Weekend Edition Nº59 by eulawlive

Nº59

MAY 21

2021

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ULLA NEERGAARD, JAAN PAJU & JUHA RAITIO

BROKEN WINGS: CLOSURE OF BORDERS IN THE THREE NORDIC EU MEMBER STATES DURING THE COVID-19 PANDEMIC

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Broken Wings: Closure of Borders in the Three Nordic EU Member States during the COVID-19 Pandemic 1

Ulla Neergaard, Jaan Paju & Juha Raitio

Denmark became a member of the EU much later, namely in 1973, and Sweden and Finland even later, namely in 1995 (whereas Iceland and Norway are only associated through EFTA). Today, the Nordic Passport Union – in ‘normal’ times – allows citizens of these countries to travel and reside in other Nordic countries without any travel documentation or a residence permit. However, throughout the rst year under the yoke of the pandemic, not only fundamental principles of EU law, but also the essential spirit of cooperation among the Nordic countries – one could even refer to the Nordic soul – have been challenged by the many border-related restrictions laid down.

“[T]o travel is to live” are words which probably constitute some of the most known quotes put forward by the famous Danish author, Hans Christian Andersen. If the saying is true, then the EU, by continuously having made it easier to travel and live abroad, makes us all more alive. However, the many COVID-19 restrictions which have been launched over the past year have obviously had the opposite eﬀect, making it almost impossible to cross borders in Europe and thereby somehow breaking the wings of many. e Nordic countries have also long strived for open borders. In fact, institutionalised cooperation with a vision to make the Nordic region the most sustainable and integrated region in the world constitutes a fundamental part of identity in this part of Europe. is cooperation is considered to be the world’s oldest regional partnership and is seen to have deep roots in politics, economics and culture. For a long time, open borders between those countries have been a top priority, and this was already the case back in the early 1950s when the Nordic Passport Union was launched. In 1962, the Helsinki Treaty – o en referred to as the Nordic Constitution – was signed by Denmark, Finland, Iceland, Norway and Sweden. is should be contrasted with the fact that

Although in many other respects having pursued rather diﬀerent approaches to the handling of the pandemic internally in their countries, the Nordic Member States have in common that they all developed rather strict, yet not identical, approaches regarding their borders. As an example, Danes were, from just before Christmas 2020 until Easter 2021 – and with a few exceptions –, not permi ed to enter Sweden through the Danish/Swedish border, but could do so if entering Sweden from for example Germany (which would then extend a car journey from Copenhagen by about ten hours). ereby, the deve-

1. Professor of EU Law, University of Copenhagen, Denmark; Senior Lecturer in Constitutional Law and Associate Professor in European Law, University of Stockholm, Sweden; and Professor of European Law, University of Helsinki, Finland, respectively.

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ere is an urgent need to tackle the broken wings in Europe

on notice over curbs to free movement. As it has been emphasised that the three Nordic EU Member States – slightly absurdly given the above mentioned historical background – are considered as having been particularly critical in their responses to COVID-19, it is of interest to analyse what exactly has taken place and contrast the choices made with EU law. Although the le ers and the responses are not all publicly available, through public access it has been possible to obtain the main documents related to the three Nordic countries at hand.

lopment of the so-called ‘Øresunds-region’ with the bridge between the Danish capital Copenhagen and the Swedish city Malmö as its central anchor, was put on hold. As is also the case with many other neighbouring countries, which in earlier times may have been in wars with one another, such measures can be the cause of reintroducing otherwise historical, nationalistic competitions and myths that previously had been nearly buried and only kept slightly alive, for instance in football matches. is development may have led to a strengthening of the Nation State at the cost of the EU and good neighbourhood relations and is, in fact, not limited to the Nordic Member States alone.

With that background, the overall aim of this Long Read is to analyse the border-related measures in a broad sense – with the main emphasis on border closures – enacted in the three Nordic EU Member States in light of the le ers from the Commission to them and EU law more generally (however excluding issues regarding the external borders of the EU). On the basis of the three ‘case studies’, certain points of concern will be put forward. Also, it is, inter alia, to be claimed that the theoretical foundation of the EU free movement principles have come to appear as rather fragile a er having been confronted with the stress-test of COVID-19. Another claim to be put forward – with a reference to the title of the Long Read – is that there is an urgent need to tackle the broken wings in Europe to enable them, at

Open borders and free movement in the Nordic countries and in the EU had become such a common reality that it today appears nearly unnatural to have had these suspended. us, it has for a long time given rise to wonder that the Commission did not react to the numerous kinds of border measures enacted by Member States throughout the rst pandemic year. Eventually, even citizens started to send complaints, begging it to take action. en, on 22 February 2021, the Commission nally took some initiative, as it sent administrative le ers to six out of 27 Member States, namely Belgium, Denmark, Finland, Germany, Hungary and Sweden, pu ing them

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least a bit more, to y again, and of course at the same time to protect the health of Europeans, as far as this is reasonably done through necessary measures.

pa erns of reaction are easily detectable and these will, in general terms, be outlined in the following.

e structure pursued is, rst, to sketch the main content of the COVID-19 approach generally taken and the main lines of the pursued border strategies in Sweden, Denmark and Finland from mid-March 2020 to the end of March 2021. Second, the main content of the le ers from the Commission to these Member States and their responses will be outlined. ird, on the basis thereof and with reference to the main elements of relevant EU law ( the EU Coordinated Approach, the foundational principles of internal market law and the EU Borders Code) the focus will shi to bringing various points of concern to the fore. Finally, conclusions will be put forward.

