Weekend Edition Nº175

A Rulebook for Future Pandemics

David Pérez de Lamo 1

On 5 December 2023, the Grand Chamber of the Court of Justice ruled on the compatibility of Belgian emergency measures limiting free movement of persons to contain the spread of the COVID-19 pandemic with Articles 4, 5, 27 and 29 of Directive 2004/38/EC (the ‘Citizens’ Rights Directive’ or ‘CRD’)2 and Articles 22, 23 and 25 of Regulation (EU) 2016/399 (the ‘Schengen Borders Code’ or ‘SBC’),3 informed by general principles of EU law (Nordic Info vs Belgium, the ‘Judgment’).4 The Court broadly followed the Opinion of Advocate General Emiliou of 7 September 2023 (the ‘AG Opinion’).5

The judgment is highly relevant because, in assessing the compatibility of the specific Belgian containment measures, the Court went out of its way (possibly anticipating future crises) to set out a comprehensive ‘rulebook’ governing Member State emergency measures limiting free movement of persons to contain public health crises, such as widespread epidemics. The judgment is short, but packed with important rulings and guidance for Member States and national courts. In just over 21 pages, and merely 10 pages of ‘substance’, the Court practically summons the full line-up of general principles of EU law (i.e., legal certainty, good administration, effective judicial protection, administrative redress, proportionality, precautionary principle, burden of proof, etc) and balances sensitive national objectives of recognised general interest (i.e., public health, public policy and public security) with central EU law provisions (i.e., free movement of EU citizens and their families, the fundamental right to private and family life, and the freedom to conduct a business).

Below I present the context and the facts of the case (see Sections 1 and 2 below), discuss the two ‘chapters’ of the ‘Pandemic Rulebook’, namely the compatibility of containment measures with the Citizens’ Rights Directive and the Schengen Borders Code (see Sections 3 and 4 below), and finally conclude (see Section 5 below).

1. David Pérez de Lamo is an Associate at an international law firm in Brussels and holds an LL.M. in EU Law and Economic Analysis from the College of Europe (Bruges). He has published contributions in EU competition law and constitutional law. The views expressed are my own and do not reflect the views of my employer/firm.

2. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ L 158, 30.4.2004, p. 77–123.

3. Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 77, 23.3.2016, p. 1–52.

4. Judgment of the Court of Justice of 5 December 2023, Nordic Info v Belgium (C-128/22, EU:C:2023:951).

5. Advocate General Emiliou’s Opinion of 7 September 2023 in Nordic Info v Belgium (C-128/22, EU:C:2023:645).

1. COVID-19 Strikes, Governments Respond, Legal Challenges Are Sought

2020 beheld a crisis unprecedented in modern times. Its onset was sudden. Its spread was rapid. And its effects were devastating. The world was unprepared. Epidemiologists had already widely noted the risk of ‘spill-over’ of diseases from animals to humans (a process called ‘zoonosis’).6 There were numerous warning signs (well-known diseases of zoonotic origin include Ebola, Malaria and HIV), even very recently (famously, the ‘Spanish Flu’ in 1918-1919,7 but also SARS in 2003,8 H1N1 in 2009-2010,9 and MERS in 2012,10 among other less well-known but serious cases).11 The next pandemic was only a question of time. Yet, ‘no one’ expected what was to come.

In December 2019, clusters of patients in the city of Wuhan, in China’s Hubei Province, began experiencing symptoms of an atypical pneumonia-like illness that did not respond well to standard treatments. In January 2020, public health officials identified a novel coronavirus. Foreboding videos of Chinese hospitals being built at lightning speed, in just days, were viewed with scepticism around the globe. In February 2020, the Philippines reported the first death outside China; a few days later, on the other side of the world, France announced the first death in Europe; Dr. Li Wenliang, a Chinese doctor who tried to raise the alarm, died; and the WHO proposed an official name for the malady: coronavirus disease 2019, shortened as ‘COVID-19’. However, it would not be until 11 March 2020, after more than 118,000 cases in 114 countries and 4,291 deaths, that the World Health Organisation (‘WHO’) would declare COVID-19 as a pandemic and raised the threat to the maximum level on 16 March 2020.12 Four years later, the WHO counts over 773 million reported cases and close to 7 million reported deaths.13 Uncounted millions suffered and died from COVID-19 or indirectly as ‘collateral’. COVID-19 is still, and will be, with us.

