movement rights attached to EU citizenship in the face of a crisis -which is entirely legitimate and expected- requires a rapid and coordinated handling to protect the essence of the concept, along with proportionality and non-discrimination. Contrary to the current fragmentary approach adopted, with ‘bits and pieces’ of EU involvement, a rapid and coordinated response would be more effective if integrated into EU policies. In other words, responding to crises such as a pandemic, within a system of multi-level governance, might require ‘EU crisis-mode’ responses, deeply integrated into EU law, which would secure the essence of concepts like EU citizenship and their viability after the crisis.

 

List of cases

Case C-413/99 Baumbast and R, ECLI:EU:C:2002:493.

Case C-184/99 Grzelczyk, ECLI:EU:C:2001:458.

Case C-333/13, Dano, ECLI: EU: C: 2014: 2358.

For further analysis on EU citizenship rights case law and the inconsistencies observed, during the financial crisis see the cases below:

Case C140/12, Brey, ECLI: EU: C: 2013: 565.

Case C-67/14, Alimanovic, ECLI: EU: C: 2015: 597.

Case C-299/14, Garcia-Nieto, ECLI: EU: C: 2016: 114.

 

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