During the rst year of the pandemic, much a ention has been given to the Swedish COVID-19 ‘model’, as it has generally been perceived as the odd one out among those established in Western countries. In essence, it may be described as extremely ‘liberal’, as it builds on fairly few restrictions compared to most other Member States. Essentially, it is constructed on a notion of mutual trust between the State and its citizens respecting the Public Health Authority’s non-binding regulations and recommendations. Also, it operates with authorities acting transparently, through frequent public press conferences and updates on the COVID-19 situation. e independent authorities play a huge role and they, rather than the Government, have pre y much taken the lead over the past year.

e Swedish COVID-19 Approach

1. e Divergent Nordic COVID-19 ‘Models’ and Strategies

e main piece of legislation to ght the COVID-19 pandemic has been the Communicable Diseases Act from 2004 with its focus on voluntary and preventive measures. In addition, the Swedish Parliament delegated competences on the basis of the Public Order Act 1993 to the Government, which in June 2020 issued a binding Governmental ordinance on public gatherings. Not until 8 January 2021 did the Parliament enact a temporary Pandemic Law, which enabled further restrictions as well as a possible lockdown of society.

Sweden, Denmark and Finland have much in common and it is in particular noteworthy that they are all rather wealthy countries and have populations that consider themselves amongst the happiest in the world. Also, they generally constitute sophisticated welfare States as well as thoroughly digitalised societies and – in ‘normal’ times – they score highly in relation to rule of law parameters. In the la er regard, they are three Member States, which are usually known to adhere loyally to EU law. Currently, in all three instances the Social Democratic Party is in power, and in two of these countries, the Prime Ministers are women. Yet, of course, there are at the same time also signi cant demographic, geographical, historical and cultural diﬀerences. With regard to the pandemic, major diﬀerences in

e more detailed ‘legislation’ in Sweden has been enacted by e Public Health Authority. Its nonbinding regulations and recommendations have, as elsewhere, been updated and complemented numerous times since the COVID-19 General Recom-

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Life in Sweden, from a legal point of view, has pre y much remained as it was before the pandemic

e ordinance, which is still applicable at the time of writing, requires a fresh, negative coronavirus test prior to entering Sweden. At the same time, another ordinance applied restrictions resembling an entry ban, which was in force until 1 April 2021. e la er ordinance restricted free entrance to Sweden from Denmark (as well as from Norway and the UK). Article 4 of the ordinance stated that foreigners travelling to Sweden from Denmark, Norway and the UK were to be denied entry. However, there were 18 exceptions to the general rule, whereby it opened up for, among others, frontier workers, as well as Danes residing in Sweden upon presentation of a fresh, negative coronavirus test. Furthermore, parents could visit their children, and Danes resident on the island of Bornholm could travel to other parts of Denmark via Sweden. Still, the majority of citizens wishing to enter Sweden from Denmark were, for the duration of three months, eﬀectively hindered from entering Sweden. As of 1 April 2021, people entering from Denmark again fall under the general ordinance and the same restrictions that other EU/EEA-citizens are subject to apply.

mendations of 1 April 2020. In essence, the recommendations remain the same and include instructions on washing hands, remaining an appropriate distance from other people, avoiding public transport, working, if possible, from home, and avoiding unnecessary travel. Extraordinarily, there has been no lockdown of society, neither fully nor partially. On the contrary , life has pre y much, from a legal point of view, been as before the outbreak of the pandemic. Still, the public has to a large extent respected the non-binding regulations and recommendations. Recently, however, there seems to be a tendency towards a lesser degree of adherence. e overall picture is that Sweden is ghting COVID-19 in its own (open) way. erefore, Sweden’s approach, initiated at the end of 2020 towards its neighbouring country, Denmark (as well as Norway and the UK), was all the more striking. Just before Christmas 2020, a Governmental Ordinance was introduced, restricting entry for EU/EEA Citizens.

