Abstract
One of the consequences of the covid-19 crisis is the reintroduction of controls at the external and internal borders of the EU Member States. This happened in disorder because the competent authority are each Member State despite decisions appear to be taken at the European level. Public health is not always foreseen as a legal basis for those measures, but they can be justified by the exceptional crisis comparable to a threat for public order. The measures taken are not only border controls but more precisely border closures more or less selective. Member States were supposed to cooperate between each other and with the European Commission when taking those measures. All persons (nationals, EU citizens and third-country nationals) were targeted) knowing that most of them have the right to return to their Member State of nationality or of residence. Borders measures have been quickly replaced by health measures so that the Schengen are is not at risk of collapsing.
Highlights
A Commission communication of 1999 states that “The public health reason grounds are somewhat outdated given the current level of integration of the European Union and the development of new means to handle health problems
Border controls reappeared inside the Schengen Area during the last two weeks of March 2020 in emergency2 without coordination between Member States to limit the spread of the virus
One could have expected more coherence at this stage due to the fact that a decrease of the epidemic was not an unforeseen circumstance, and Member States had the time to prepare themselves on the basis of a Commission Communication of May 13, 2020 titled “Toward a phased and coordinated approach for restoring freedom of movement and lifting internal border controls”6
Summary
Crisis Resurrects the Public Health Exception in EU Migration Law. Front. That most internal border controls have been lifted, the recommendation 2020/1,475 of October 13, 2020 on a coordinated approach to the restriction of free movement in response to the covid pandemic favors the use of tests or of quarantine measures instead of refusals of entry at the internal borders Those health measures, even when they are implemented at the border, should not create a legal problem as long as they do not have an effect equivalent to border checks in the sense of article 23, 1) of the SBC, and they do not represent a disproportionate obstacle to freedom of movement
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