Case C‑128/22
Nordic Info BV
v
Belgische Staat
(Request for a preliminary ruling
from the Nederlandstalige rechtbank van eerste aanleg Brussel)
Judgment of the Court (Grand Chamber) of 5 December 2023
(Reference for a preliminary ruling – Directive 2004/38/EC – Articles 27 and 29 – Measures restricting the free movement of Union citizens on public health grounds – Measure of general application – National legislation providing for a ban on leaving the national territory in order to engage in non-essential travel to Member States classified as high-risk zones in the context of the COVID-19 pandemic and an obligation for every traveller entering the national territory from one of those Member States to undergo screening tests and to observe quarantine – Schengen Borders Code – Article 23 – Exercise of police powers in the field of public health – Equivalence with the exercise of border checks – Article 25 – Possibility of reintroducing border controls at internal borders in the context of the COVID-19 pandemic – Controls carried out in a Member State as part of measures prohibiting the crossing of borders for the purpose of engaging in non-essential travel from or to States in the Schengen area classified as high-risk zones in the context of the COVID-19 pandemic)
1. Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Restrictions on the right of entry and the right of residence on grounds of public health – Concept of a disease with epidemic potential defined by the relevant instruments of the WHO or other infectious diseases or contagious parasitic diseases – COVID-19 – Included – Conditions – Disease subject to a set of protective measures applying to nationals of the Member State concerned – Measures adopted for non-economic ends – Verification by the referring court
(European Parliament and Council Directive 2004/38, Arts 27(1) and 29(1))
(see paragraphs 52-54)
2. Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Restrictions on the right of entry and the right of residence on grounds of public health – Scope – Inclusion of measures also restricting the right of exit – Concept of restrictions on free movement – Prohibition on the crossing of borders – Obligation for travellers entering the territory of a Member State to undergo screening tests and to observe quarantine – Included
(Arts 20 and 21 TFEU; European Parliament and Council Directive 2004/38, Arts 4, 5, 27(1) and 29(1))
(see paragraphs 55, 56, 58, 59)
3. Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Right of exit and entry – Scope – Citizen who is a national of a Member State and wishes to leave the territory of that State to travel to another Member State – Citizen who is a national of a Member State and wishes to enter the territory of another Member State – Included
(Arts 20 and 21 TFEU; European Parliament and Council Directive 2004/38, Art. 4(1))
(see paragraph 60)
4. Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Restrictions on the right of entry and the right of residence on grounds of public health – Combating the COVID-19 pandemic – Restrictive measures imposed on Union citizens travelling, for non-essential reasons, from one Member State to another Member State classified as a high-risk zone or coming from such a Member State – National legislation of general application imposing such measures – Whether permissible – Conditions – Compliance with the conditions and safeguards referred to in Articles 30 to 32 of that directive, the rights and principles enshrined in the Charter of Fundamental Rights and the principle of proportionality
(European Parliament and Council Directive 2004/38, Arts 27(1), 29(1), and 30 to 32)
(see paragraphs 62, 69-76, 98, operative part 1)
5. Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Restrictions on the right of entry and the right of residence on grounds of public health – Observance of the principle of proportionality – Scope – Measures appropriate for meeting the objective of protecting public health which are limited to what is strictly necessary and are not disproportionate to that objective – Verification by the referring court
(European Parliament and Council Directive 2004/38, Art. 31(1) and (3))
(see paragraphs 77, 81-84, 87, 90-97)
6. Border controls, asylum and immigration – Union Code on movement across borders – Abolition of internal border controls – Combating the COVID-19 pandemic – National legislation prohibiting the crossing of internal borders for the purpose of engaging in non-essential travel from or to States in the Schengen area classified as high-risk zones – Controls to ensure compliance with that legislation within the national territory – Need to carry out those controls in the exercise of police powers which must not have an effect equivalent to border checks – Controls to ensure compliance with that legislation at internal borders – Need to comply with the conditions referred to in Articles 25 to 28 of that code
(European Parliament and Council Regulation 2016/399, Arts 22, 23 and 25)
(see paragraphs 104, 105, 109, 123, 128, 129, operative part 2)
7. Border controls, asylum and immigration – Union Code on movement across borders – Abolition of internal border controls – Checks within the territory – Control measures falling within the exercise of police powers which must not have an effect equivalent to border checks – Assessment by the national court in the light of the indicia provided for in the second sentence of Article 23(a), items (i) to (iv), of that code
(European Parliament and Council Regulation 2016/399, Art. 23(a))
(see paragraphs 111-113, 117-122)
8. Border controls, asylum and immigration – Union Code on movement across borders – Abolition of internal border controls – Temporary reintroduction of border control at internal borders where there is a serious threat to public policy or internal security – Scope – Concept of a serious threat to public policy or internal security – Health threat posed by the COVID-19 pandemic – Included
(European Parliament and Council Regulation 2016/399, Art. 25)
(see paragraphs 125-127)
Résumé
In the context of the COVID-19 pandemic, in July 2020 a Belgian Ministerial Order prohibited non-essential travel between Belgium and the countries of the European Union, the countries of the Schengen area and the United Kingdom, provided that those countries were classified as high-risk zones (‘red zones’) in the light of their epidemiological situation or the level of the restrictive health measures taken by their authorities. The Belgian legislation also required every traveller entering national territory from one of those countries to undergo screening tests and to observe quarantine.