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Belonging to the group of ‘ rst-movers’, the Prime Minister, Me e Frederiksen, declared society to be in lockdown already on 11 March 2020 at a historic press conference. Noteworthy, at the same press conference, is that the head of the Danish Health Authority, somehow in con ict with the political choices made, stated that there was no scienti c evidence suggesting that the closing of borders would be effective in limiting the spread of the virus. Nevertheless, at a subsequent press conference held on 13 March 2020, it was declared that the borders would more or less be closed from the following day onwards. Crucially, already at this early stage, the Dae Danish COVID-19 Approach nish Parliament decided to signi cantly alter the socalled Act of Epidemics to, among other things, maIn a way, the Danish ‘model’ both internally and exke it possible to forbid larger associations, to require ternally has become odd, too, just in a different manself-isolation and social distancing, to close shops ner to that of the Swedish. It was at rst described as and restaurants, to introduce sanctions, and so on. It being ‘precautionary’, but is today characterised by has since then been subject to semany as being ‘extremely precauveral amendments. Generally, tionary’. It is of the utmost priority to avoid too many persons, in e Danish 'model' is this act in particular – but not only – has been subject to much fact preferably to ensure that nocriticism from the perspective of ne, are infected simultaneously, characterised by many rule of law. thereby avoiding overwhelming as being 'extremely the capacity of the hospitals and e testing capacity was fairly ultimately limiting deaths as a precautionary’ quickly established and conticause of COVID-19. Also, the nuously intensi ed, and it is tooverall strategy has continuously day – most of the time – extreinvolved direct communication mely well-functioning, easily accessible, free and with the population, which has been based on a comfast, constituting an essential tool in limiting the bination of fear, patience and hope at the same time. spread of the virus. At the time of writing, approxiAppeals to the citizens have continuously been sent, mately 450,000 citizens are being tested every single requesting them to demonstrate so-called ‘ commuday at a daily cost of about 60 million DKK. It is linity spirit’, thereby expecting a high degree of lokely that only once all citizens from the age of 50 and yalty and support regarding the COVID-19 deciup have been vaccinated, will society fully reopen. sions. Overall, the population’s acceptance of the nae various steps taken to restrict the virus have altional handling of the pandemic has been high all ways been followed up by quite generous help pacalong. kages to more or less all businesses affected. e As for outbound travel, the Swedish Ministry of Foreign Affairs issued a recommendation discouraging Swedish citizens from travelling abroad from 14 March 2020 onwards. As the pandemic’s rst wave ebbed away, the Ministry changed its recommendations and li ed that recommendation for travel to Denmark on 29 July 2020, and to Finland on 21 September 2020. As for travelling abroad, the Public Health Authority’s recommendation is to be tested upon arrival with another test on the h day a er return and self-isolation for seven days.

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the note argues that travel guidance is not an EU ma er but is subject to the national competence of the EU countries, which is why the travel guidance of diﬀerent countries may diﬀer. e decision to extend the temporary border control to all Danish borders was stated to have been carried out in line with Articles 25 and 27 of the Schengen Borders Code.

cost of the choices made are seen to be tremendous. e ‘extremely precautious strategy’ has also triumphed in relation to the AstraZeneca and Johnson & Johnson vaccines, where Denmark – despite the recommendations of the European Medicines Agency – decided not to use them following the apparent detection of severe side-eﬀects in the shape of deadly blood clots. e implications are that the date on which the entire population will be fully vaccinated will be delayed because of the reduced number of available vaccines. Evidence of both negative tests and vaccinations are used as input for the issuance of so-called ‘corona-passports’, which are now required to enter areas such as restaurants and universities.

Ever since March last year, generally an intensi cation of the majority of the above mentioned measures have taken place. Importantly, severe bans on entry and border controls have continued to prevail, and documentation of negative COVID-19 tests has become an increasingly important tool in relation to border (re-)entry. Travelling out of Denmark is generally not recommended. Upon (re-)entry into Denmark, requirements for testing and selfisolation play an important role and may, if not ful lled, be followed up by the use of nes.

In connection with the very rst COVID-19 grounded temporary reintroduction of border control in Denmark, which was combined with an entry ban, the Ministry of Justice published a note arguing that the measures were to be perceived as being in conformity with EU Law. Although the note is not very long, thorough or systematically argued, it explains the thinking behind the steps taken at the time. Among other things, it holds that persons who wish to enter Denmark but are not Danish citizens or residents must expect to be rejected at the Danish borders, including at Danish airports, unless they are persons travelling for a ‘worthy purpose’ of entry and do not have any visible symptoms that may be due to COVID-19. As for EU law, the note expresses that the justi cation for preventing entry is primarily found with reference to Article 29 of the EU Citizenship Directive on public health and to the so-called precautionary principle. e principle of proportionality is also argued as being ful lled. e Ministry stresses that since there are no comparable precedents, the assessment is associated with a certain uncertainty. As for the advice to own citizens not to travel to certain countries unless necessary,

e Finnish COVID-19 Approach e cornerstone of the Finnish ‘model’ of coping with the COVID-19 pandemic may be described as a hybrid strategy based on ‘testing, tracing, isolating and treating’ having an ultimate aim of curbing the epidemic while minimising the adverse impact on people, businesses, society and the exercise of fundamental rights. Already in March 2020, the Go-

e cornerstone of the Finnish ‘model’ of coping with the COVID-19 pandemic may be described as a hybrid strategy based on ‘testing, tracing, isolating and treating’

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Haparanda checkpoint additional restrictions to cross-border commuting between Sweden and Finland were adopted. Only necessary commutes for the security of supply and the full functioning of society (for example health care or rescue service related reasons) were allowed. At some other checkpoints, only voluntary testing has been deemed proportionate.

vernment had introduced self-isolation as a measure, restricted traﬃc from the capital Helsinki to other parts of the country, closed down shops (apart from groceries and pharmacies), cinemas, libraries, and so on. Furthermore, schools and universities taught through digital means during the most serious phases of the pandemic. e Finnish Government decided on 11 March 2020 to introduce border controls at the internal borders of the EU, initially from 19 March 2020 until 17 April 2020. Despite the Schengen rules, the adoption of the border controls at the internal borders have been prolonged several times since then, far longer than the period of six months foreseen by Article 25(4) of the EU Borders Code. According to the Finnish restrictions, the Finnish border can be crossed only if based on ‘ imperative reasons’ if coming from countries, where the COVID-19 pandemic is considered to be causing a severe threat to the citizen’s life and health. e list of such countries is continuously updated by the Finnish Institute for Health and Welfare. Some checkpoints have been completely closed for entry with the exception of lorries with cargo. In this context, it is important to note that the Finnish citizens’ right to return to Finland has not been restricted, but in such cases restrictions in the shape of quarantines are in force.