In the profound uncertainty surrounding the COVID-19 outbreak, reasonably fearing disastrous consequences, governments responded with draconian force, locking down entire populations, imposing social-distancing and containment measures, and spending record budgets to mitigate the health, social and economic crisis. In the EU, COVID-19 put a temporary, but harsh and protracted, end to over seven decades of ‘free movement’ and two decades of ‘borderless Europe’.14 Suddenly, we went back in time. Member States reinstated border-like controls and formalities, turning them on and off as the COVID-19 pandemic waves hit their shores. Timeless were, however, the eerie pictures of Europe’s most emblematic landmarks, bustling avenues, and animated terraces, all empty, contrasting, in some places like Brussels, with a blooming spring, the sunniest in memory.

6. See e.g., D. Quammen, Spillover: Animal Infections and the Next Human Pandemic, 2012.

7. J. M. Barry, The Great Influenza, Viking Press, 2004.

8. World Health Organisation, ‘Severe Acute Respiratory Syndrome (SARS)’.

9. World Health Organisation, ‘Influenza A (H1N1)’.

10. World Health Organisation, ‘Middle East respiratory syndrome coronavirus (MERS-CoV)’.

11. World Health Organisation, ‘Hendra virus infection’.

12. See detailed timelines at e.g., Centers for Diseas Control and Prevention, ‘COVID-19 Timeline’ and The New York Times, ‘A Timeline of the Coronavirus Pandemic’

13. World Health Organisation, ‘COVID-19 dashboard ’.

14. S. Koikkalainen, ‘Borderless Europe: Seven Decades of Free Movement ’, Migration Policy Institute, 2021.

The first case brought before the EU Courts concerning the compatibility of national measures to contain the COVID-19 pandemic with EU law was Nordic Info v Belgium

Government measures were praised and criticised with similar effusiveness, to the swing of the political gavel, sometimes with the deceptive benefit of hindsight. They created social unrest and seriously affected all citizens and businesses (arguably mitigating a worse evil). As expected, legal challenges were brought against containment measures before national courts. For instance, on 14 July 2021, the Spanish Constitutional Court notably ruled that Royal Decree 463/2020 of 14 March, and its subsequent amendments, declaring the state of emergency for the management of the health crisis caused by COVID-19,15 was partially unconstitutional, particularly the provisions establishing general confinement measures, insofar as the Government had effectively ‘suspended’ free movement rights guaranteed by Article 19 of the Spanish Constitution16 using an incorrect legal basis, instead of the pertinent and more onerous Article 55 of the Spanish Constitution.17 The first case brought before the EU Courts concerning the compatibility of national measures to contain the COVID-19 pandemic with EU law was Nordic Info v Belgium

2. Belgium Enacts Restrictive Measures, Nordic Info Seeks Damages

Following in the footsteps of other Member States across the EU, on 30 June 2020, Belgium adopted Article 18 of the Ministerial Decree on emergency measures to limit the spread of the COVID-19 coronavirus, amended on 30 July 2020, which: (i) prohibited all non-essential travel to/from Belgium, and, derogating therefrom; (ii) authorised travel from

15. Real Decreto 463/2020, de 14 de marzo, por el que se declara el estado de alarma para la gestión de la situación de crisis sanitaria ocasionada por el COVID-19, «BOE» núm. 67.

