EU Travel Restrictions Update

With Europe facing a new spike of Covid-19 infections, accompanied by a second wave of national and regional lockdown measures imposed by the governments of many EU Member States, many of us are asking the question “can I still travel?”

In the European Union, we have been long used to the idea that we can travel and reside freely to between the EU Member States, and in recent years it has become increasingly easy to travel to most of the countries outside the EU. Therefore, when in spring 2020, during the first series of Covid-19 lockdowns imposed by governments around the world, we saw many borders closed and fleets of international airlines fully grounded – it felt shocking and surreal.

When the complete lockdowns gradually got lifted during the summer, there still remained a lot of confusion as to what destinations were open for travel which categories of travels were permitted. The communications published by national governments in this regards changed frequently and often did not fully reflect the real applicable rules.

So what is the situation with the travel restrictions today? This article seeks to provide some clarity regarding this question and hopefully will be of help to some readers (we all want to go home for Christmas!).

Starting with the basics, it is important to remind ourselves, that free movement of people is a one of the EU’s fundamental freedoms, enshrined in the founding Treaties of the Union, and, together with other fundamental principles of EU Law sits on top of the hierarchy of the EU’s legal order. This means that any restrictions of this freedom , especially on a larger scale, have to be justified by very serious grounds, be proportionate, and as limited as possible.

During the Covid-19 pandemic, this freedom of movement, guaranteed under Articles 21 and 45 of the Treaty on the Functioning of the European Union (TFEU) has to be carefully balanced against another important regal rule, laid down in Article 168 of the Treaty – the requirement to ensure a high level of human health protection.

With these legal principles and trade-offs in mind, in October 2020 the EU has adopted the Council Recommendation on a coordinated approach to the restrictions on free movement to the COVID-19 pandemic.

This 7-page document is really worth reading if you are planning a trip from an from a country within the EU to an to any other EU destination in coming weeks, as it provides a clear set of principles and rules agreed by all the 27 EU Member States, that in principle have to be applied throughout the EU (although the Council Recommendation is not legally binding).

The following are the most relevant takeaways from this Council Recommendation:

First of all, travelling between the EU Member States remains allowed – regardless of the purpose – but depending on the Member State and the region of departure may be subject to certain conditions and requirements. Therefore, if you are travelling to another EU Member State, that Member State should in principle not refuse your entry into its territory if you comply with the applicable requirements. This principle applies to all travellers within the EU, including EU citizens and nationals of non-EU countries.
The specific requirements applicable to a traveller as an entry condition should be based only on the grounds of the protection of public health, have to be necessary, proportionate and should not be discriminatory. In particular, the restrictions cannot be based on the citizenship of the traveller, but should be based on the country of departure and on the location(s) of the person during the 14 days prior to arrival.
The Member States have to apply the common key criteria in deciding what restrictions (if any) they apply to travellers from different countries and regions within the EU. The three key criteria are: (i) the total number of newly notified COVID-19 cases per 100,000 population in the last 14 days; (ii) the percentage of positive tests among all tests for COVID-19 infection carried out during the last weeks; and (iii) the number of tests per 100,000 population carried out during the last week. Importantly, these measurements are made per region and not for whole territory of each Member States – which is particularly important for the larger Member States (such as France, Spain, Germany), but is also relevant to the smaller Member States, as the numbers of infections often differ dramatically in different parts of the same country.

Depending on the level of the spread of the COVID-19 in each of the regions, and taking into account the number of tests carried out, all the regions within the EU Member States are classified into four categories:
- The “green” areas (the lowest number of new COVID-19 cases and the lowest percentage of positive tests);
- The “orange” areas (where only one of the two above mentioned criteria exceeds the numbers defined as the maximum thresholds for green zones);
- The “red” areas (where both the number of new COVID-19 cases and the percentage of positive tests exceed the defines threshold).
- The “grey” areas – the areas for which available information is not sufficient (for example due to the low testing rates)

A specialised EU body – the European Centre for Decease Prevention, publishes and regularly updates maps of EU Member states, broken down into regions colour-coded accordingly as green, orange, red and grey areas. These maps, which in addition to the EU Member States include Iceland, Liechtenstein and Norway, are used as the common ground by all the EU Member States in deciding on the restrictions applied by them to travellers from any part of the EU.

Travellers from the green areas can enter any EU Member States freely without any major COVID-19 restrictions applied to them.

If you are travelling from an orange or from a red area – the entry should still be allowed, but can be made subject to the requirement to undergo a quarantine / self-isolation period of certain duration (typically it varies between 7-14 days, depending on the Member State), and/or undergo a test for COVID-19 infection (prior or upon arrival, depending on the Member State).

The good news for business travellers and for those travelling to visit their family abroad, is that according to the Council Recommendation the requirement to undergo a quarantine should not be applicable to persons travelling for “imperative family or business reasons”. This category of reasons is not defined in the Council Recommendation, but as regards the imperative family reasons, the typical examples would include a funeral, childbirth need to take care of an ill family member, or other emergency family situations. For business reasons the national authorities are expected to be more lenient as it would not be practical or appropriate for border control officers to judge what reasons are important or not for a specific company.

Travellers can be required to fill in special forms, in intended to identify which of the abovementioned rules are applicable to them and to facilitate the control of compliance with these rules.

Each Member state has a dedicated website and a telephone helpline, providing guidance on the specific rules applicable in that Member States to travellers to and from individual regions of the EU. These sources should be consulted before planning a trip to another EU Member State, as the colours of different areas on the common map, and the respective requirements, change constantly.

To summarise, the common rules outlined in the Council Recommendation provide a welcome degree of clarity for travellers, and the encouraging conclusion from these rules is that travelling within the EU remains possible, and the restrictions applied in certain cases are reasonable and tailored to the type of travellers and the regions involved.

These rules, however, do not apply to travellers from outside the EU. Each Member State decides individually what restrictions they apply to travellers from different non-EU countries. For example, France has recently closed its borders to all travellers from outside the EU, while Belgium has published a list of non-EU countries designated as ‘green’ with no COVID-19 related restrictions applicable to travellers from and to those countries.

As a final remark, besides the formal rules regarding travel restrictions, discussed above, even the travels from within the non-restricted categories can in practice be complicated due to the national lockdown measures, recently re-imposed by an increasing number of EU Member States. For example when hotels and restaurants are closed, a planned business trip will often become extremely difficult. In addition, airlines frequently reschedule or cancel flights due to the reduced number of passengers.

Nevertheless, the current situation is much better than the completely closed borders and uncoordinated national measures we witnessed during the first wave of pandemic, and with a bit of extra patience and determination, justified by the current public health situation, most of the necessary trips can take place.