e background to these diverging local approaches is that the regional health authorities were, at rst, not considered to have legal competence to introduce border-control measures such as COVID-19 tests at the borders. However, at the beginning of 2021 the Finnish Institute for Health and Welfare changed its view, as the Constitutional Law Commi ee in early March 2021 had declared that the Finnish Law on Contagious Diseases enables these kinds of measures. While writing this at the beginning of May 2021, a negative COVID-19 test result, proof of having previously had COVID-19 disease or a certi cate of vaccination alone does not entitle a foreign national to enter Finland, but they will have an impact on the health security measures applied upon the person’s entry into Finland. e emphasis is therefore on testing at the Finnish borders. A foreign national must meet the requirements of restriction categories 1 or 2 unless the requirements of normalised traﬃc apply. For example, the traﬃc is normalised between Finland and Iceland. Category 1 is mostly for countries in the Schengen/EU area and category 2 for Russia, the United Kingdom, USA and Turkey. However, several transport operators require a certi cate of a negative COVID-19 test result as a condition for boarding.

Not until the spring of 2021 did the regional state administrative agency in Southern Finland adopt compulsory COVID-19 test requirements in the harbours of Helsinki, Helsinki-Vantaa airport and in the checkpoint Vaalimaa in the South-Eastern Finnish-Russian border due to the ever-growing concern for the rising infection rates. In other parts of Finland, more stringent measures were introduced earlier on. For example, at the Northern Tornio-

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the virus to inhabitants. Some might, however, rather claim that the measures were put into force to full a symbolic role, serving as a demonstration of political determination and as giving the population an impression of security in otherwise frightening times. Under all circumstances, all three Nordic countries have, at times, been quite strict in their approaches, however Denmark both internally and externally has undoubtedly and continuously been the strictest of all. Also, it appears that each of the three Member States have acted rather unilaterally, which has the potential to cause signi cant disruptions of, inter alia, the internal market, but also of the Nordic cooperation.

Comparison In many respects, the Swedish and Danish COVID19 ‘models’ are opposite extremes, whereas the Finnish ‘model’ may be viewed as falling somewhere in between. Anyone with just a minor understanding of the inter-relationships of the Nordic societies – in ‘ normal’ times - would understand that this is rather extraordinary. e epidemiological situation in Denmark and Finland has continuously been perceived as much be er than that in Sweden. In the spring of 2021, Sweden was found to have about 75% of all new infected persons from the Nordic countries thereby also belonging to the absolute top in the world. Although the death rate due to COVID-19 has been signi cantly higher in Sweden than in Denmark and Finland, some would claim that Sweden nevertheless has obtained certain advantages (such as a be er general state of mental health and the economy as a whole) which to some degree outweigh the disadvantage of a higher death rate.

e border-related measures implemented over the past year by the three countries have meant that businesses and citizens have been confronted with a wide array of diverging and rapidly changing borderrelated measures. ese could be grouped into at least the following four main categories: (1) partial or nearly full closure of borders; (2) bordercontrols; (3) requirements of tests and selfisolation on (re-)entry; and (4) (non-)travel recommendations to own citizens. Crucially, both own and other citizens’ free movement are restricted by such means.

e various border-related measures appear, at least on the surface, to be based on a rationale of preventing people from other countries from passing on

e three Nordic countries have acted rather unilaterally, potentially causing signi cant disruptions not only to the internal market but also Nordic cooperation

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individually. e content of these will be addressed in what follows, supplemented by an outline of the content of the replies of the three Member States.

2. e Administrative Le ers from the Commission and the Responses e administrative le ers from the Commission to the three Nordic Member States (dated 22 February 2021) list the acting Director-General, Salla Saastamoinen, as sender. Although the rst part in all of these le ers is completely identical, they do

e Swedish Border Saga In its le er, the Commission questions the Swedish Governmental Ordinance of 21 December 2020 which bans non-essential travel to Sweden from Denmark (and Norway). It stresses that bans on non-essential travel to and from a Member State restrict EU citizens’ fundamental right of free movement as provided under Article 21 TFEU. On the surface, the Commission, in essence, does not question the justi cation of the Swedish restrictions on public health grounds. However, it points at the fact that there are less restrictive measures available to a ain the objective of protecting health, such as quarantine and/or testing requirements. Still, one does not have to read between the lines to understand that the Commission does not nd the Swedish public health argument for introducing these discriminatory restrictions convincing, as it emphasises that the epidemiological situation in Denmark and Norway is signi cantly be er than in Sweden.