16. Constitución Española, «BOE» núm. 311, de 29/12/1978.

17. Judgment of the Spanish Constitutional Court of 14 July 2021, 148/2021, ES:TC:2021:148. For commentary, see e.g., G. DomenechPascual, ‘Dogmatism Versus Pragmatism. On the Fundamental Rights Restrictions Aimed at Fighting COVID-19’ Indret, 2021; J. A. García Amado, ‘Ideas de Constitución y metodologías constitucionales en la sentencia sobre el estado de alarma’, Almacén de derecho, 2022.

Belgium to all countries of the EU, the Schengen area and the United Kingdom, and vice versa, with the exception of territories designated as ‘red zones’, based on their epidemiological situation, in a list published on the website of the Federal Public Service for Foreign Affairs. In addition, any traveller arriving to Belgium from a country classified as a ‘red zone’ had to undergo screening tests and observe quarantine. Pursuant to Article 187 of the Law of Civil Security, the infringement of these provisions was punishable by a term of imprisonment of eight days to three months and/or a fine of EUR 26-500 (all together, the ‘Belgian Legislation’).

On 12 July 2020, Belgium classified Sweden as a ‘red zone’ and, on 15 July 2020, as an ‘orange zone’, which entailed that travel to and from Sweden was no longer prohibited, but remained not recommended. Nordic Info, an agency specialising in travel to and from Scandinavia, claimed that, as a result thereof, it had to cancel all scheduled trips from Belgium to Sweden during the 2020 summer season in order to comply with the Belgian Legislation. Nordic Info initiated proceedings before the Brussels Court of First Instance seeking damages compensation from the Belgian State and raising a plea of incompatibility of the Belgian Legislation with: (i) the Citizens’ Rights Directive and national provisions transposing Articles 27-31 CRD; and (ii) the Schengen Borders Code. The Brussels Court of First Instance raised these issues to the Court of Justice via a request for a preliminary ruling in February 2022, outlining the interpretative doubts, which I address below.18

3. Pandemic Rulebook, Chapter 1: Compatibility of Restrictive Measures with the Citizens’ Rights Directive

3.1 Member States Can, As a Matter of Principle, Restrict Free Movement to Respond to Pandemics

Article 27(1) CRD provides that Member States may restrict freedom of movement and residence of Union citizens and their family members on grounds of public policy, public security or public health, but not to serve economic ends. According to Article 29(1) CRD on ‘public health’, the only diseases justifying measures restricting freedom of movement are those with epidemic potential as defined by the WHO and other infectious diseases or contagious parasitic diseases. On this basis, the Court affirmed that ‘Member States may, a fortiori, adopt […] measures restricting freedom of movement in order to respond to a threat linked to a contagious infectious disease which is of a pandemic nature recognised by the WHO’, as did Belgium.19

3.2 Member States Can Restrict Both Entry and Exit

The Court added that, despite Articles 27 and 29 CRD being in Chapter VI entitled ‘Restrictions on the right of entry […]’ and Articles 29(2) and (3) CRD being devoted specifically to restrictions on the right of entry (i.e., the right to be admitted to the territory of a Member State), Member States may also restrict the ‘right to exit’ (i.e., the right to leave the territory of a Member State to travel to another Member State) because: (i) ‘freedom of movement’ (Articles 20(2)(a) and 21(1) TFEU) encompasses both components (Articles 1(a), 4 and 5 CRD); and (ii) if the restrictions imposed to curb an epidemic disease under Articles 27 and 29 CRD were only applicable to the right to entry, those measures would be logically rendered ineffective.20

18. Summary of the Brussels Court of First Instance’s request for a preliminary ruling available here

19. Judgment, paras 49-54; emphasis added.

20. Judgment, paras 55-59.

The widespread effects of COVID-19 tested the legislator’s assumption and the resulting text of Chapter VI, which the Court reasonably extended in light of the context and objectives of the Citizens’ Rights Directive

Possibly, the prevailing references to the ‘right to entry’ in the title and body of Chapter VI are explained by the legislator having in mind the most common situation, which typically is that a Member State would restrict entry to its territory on public policy, public security or public health grounds, and not so much exit therefrom, which would be for other Member States to meet by limiting entry to their territories. The widespread effects of COVID-19 tested the legislator’s assumption and the resulting text of Chapter VI, which the Court reasonably extended in light of the context and objectives of the CRD, testing in turn the Court’s working assumption that interpretatio cessat in claris21 (i.e., a clear text may sometimes be overridden by even clearer context and objectives).