During that period, controls were carried out by the Belgian authorities to verify compliance with these measures.
From 12 to 15 July 2020, Sweden was one of the countries classified as a high-risk zone. Nordic Info BV, a travel agency specialising in travel to and from Scandinavia, cancelled all scheduled trips from Belgium to Sweden during the summer season in order to comply with the Belgian legislation.
That travel agency then brought an action before the Nederlandstalige rechtbank van eerste aanleg Brussel (Brussels Court of First Instance (Dutch-speaking), Belgium), the referring court, seeking compensation for the damage which it claims to have suffered as a result of faults allegedly committed by the Belgian State in the drafting of the legislation at issue.
By its reference for a preliminary ruling, the referring court asks the Court of Justice first whether such general legislation of a Member State is compatible with the provisions of Directive 2004/38 (1) which govern measures restricting freedom of movement adopted on public health grounds. (2) It then asks the Court whether the prohibition on crossing the internal borders of that Member State for the purpose of engaging in non-essential travel to or from countries within the Schengen area classified as high-risk zones is compatible with the articles of the Schengen Borders Code (3) relating to the absence of internal border controls, their possible temporary reintroduction and the exercise of police powers. (4)
By its judgment, the Court answers those two questions in the affirmative, while specifying the conditions under which such national legislation must be applied.
Findings of the Court
As regards the legality, in the light of Directive 2004/38, of measures restricting freedom of movement laid down by a Member State in the context of a pandemic such as the COVID-19 pandemic, the Court states that the national legislation laying down those measures must comply with all the conditions and safeguards referred to in Articles 30 to 32 of that directive, the rights and principles enshrined in the Charter of Fundamental Rights of the European Union, in particular the principle of the prohibition of discrimination and the principle of proportionality.
In that regard, the Court states, in the first place, that, even though they appear in a chapter of Directive 2004/38 entitled ‘Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health’, Article 27(1) and Article 29(1) of Directive 2004/38 expressly refer to ‘freedom of movement’, so that they cover both components of that freedom, namely the right of entry and the right of exit, and thus allow Member States to adopt measures restricting each of those rights on public health grounds. The measures restricting free movement which a Member State may adopt on grounds of public health under those provisions may therefore consist not only of a prohibition on leaving the territory of a Member State in order, as in the present case, to engage in non-essential journeys, but also an obligation for travellers entering that territory to undergo screening tests and to observe quarantine.
In the second place, neither of those two provisions precludes the imposition of such restrictive measures in the form of an act of general application which applies without distinction to any person in a situation covered by that act. Such an interpretation is supported by the fact that diseases that may justify such measures – namely infectious diseases or contagious parasitic diseases such as COVID-19 – are liable, on account of their very characteristics, to affect entire populations irrespective of the behaviour of the individuals making up those populations.