It is a focal point in all the three Commission le ers that the travel bans restrict free movement rights under Article 21 TFEU contain certain diﬀerences regarding the second part. In the rst part, the point of the departure is the Council Recommendation 2020/1475 of 13 October 2020 on a coordinated approach to the restriction of free movement in response to the COVID19 pandemic (as amended). It is stressed that it allows Member States the necessary exibility to take the measures deemed necessary taking into account the speci c epidemiological situation and national strategies, but also that it aims to preserve free movement within the EU, even if subject to restrictions such as testing and quarantine. In addition, it is a focal point in all the three le ers that the bans on non-essential travel restrict EU citizens’ fundamental right of free movement, as provided for in Article 21 TFEU. Such restrictions, the Commission states, may be justi ed based on public health grounds. However, any such measures must be nondiscriminatory and comply with the principle of proportionality. e Commission then continues and speci cally questions each of the three States’ bans

e Commission does not nd the Swedish public health argument for discriminatory restrictions convincing e Swedish reply of 8 March 2021 to the Commission argues that it is not for the Commission to assess the Swedish restrictions. e le er simply reiterates the ordinance’s objective: ‘ e reasons and principles of the Government’s decisions are solely

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are currently not permi ed to enter Denmark, and that this entry ban applies for an inde nite period. Again, it argues that bans on non-essential travel to and from a Member State restrict EU citizens’ fundamental right of free movement as provided for in Article 21 TFEU, and that although such restrictions may be justi ed based on public health grounds, they must nevertheless be nondiscriminatory and comply with the principle of proportionality. It stresses that it considers that less restrictive measures (such as quarantine or testing requirements) would be available to the authoriConcerning Denmark, ties to a ain the objective of protecting public health. On that bathe Commission consis, it invites the Danish authorisiders that there are ties to align the national measuless restrictive measures res with the provisions of the Council Recommendation, nothan an inde nite entry tably by phasing out the ban on non-essential travel and replacing ban on non-Danish it with more targeted measures.

founded on epidemiological circumstances and the need to combat the further spread of the SARSCov-2-virus.’ It emphasises that: ‘ e main focus of the Government’s decision is, and always has been, to combat the spread of the SARs-Cov-2-virus and ultimately save lives.’ e le er continues: ‘However, great consideration has also been given to upholding the principles of proportionality and free movement.’

Although Sweden at the time of bringing the measure into force, also justi ed the entry ban on not wanting a steady ow of people, in particular from Copenhagen, which was then more or less locked down, to enter Southern Sweden to live more freely, there was no mention thereof in the response to the Commission. Also, the Commission’s main argument that the measures were nationals and residents disproportionate was dismissed e Danish reply of 4 March without any further explanation, 2021 is – when considering the seas it was simply stated that riousness of the issues at stake - ex‘…forced quarantine cannot be traordinarily brief (just about a page) and appears – considered an alternative’, and that ‘… self-imposed so to speak - to admit absolutely nothing. First, the quarantine… is not a viable substitute for travel resneed for suﬃcient national exibility ensuring the trictions for various reasons’. Also noteworthy is possibility to act when serious situations arise, for that the requirements as to testing in connection example in case of variants of concern spreading, is with the crossing of borders as a less disruptive meaunderlined. Also, it is mentioned that this was also sure was not considered in the Swedish reply. the Danish position during the negotiations of the Council Recommendation in question. Furthere Danish Border Saga more, it is argued that it is not intended that the Council Recommendation rules out the possibility From the Commission’s le er to Denmark, it may of refusing entry of persons travelling from other be understood that it nds it problematic that EU ciMember States and that it thus acknowledges that tizens - who are neither Danish nationals, residents such measures can be proportionate. in Denmark or travelling for essential functions or needs (persons travelling for a ‘worthy purpose’) -

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Issue was taken by the Commission with Finland's general entry ban and restrictions on cross-border workers, and it has replied by pointing out its particular geographic and trade features

vellers are exempted from the ban. e Commission explains in that regard that restrictions to travel in cross-border areas are particularly disruptive for individuals who cross them daily or frequently for essential purposes other than work, such as for family reasons, medical care or caregiving, and that such persons should not be required to undergo quarantine, when crossing borders for such essential purpose. e Commission emphasises that the epidemiological situation in parts of the EU/EEA is comparable to the situation in Finland. erefore, it invites the Finnish authorities to align the measures taken with the Council Recommendation, notably by phasing out the ban on non-essential travel and replacing it with more targeted measures such as quarantine and testing, and by extending the exemptions for cross-border commuters.

e Finnish Border Saga In the Commission’s le er to Finland, several points are made in relation to the measures introduced by the country. e rst of these concerns the general entry ban on non-essential travel to Finland’s territory, whereby EU citizens, who are not Finnish nationals, residents in Finland or persons travelling for essential reasons, are not permi ed to enter Finland until 18 March 2021. According to the Commission, this entry ban: ‘… takes into account epidemiological criteria similar to (but not fully matching) those used in the Council Recommendation. is means that only persons travelling from EU/EEA Member States with a 14-day cumulative COVID-19 case noti cation rate of no more than 25… are permi ed entry. Currently, only Iceland fulls this requirement’.

Finland’s reply of 4 March 2021 fairly thoroughly describes the pursued strategy. Initially, the reply underlines that the Finnish decisions regarding COVID-19 related measures are in accordance with the Finnish Constitution, international human

e second point concerns a recent tightening of the restrictions on cross-border commuters. More precisely, only cross-border workers exercising critical functions and a limited list of other essential tra-

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rights and EU fundamental rights obligations, and that they impose only restrictions which are necessary, justi ed, proportionate and time limited. e essence of the Finnish reply relates to the proportionality of the chosen measures, bearing in mind two facts in particular: rstly, the measures diﬀer for a person arriving by sea or land, and secondly, whether there is a lack of intensive care places in the local hospitals. us, the Finnish reply advocates the idea that local circumstances, which diﬀer a lot from north to south in Finland, should be taken into consideration.