3.3 Member States May Adopt Acts of General Application

By contrast to restrictive measures imposed on public policy or public security grounds, which, under Article 27(2) CRD, must ‘be based exclusively on the personal conduct of the individual concerned’ and rely on ‘the particulars of the case [and not] considerations of general prevention’, the Court stated that restrictive measures imposed on public health grounds may take the form of an act of general application, given that epidemic diseases ‘on account of their very characteristics, […] affect entire populations’.22

In its mission to uphold EU citizenship, the Court had interpreted limitations to free movement on general interest grounds ‘strictly’,23 even if allowing certain discretion to Member States (e.g., in defining what constitutes public health, public policy and public security, as defining these concepts in concreto may impinge on national sovereignty),24 by consistently emphasising the need to rely on the personal conduct of the individual concerned and the particulars of the case, i.e., Member States had to put forward ‘precise evidence’ and ‘general assertions’ of public-policy interests were not sufficient.25 In Nordic Info v Belgium, the Court reasonably takes a step back from Article 27(2) CRD and the abovementioned case law, this time unrestrained by text because Article 27(2) CRD does not refer to ‘public health’, and relies on Article 29 CRD on ‘public health’ that has a different ‘exceptionality’ rationale, and for that reason is laid down separately.

21. K. Lenaerts and J. A. Gutiérrez-Fons, Les méthodes d’interprétation de la Cour de justice de l’Union européenne, Larcier, 2020, paras 13, 16 and 18.

22. Judgment, paras 62-64.

23. Judgment of the Court of Justice of 4 December 1974, Van Duyn v Home Office (C-41/74, EU:C:1974:133, para 18).

24. Van Duyn v Home Office, para 18 in fine.

25. See e.g., Judgment of the Court of Justice of 22 December 2008, Commission v Austria (C-161/07, EU:C:2008:759, para 37). See further C. Barnard, The Substantive Law of the EU, The Four Freedoms (5th ed.), Oxford University Press, pp. 450 et seq.

3.4 Member States Have to Respect Procedural Safeguards, But Enjoy Leeway

Article 27(1) CRD further provides that restrictive measures imposed on public health grounds are ‘[s]ubject to the provisions of this Chapter’, particularly the procedural safeguards laid down in Articles 30-32 CRD. While the Court recognised that ‘the terms and expressions used in Articles 30 to 32 call to mind restrictive measures laid down in the form of an individual decision’, the Court concluded that those safeguards must also apply to restrictive measures of general application.26 AG Emiliou had noted that ‘the terms ‘measures’ and ‘decisions’ are used seemingly interchangeably in the [CRD]’.27 And more broadly, this interpretation flows from recitals 25-27 CRD, as well as the general principles of legal certainty and good administration, and the right to effective judicial protection ex Article 47(1) CFREU.28

Accordingly, restrictive measures taking the form of an act of general application must mutatis mutandis:

i. ‘be brought to the attention of the public by an official publication of the Member State […] 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 and full public health grounds relied on […], and […] the remedies and time limits for challenging it […]’ per Article 30 CRD;29

ii. be open to challenge before national courts and, where appropriate, administrative redress procedures, either by direct action or, if necessary, incidentally in an action against an act implementing the general act per Article 31 CRD;30

iii. be non-discriminatory per recital 31 CRD and Article 21 CFREU;31

iv. be appropriate, necessary and proportionate per Article 30(3) CRD (and as self-standing general principles of EU law), which, inter alia, require that the restrictive measures:

a) be balanced against other rights and freedoms affected by them, considering that ‘the health and life of humans rank foremost among the assets and interests protected by the TFEU’;

b) take account of the discretion of Member States in determining the degree of protection that they wish to afford to public health, which may therefore vary between Member States without that difference in itself making a given measure disproportionate;

c) may be adopted preventively, based on the precautionary principle, before the risks to human health become fully apparent; and

d) be supported by appropriate evidence, having the Member State the burden of proof.32

