The Virus and the Law

 Almost two months into an unprecedented lock-down – people increasingly start asking questions. “When can we go out again – and visit family and friends? When can we go to school and work? And when can we – residing in Brussels - visit our house in the Netherlands again?  In talk shows around Europe epidemiologists are meanwhile pitched against economists.     

Practice shows that patience and solidarity with the restrictive measures is rapidly decreasing. There are social and psychological reasons for this. Waning interest and a desire for "normality" seems to be plausible and reasonable reflexes. For almost two months we have quarantined and lived confined lives, in the interest of public – and personal – health.

But the questions are not only understandable from a humane perspective. They are also triggered by a sense that after two months of confinement, the limits of fairness have been reached. And fairness relates to what is “just and right”. And that brings us to the virus and the law.

Under the justification of the protection of public - and individual - health, a range of fundamental rights and freedoms has been suspended in blanket-fashion - or their enjoyment seriously reduced. Let’s name a few examples (and there are many more):

  • The Right to Education (Article 14 of the EU Charter of Fundamental Rights): children cannot go to school or university and alternative online-lectures are sub-optimal;
  • Freedom of Movement and Residence (Article 45 of the EU Charter of Fundamental Rights): Individuals are deprived of their freedom of movement and residence within the European Union – the border between Belgium and the Netherlands is closed;
  • Enjoyment of Property Rights (Article 17 of the EU Charter of Fundamental Rights): due to the restriction of the freedom of movement and residence, EU citizens can no longer enjoy their property rights, travelling between residences in multiple EU member States;
  • Freedom of Assembly and Association (Article 12 of the EU Charter of Fundamental Rights) – citizens can no longer gather in public spaces or even in private residences, be it for sports, leisure, politic or just for the fun of getting together;
  • Right to the Integrity of the  Person (Article 3 of the EU Charter of Fundamental Rights) – the restrictions and socio-economic consequences may in various ways affect citizens’ physical and mental integrity;
  • Right to Asylum (Article 18 of the EU Charter of Fundamental Rights) – this fundamental right was systematically and deliberately denied to individuals newly arriving at the EU borders.

The restriction of these fundamental rights and freedoms can in principle be justified on grounds of public – and individual health - mindful of the current unprecedented circumstances. But for how long?  The restrictions and extraordinary measures should pass another test: they must be necessary and proportionate. Otherwise their legality can be called into question.

There is an increasing need for an authoritative legal appreciation of these measures and testing them in court. In the EU, the legality of measures could be reviewed, depending on their type and level, by national courts or by the EU Court of Justice (via the preliminary ruling procedure, or, in certain cases, via a direct action). Importantly, questions on the compatibility of national measures with EU Law, raised in a national court in any of the 27 EU Member States, could be referred for a preliminary ruling to the EU Court of Justice. A ruling by the EU Court of Justice on the compatibility of the national measures with EU Law will be helpful to understand the options and limits of intrusive and restrictive measures. Such a ruling will add to our Acquis Communautaire in the sphere of fundamental rights and freedoms and will contribute to better legislation and more proportionate measures.

The European Convention on Human Rights (1950), the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966) could also be brought into play. But a check of the national Covid-19 measures against EU Law is by far more impactful in the short term and such rulings will instantly become part of the Acquis Communautaire - the total of accumulated European legislation, legal acts, and court decisions which constitute the body of European Law.      

Jeroen Jansen is Founder and Managing Partner at Acquis EU Law & Policy