Summing Up e tone behind the arguments of the Commission could perhaps have been stronger, and a larger variety of national restrictions could have been included for assessment. us, it is clear that the Commission is fairly selective and minimalistic as to which measures it criticises. Among the four main categories identi ed above, it is only the rst category that the Commission has put forward, although all four categories potentially may be harmful to free movement. Also, the Commission is very general as to the exact designs of testing and quarantine requirements in order to be considered as proportional, which is important as such requirements in themselves may constitute restrictions.

To perhaps be er understand the Finnish strategy, one may consider the Finnish geographical position. Importantly, Finland in one way resembles an island in its international trade to a very large degree, as about 80-90 % of its imports and exports of goods are transported by ferries. is fact is also of importance to the situation of the crossborder commuters. e Finnish situation is perceived as particularly difficult as the infection rate has been much more severe in the neighbouring countries Estonia and Sweden than in Finland. Yet Finland is dependent on importation via the seas or air, which as a side-effect increases the number of cross-border commuters in the harbours or airports. is may be problematic since social distancing in ferries or airplanes is much more difficult to uphold than crossing the border in a private car or truck. Also, there is a ‘bo le neck-problem’ due to a relatively small number of intensive care places in the hospitals, most of them situated in the capital area (Helsinki district) rather than in areas by the land-borders.

e Commission is fairly selective and minimalistic as to which measures it criticises

Signi cantly, the replies of Sweden and Denmark give the impression that these countries simply dismiss the criticism without any a empts to give qualied reasons as to why. e reply by Finland, in contrast, is much more detailed and balanced. Under all circumstances, none of the three Member States – as ‘naughty school children’ - accepted the criticism of the Commission, at all. However, as Sweden was ‘only’ criticised for its ban on non-essential travel to Sweden from Denmark (and Norway), and since it has not prolonged the measure a er 31 March 2021, there is currently no longer a problem in that regard in Sweden, whereas the Danish and Finnish restrictions still apply. At the time of writing, to our knowledge the Commission has not taken any further steps in a potential infringement procedure towards

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Recommendation 2021/119 of 1 February 2021). Although a ributed huge importance by the Commission, it must be stressed from the outset, that according to Article 288 TFEU, recommendations are not legally binding instruments. Clearly, they may rather be classi ed as ‘so law’ , but may nevertheless, as it has become well-known, imply some impact in certain situations.

Denmark and Finland for still upholding the criticised measures, or against Sweden concerning the withdrawn ordinance or other measures.

3. e EU Legal Framework and Points of Concern Free movement has, beyond all doubt, been heavily challenged during the current COVID-19 crisis, as the above three ‘case studies’ have also revealed. us, the intention is now to let these serve as stepping stones, from which to bring forward certain points of concern, which are already currently possible to identify. erefore, in what follows, the essence of the most important sources of EU law regarding the ma ers at stake will be in focus, beginning with the EU-coordinated approach, which constitutes a completely new, and currently also very signi cant, addition to the free movement landscape.

Generally, the coordinated approach may be understood as aiming to seek a balance between two crucial elements, namely between the preservation of free movement and the general health. e original Council Recommendation 2020/1475 has the aim of ensuring increased coordination among Member States considering the adoption of measures restricting free movement on grounds of public health. is includes, according to Point 13, joint eﬀorts on the following three key points: (1) the application of common criteria and thresholds, when deciding whether to introduce restrictions to free movement; (2) a mapping of the risk of COVID-19 transmission based on an agreed colour code; and (3) a coordinated approach as to the measures, if any, which may appropriately be applied to persons moving between areas, depending on the level of risk of transmission in those areas.

e EU-Coordinated Approach During the pandemic, Member States have - in an a empt to limit the spread of the virus, adopted various border-related measures - which have had an impact on EU citizens’ right to move and reside freely. However, they have almost to an extreme degree behaved unilaterally in that regard, which has already been illustrated by the three ‘case studies’ above, where the three Member States in question also took heterogenous approaches despite their common roots in the Nordic cooperation. erefore, it is not at all that surprising that the EU has felt a need to come up with a coordinated approach as materialised in the above mentioned Council Recommendation 2020/1475, enacted about half a year a er the outbreak of the pandemic. It has subsequently – at the beginning of 2021 - been amended (Council

In Point 9, reference is made to Article 168(7) TFEU, where it is stated that the de nition of national health policies, including the organisation and delivery of health services and medical care, is the

e EU coordinated approach seeks a balance between free movement and protection of health

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pressed that Member States should strengthen coordination eﬀorts on the length of quarantine/selfisolation and substitution possibilities. Wherever possible and in accordance with strategies decided by Member States, the development of testing should be encouraged. In addition, it is recommended, for example, that Member States mutually recognise the results of tests for COVID-19 infection carried out in other Member States by certi ed health bodies.

responsibility of Member States and may therefore vary from one Member State to another. Nevertheless, while Member States are competent to decide on the most appropriate measures to safeguard public health, including for instance quarantine or testing requirements, it is in the Recommendation held to be appropriate to ensure the coordination of such measures, with a view to safeguarding the exercise of the right of free movement and comba ing a serious cross-border threat to health such as COVID-19. Unsurprisingly, it is also emphasised in Point 10 that, when adopting and applying restrictions to free movement, Member States should respect principles of EU law, in particular proportionality and non-discrimination. According to Point 17, restrictions on free movement should only be considered when Member States have suﬃcient evidence to justify such restrictions in terms of their bene t for public health and they have reasonable grounds to believe that the restrictions would be eﬀective. ese considerations are, in more precise terms, expressed in the rst general principle stated in the Recommendation.

e reasoning behind the adoption of Council Recommendation 2021/119 amending Recommendation 2020/1475 appears, rst and foremost, to be the, at the time, recent emergence of new variants of the virus, which was at the time seen as a serious cause for concern. erefore, in order to slow down the importation and spread of the new variants of concern, non-essential travel should be avoided until the epidemiological situation has considerably improved. Yet, concerns for the need of borders to stay open to ensure the functioning of the single market, including the ow of essential goods and services, are expressed.