In the third place, the Court points out that, despite their wording, which is, prima facie, designed for individual decisions, all the conditions and safeguards laid down in Articles 30 to 32 of Directive 2004/38 must also be complied with where the restrictive measures are adopted in the form of acts of general application. Thus, pursuant to Article 30(1) and (2) of that directive, any act of general application laying down measures restricting freedom of movement on public health grounds must be brought to the attention of the public by an official publication of the Member State which adopts it and by means of sufficient official media coverage so that the content and effects of that act can be understood, as well as the specific public health grounds relied on in support of that act. Furthermore, in order to comply with the safeguards laid down in Article 30(3) and Article 31 of that directive, the act of general application must be open to challenge in judicial and, where appropriate, administrative redress procedures, the methods for the exercise of which must be communicated to the public. Such restrictive measures must also comply with the principle of prohibition of discrimination laid down in the Charter.
In the fourth and last place, in accordance with the provisions of Article 31(1) and (3) of Directive 2004/38, any measure restricting freedom of movement laid down on grounds of public health must be proportionate in the light of the objective of protection of public health pursued, and the proportionality of such a measure must be assessed having regard also to the precautionary principle. The requirement of the principle of proportionality specifically requires verification, first, that such measures are appropriate for attaining the objective of general interest pursued, in this case the protection of public health, second, are limited to what is strictly necessary, which means that that objective must not reasonably be capable of being achieved in an equally effective manner by other means less prejudicial to the rights and freedoms guaranteed to the persons concerned, and, third, are not disproportionate to that objective, which implies, in particular, a balancing of the importance of the objective and the seriousness of the interference with those rights and freedoms.
As regards the controls designed to ensure compliance with the legislation at issue, the Court holds that such controls are possible within the national territory only on condition that they fall within the exercise of police powers, within the meaning of Article 23(a) of the Schengen Borders Code. Where those controls are carried out directly at internal borders, it is necessary for the Member State to comply with all the conditions referred to in Articles 25 to 28 of that code relating to the temporary reintroduction of border controls at internal borders, given that the threat posed by a pandemic such as the COVID-19 pandemic corresponds to a serious threat to public policy or internal security within the meaning of Article 25(1) of that code.
As regards, in the first place, Article 23(a) of the Schengen Borders Code, the Court recalls that that provision guarantees Member States the right to carry out, within the national territory, including in border areas, controls justified by the exercise of police powers, provided that that exercise does not have an effect equivalent to a border check, which it is for the referring court to ascertain.
To that end, the second sentence of Article 23(a), items (i) to (iv), of that code provides indicia to guide the Member States in implementing such police powers.
In that regard, as regards, first, the indicator in the second sentence of Article 23(a), item (i), of that code, the objectives pursued by the controls must be distinguished from those pursued by border checks, namely those of ensuring that persons may be authorised to enter the territory of the Member State or authorised to leave it. The Court considers that that appears to be the case here, in so far as the main objective of the controls to ensure compliance with the Belgian legislation at issue was to limit, as a matter of urgency, the spread of COVID-19 within the Belgian population.
As regards, second, the indicator in the second sentence of Article 23(a), item (ii), of the Schengen Borders Code, it is sufficient that the controls were decided on and implemented in the light of circumstances objectively giving rise to a risk of grave and serious harm to public health, which may be relied on by a Member State under that provision, and on the basis of the authorities’ general knowledge of the areas of entry to and exit from the national territory through which a large number of travellers targeted by that prohibition were likely to transit.
As regards, third, the indicators set out in the second sentence of Article 23(a), items (iii) and (iv), of the Schengen Borders Code, all the controls at issue in the main proceedings must have been carried out randomly and, therefore, ‘[on the spot]’ and must moreover have been devised and executed in a manner clearly distinct from systematic checks on persons at the external borders of the European Union. In that latter regard, the Court specifies that, in the context of a pandemic such as that of COVID-19, the Member States have some measure of discretion as regards the intensity, frequency and selectivity of the controls.
In the second place, if it is established that the controls at issue were carried out at internal borders, the referring court will have to ascertain whether the Kingdom of Belgium complied with all the conditions referred to in Articles 25 to 28 of the Schengen Borders Code for the temporary reintroduction of border controls at internal borders where there is a serious threat to public policy and/or internal security. The Court states in that regard that a pandemic of a scale such as that of COVID-19 may be classified as a serious threat to public policy and/or internal security within the meaning of Article 25(1) of that code, in so far as it is liable to affect one of the fundamental interests of society, namely that of ensuring the lives of citizens, and in so far as it affects the very survival of a part of the population, in particular the most vulnerable.