26. Judgment, paras 65-67.

27. AG Opinion, para 73.

28. Judgment, paras 68-72; AG Opinion, paras 73 and 115.

29. Judgment, paras 71 and 73.

30. Judgment, para 72.

31. Judgment, para 74.

32. Judgment, paras 75-80.

The Court of Justice ‘deferred’ to the national court to assess the compatibility of the Belgian Legislation with the abovementioned principles based on the facts of the case; however, subject to very detailed ‘guidance’, or rather concrete instructions (possibly also addressed to national authorities and courts facing future pandemics), as the Court typically does in such high-stakes cases.33

In assessing the appropriateness of the contested restrictive measures, the national court must inter alia consider:

- ‘whether, in the light of the scientific data commonly accepted at the [relevant] time […], concerning the COVID-19 virus, of the trend in cases of infection and mortality […] and in view of the [ensuing] degree of uncertainty […], those measures […] were appropriate, having regard to the national healthcare system being overwhelmed or the risk thereof and to the summer period characterised by an increase in leisure travel and tourism, which are conducive to an increase in infections, to contain or curb the spread of that virus […], as the scientific community, the EU institutions and the WHO appeared to accept’;34

- other similar measures adopted by the Member States, which were accompanied and coordinated by the EU;35 and

- the consistency of Belgium’s broader strategy and measures to limit the spread of COVID-19 (e.g., testing, quarantine obligations and contact tracing), considering that they were applied indistinctly to any traveller entering the Belgian territory.36

In assessing the necessity of the contested restrictive measures, the national court must inter alia consider:

- that the restrictive measures prohibited only non-essential travel and solely to/from Member States regarded as high-risk zones, based on lists that were frequently updated;37

- that screening and quarantine measures were temporary and aimed at travellers coming from Member States where they had been exposed to an increased risk of infection so as to detect and prevent the spread of COVID-19;38

- whether it is ‘evident […] in the light […] of the available information on the COVID-19 virus at the [relevant] facts’, paying due deference to the abovementioned Member State discretion and the precautionary principle, that the obligations to maintain social distancing and/or wear a mask and to regularly carry out screening tests, by themselves, would have sufficed to achieve the same result as the Belgian Legislation;39 and

33. Judgment, paras 81 et seq

34. Judgment, para 82.

35. Judgment, para 83.

36. Judgment, paras 54, 83-86.

37. Judgment, para 88.

38. Judgment, para 89.

39. Judgment, para 90.

- in that regard, ‘the epidemiological situation in Belgium at the [relevant] time […], the extent to which the Belgian health system was overstretched or overwhelmed, the risk of an uncontrollable or severe resumption of infections […], the fact that certain persons carrying the disease could be asymptomatic, incubating or testing negative in screening tests, the need to target as many people as possible in order to curb the spread of the disease […] and to isolate infected persons and the combined effects, in terms of the protection of the population […]’.40

In assessing the proportionality stricto sensu of the contested restrictive measures, the national court must reconcile and balance the objective of protecting public health with the fundamental rights and principles affected, inter alia considering:

- regarding the restriction on freedom of movement of EU citizens and their families ex Articles 20(2)(a) and 21 TFEU and Article 45 CFREU, and the right to respect their private and family life ex Article 7 CFREU, that the restrictive measures ‘did not prohibit […] travel justified by imperative family reasons and that the exit bans were lifted as soon as the Member State of destination concerned was no longer classified as a high-risk zone on the basis of a regular re-evaluation of its situation’;41 and

- regarding the freedom to conduct business ex Article 16 CFREU, that ‘it did not seem unreasonable to prohibit on a temporary basis non-essential travel to [high-risk] Member States until their public health situation improved’.42