As to ‘the common framework as regards possible measures for travellers coming from higher-risk areas’, it is stated in Point 17 that Member States should in principle not refuse the entry of persons travelling from other Member States. Also, Member States that consider it necessary to introduce restrictions to free movement could require persons travelling from an area classi ed other than ‘green’ to (a) undergo quarantine/self-isolation; and/or (b) undergo a test for COVID-19 infection a er arrival. Furthermore, Member States may oﬀer travellers the option to substitute the test mentioned in le er (b) by a test for COVID-19 infection carried out prior to arrival. In that context, it is in addition ex-

Altogether, although navigating in a politically delicate eld characterised by a not completely clear distribution of competences, it seems safe to assume that the EU-Coordinated Approach does not completely give up on the fundamental principles of internal market law and EU Citizenship. us, it is continuously emphasised that, when adopting and applying restrictions to free movement, Member States should respect principles of EU law, in particular proportionality and non-discrimination, and that as much coordination as needed is being called for.

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neral scope and to an evolving wide understanding of restrictions imposed on Member States, including the limitations on the use by them of justi cations. Generally speaking, the EU Courts tend to interpret EU internal market law in a way that treats limitations on market access in a wide sense as restrictions; and thus - unless justi ed - contrary to EU law. Justi cations of relevance to the present context could be public policy, public security or public health. As part of the assessment of whether a given restriction is justi ed, the principle of proportionality is required to be ful lled. Also, the precautionary principle may have a role to play in the present context.

Internal Market Law Principles, EU Citizenship and the EU Borders Code Besides the EU-Coordinated Approach, it is of interest to take a glance at the two dominant and complementary legal regimes on free movement of persons. e rst of these is the oldest one, namely free movement of persons, as embedded in the internal market law principles and EU Citizenship. e second legal regime of interest concerns the EU Borders Code. In relation to the rst legal regime, it may be recalled that free movement provisions normally refer primarily to Articles 18, 34, 45, 49, 56, and 63 TFEU. In addition, the provisions on EU Citizenship, introduced by the Treaty of Maastricht, may now be seen as interlinked with this framework (in particular Articles 20 and 21 TFEU). One of the most remarkable developments in EU law is the expansive interpretation that has been applied to these diﬀerent provisions, not least with regard to their ge-

According to long-standing case law of the EU Courts, the health justi cation implies that the Member States have considerable room for manoeuvre in protecting the health of their citizens within the framework of the internal market. Rather

It is of interest to consider the complementary legal regimes on free movement of persons and the EU Borders Code

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It is not completely clear how the precautionary principle more precisely would t into this otherwise well-established legal framework of free movement. us, it could be considered whether it may for example be understood as an additional – and independent - interest at the same level as the health interest, or whether it rather serves as a supplementary test to either that interest or to the principle of proportionality. When applied, it in itself presumes that the principle of proportionality is taken into consideration. is is supported by the Commission, which more generally has pointed out that reliance on the precautionary principle is no excuse for derogating from the general principles of risk management, which include proportionality, nondiscrimination, consistency, examination of the bene ts and costs of action or lack of action, and examination of scienti c developments (COM(2000)1, paragraph 6.3.). erefore, it is diﬃcult to assess exactly how the principle may serve as a suﬃciently strong argument for the Member States in defence of the many border-related restrictions, in which context it, at times, might have been pulled out like a rabbit from a magician’s hat.

uniquely, when compared to situations before the pandemic, currently all Member States are at the very same time likely to be claiming that the various border-related measures, which they have been enacting, are justi ed due to health reasons. Already in the classic de Peijper (Case 104-75) from 1976, the Court of Justice set the stage in that regard. It may, from there, be understood that the interest of public health ranks rst amongst the interests mentioned in Article 36 TFEU. It may, furthermore, be understood that despite the importance of the public health exception, Member States do not nevertheless have a ‘carte blanche’ in shielding their national market with a view to protecting the health of its own population, as the principle of proportionality must also be ful lled. Simply put, this entails that measures must be suitable for the achievement of the desired aim and that this could not have been reached by a less restrictive measure. Although not previously having played a central role within the universe of internal market law, the precautionary principle has potential to be of huge importance here as well. It is generally considered to have its origin in EU environmental law, in which context Article 192(2) TFEU plays a particularly signicant role. According to the Communication from the Commission on the precautionary principle (COM(2000)1, paragraph 1), whether or not to invoke the precautionary principle is a decision exercised, where scienti c information is insuﬃcient, inconclusive, or uncertain, and where there are indications that the possible eﬀects on the environment, or human, animal or plant health, may be potentially dangerous and inconsistent with the chosen level of protection. It may be considered to be universal in character and thereby applicable in various other legal contexts, presumably also in the universe of free movement. It may still today be considered to be vague in meaning.