Moreover, the national court must verify the proportionality of the compulsory quarantine imposed on every traveller entering Belgium from a high-risk Member State considering that ‘(i) there was a significant probability that such a traveller would carry the same virus and, in particular where he or she was incubating or asymptomatic, would infect other persons outside his or her household […] and (ii) the screening tests may have proved to be falsely negative’.43 By contrast, the Court conclusively found that the compulsory screening measures did not meaningfully restrict other freedoms ‘on account of the rapidity of the tests’.44

40. Judgment, para 91.

41. Judgment, para 94.

42. Judgment, para 95.

43. Judgment, para 97.

44. Judgment, para 96.

In assessing the proportionality stricto sensu of the contested restrictive measures, the national court must reconcile and balance the objective of protecting public health with the fundamental rights and principles affected

4. Pandemic Rulebook, Chapter 2: Compatibility of Restrictive Measures with the Schengen Borders Code

Articles 22-23 SBC preclude internal border controls within the Union, without that affecting the exercise of police powers by the competent national authorities, so long as those police powers do not have ‘an effect equivalent to border checks’.

Article 25 SBC allows Member States, as a last resort, to temporarily reintroduce border controls in the event of a serious threat to public policy or internal security (public health is not explicitly mentioned), subject to the conditions set out in

Articles 26-28 SBC. Belgium had introduced a series of border controls to verify compliance with the Belgian Legislation, which Nordic Info indirectly challenged before the Court.45

Once again, the Court of Justice deferred to the national court to assess the compatibility of the national border controls with the abovementioned provisions, subject to detailed guidance.46 In particular, the national court has to observe the nonexhaustive indicia set out in Article 23(a)(i)-(iv) SBC, considering inter alia that:

- ‘the [Belgian Legislation] appear[s] to differ in certain essential respects from those pursued by border checks’ insofar as ‘the main objective of those controls was to limit, as a matter of urgency, the spread of COVID-19 […]’;47

- threats to public health may fall within the scope of police powers set out in Article 23 SBC, even if not expressly referred to in Article 23(a)(ii) SBC, because the controls were ‘implemented in the light of circumstances objectively giving rise to a risk of a grave and serious harm to public health’ in light of ‘the extreme difficulty, or even the impossibility, of determining in advance which persons using various modes of transport [travelled to/from high-risk] Member States’;48 and

- police measures must be ‘devised and executed in a manner clearly distinct from systematic checks’ and based on ‘spotchecks’ pursuant to Article 23(a)(iii)-(iv) SBC, which Belgium claimed to have respected by conducting random checks.49

Finally, the Court of Justice held that, in any event, ‘[a] pandemic of a scale such as that of COVID-19, characterised by a contagious disease capable of causing death among various categories of the population and overstretching or even overwhelming national healthcare systems’ can be subsumed as a ‘public policy’ or ‘internal security’ concern under Article 25 SBC, even if public health is not explicitly listed therein as a self-standing derogation ground, thus enabling Member States to temporarily reintroduce border controls subject to compliance with the conditions set out in Articles 25-28 SBC.50

45. See details at Judgment, paras 107-108.

46. Judgment, para 109.

47. Judgment, para 114.

48. Judgment, para 117-120.

49. Judgment, paras 121-122.

50. Judgment, paras 123-128.

5. Final Comments

As noted by AG Emiliou,51 the Court had previously dealt with cases concerning COVID-19 incidentally,52 the lawfulness of EU emergency measures to protect against the ‘mad cow’ disease outbreak,53 as well as the underlying issue of balancing measures taken by public authorities to tackle general threats to society (e.g., fight against crime and terrorism) with the fundamental rights of the persons affected.54 Nordic Info v Belgium is, however, the first precedent where the Court of Justice reviewed the compatibility of national measures to contain the COVID-19 pandemic with EU law, particularly the Citizens’ Rights Directive and the Schengen Borders Code.

In my view, the Court did not allocate the case to the Grand Chamber due to the complexity of the legal issues, whose solution was expected and, allow me to simplify, ‘relatively straight-forward’. The Court allocated the case to the Grand Chamber because of the transversal implications of the case, as it covered many general principles of EU law, fundamental provisions and sensitive issues.55 The judgment bears the mark of the Court’s signature ‘broad brushstroke’. But the Court fulfilled its role and went as far as possible to provide detailed guidance to the referring national court (blurring as always the boundaries between law and fact, between its own competence and that of national courts),56 while taking the opportunity to ‘future- proof’ against possible epidemics by setting out the basic EU law standards and principles governing national emergency measures to tackle widespread crises.

51. AG Opinion, para 4.

52. See e.g., Judgment of the Court of Justice of 14 September 2023, RTG v Tuk Tuk Travel (C-83/22, EU:C:2023:664).

53. Judgment of the Court of Justice of 5 May 1998, United Kingdom v Commission (C-180/96, EU:C:1998:192).

54. Judgment of the Court of Justice of 6 October 2020, La Quadrature du Net and Others (C-511/18, C-512/18 and C-520/18, EU:C:2020:791).

55. See Introduction and Sections 3 and 4 above.

56. V. Passalacqua and F. Costamagna, ‘ The law and facts of the preliminary reference procedure: a critical assessment of the EU Court of Justice’s source of knowledge’, European Law Open, 2023, pp. 322-344.

The Court invites the national court to situate itself at the relevant time, with all the considerable constraints, profound uncertainty, daunting risks, and preliminary scientific/inter-governmental consensus, before making a definitive ruling on the matter

Reading between the lines, the Court leaves a message. In short, it is possible that our understanding of COVID-19 and the appropriate epidemiological response has evolved, and we may even have realised that certain measures might have been ineffective or disproportionate ex post (there are countless reports in opposite directions),57 but the Court invites the national court to situate itself at the relevant time, with all the considerable constraints, profound uncertainty, daunting risks, and preliminary scientific/intergovernmental consensus, before making a definitive ruling on the matter. In my view, it will be hard, maybe even questionable, for the national court alone to “replace” the Belgian Government’s assessment, which, in view of those complexities, should enjoy a very wide margin of appreciation, unless, that is, any manifest errors can be discerned.

It will be interesting to see how the Belgian court applies the Pandemics Rulebook in concreto, though the Court of Justice did not leave much leeway.

Another possible point of tension may be the systematicity of the controls implemented by Belgium (which the Government seemed to understate as ‘random’ and the Court expressly invited the national court to verify) and the extent to which the national court may be able to ‘clearly’ distinguish them from measures having an effect equivalent to border checks in the sense of Article 23(a)(iii)-(iv) SBC. While the Court strongly caveated all other findings, the Court seemed to struggle to reconcile (i) the extraordinary circumstances and the willingness to continue affording discretion to Member States with (ii) the wording of Article 23(a)(iii)-(iv) SBC, which possibly hints at a particular legislative choice: that the EU generally remains ‘borderless’ (at least internally). The national court may overcome this obstacle by relying on Article 25 SBC, the dedicated provision, but it will still have to meet the seemingly onerous criteria set out in the ensuing Articles 26-28 SBC.

History and science tell us that, unfortunately, COVID-19 will not be the last pandemic. The ‘solution’ will not come from the Court. It will come from the hard lessons learned from COVID-19 and the preventive efforts that international organisations, governments, businesses and citizens must undertake. Dare I say that we failed the ‘dress rehearsal’, even if in the end we overcame it (at immense cost). Let us be prepared for ‘the next one’.

See e.g.,

57.

A. Radulescu et al, ‘Management strategies in a SEIR-type model of COVID-19 community spread ’, Nature, Scientific Reports, 2020; G. J. Milne et al, ‘A modelling analysis of the effectiveness of second wave COVID-19 response strategies in Austrialia’, Nature, Scientific Reports, 2021; M. Schröder, ‘COVID-19 in South Africa: outbreak despite interventions’, Nature, Scientific Reports, 2021, etc.