It is, importantly, stated in Article 21(1) TFEU that every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them eﬀect. e EU Citizens’ Directive provides the details of the law in this regard. e rights of EU Citizens according to the Directive can only be interfered with on the basis of public policy, public security or public health. In the context of the COVID-19 pandemic, Article 29(1) of that Directive in particular is noteworthy as it deals with restrictions on the right of entry and residence for the sake of public health. It is a provision, which for obvious reasons has not until now been of much practical

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of the lawfulness of the border-related measures in the context of the two diﬀerent legal regimes is likely to be the justi cation part, including in particular the principle of proportionality and probably also the precautionary principle.

and theoretical interest. Accordingly, uncertainty as to its more precise interpretation may be considered to prevail. As pointed out, the second important EU legal amework on movement of persons is the Schengen regime having the EU Borders Code (Regulation 2016/339 of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders) as its central anchor. Among other things, it implies that there are no border controls on persons of any nationality moving within the Schengen participating states. All three Nordic Member States participate, although Denmark participates under a special arrangement. It provides that border controls may be reintroduced only under exceptional circumstances. Chapter II includes the general framework for the temporary reintroduction of border control at internal borders. According to Article 25 such reintroduction can only be justi ed where there is a serious threat to public policy or internal security. e principle of proportionality must, though, be ful lled. Crucially, public health is not mentioned here. However, it is likely that it may be assumed that a serious threat to human health caused by a pandemic disease may aﬀect a Member State to such an extreme degree that public policy and internal security would also be aﬀected. Nevertheless, the point of departure is that the EU Citizens’ Directive permits Member States to refuse entry to EU nationals on the basis of public health risks, whereas the EU Borders Code does not. Also, Article 28, which provides for a speci c procedure in cases requiring immediate action, may be of relevance to the present context. Generally, the maximum duration of controls and their extension is limited.

Points of Concern Analysing the various issues at stake here presupposes, to some degree, that it is possible to study a constantly moving and not fully visible target. In particular, there is still a high degree of scienti c uncertainty associated with COVID-19, so that a full account of the precise impact of the pandemic and its ways of transmission are not yet completely available. Despite that, on a preliminary footing, at least the following considerations may be put forward. During the rst year of the pandemic, each of the three Nordic Member States in many respects have pursued their own border-related strategies. ese have implied that they, in diﬀerent respects, have deviated from the essence of the EU-Coordinated Approach and the fundamental principles of EU law. Nevertheless, all three countries, but especially Sweden and Denmark, were extremely dismissive of the criticism from the Commission in its administrative le ers to them. ese developments already appear to be rather remarkable and may give rise to concern as to the (real) motivation and the eventual consequences. Although recommendations are not legally binding instruments, the degree to which these three Member States seem to have chosen to leave the common approach (and the fundamental principles it relies upon) somehow ineﬀective is indeed rather surprising. Also, one might note that the Nordic close cooperation and mutual trust seemingly has surprisingly been very much set aside.

Against that background, it should have become clear why the centre of a ention on an assessment

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mission must weigh and balance between the free e identi ed four main categories of bordermovement of persons and the protection of health related measures constitute, at times, interand life of humans in an extremely rare and difficult dependent measures and are harmful to free movesituation – it may give cause to wonder why the ment, although with different degrees of impact. Commission was so cautious in its criticism, and e focus of the Commission in its administrative why it – a er the receipt of the rather dismissive rele ers was only on measures belonging to the rst plies by the three Nordic Member States – to our category. However, such kinds of measures are not knowledge has still not reacted further. possible without the second. e third kind is acknowledged by the Commission as a more proporGenerally, it is not surprising tional means than the rst, - considering that there has and the fourth category is never been a pandemic like o en linked to the third. Given the fact that the CommisWhy was the Commission the present one in the lifetime of the EU - that there are sion nds that for example tesso cautious in its criticism, no clear precedents as to the ting may be a more proporavailable room for manoeuvtional means than for examand why has it not reacted re for the Member States to liple travel bans, one may wonmit free movement in the nader why it did not provide mofurther? me of COVID-19. e funre details in that regard. us, damental EU law principles it could be claimed that the will now have to stand the proportionality of requirestress-test of the pandemic. ments of tests is dependent In other words, the pandemic has not only strongly on the available test-set ups, such as accessibility, cain uenced our lives, our thinking, our laws, and so pacity, price, applicable time frame, mutual recognion , over the past year, but also the perceptions of tion, and so on . Similarly, there might be limitations fundamental EU law. What was never imagined as to how requirements of quarantines are to be decould be acceptable measures by Member States hasigned to be considered as sufficiently proportional, ve, nevertheless, seemingly largely been tolerated, including considerations as to the meaningful and one may wonder whether the traditional unlength, control remedies (such as for instance the poderstanding of the health justi cation and the prinlice checking up on people actually staying in their ciple of proportionality might have to be reconsideprivate homes and the kinds of sanctions connected red, and the precautionary principle to be upgraded therewith), and so on. Furthermore, at the present in importance in this context. In addition, the level of development, one may wonder whether, in la er’s role in relation to the former is evidently particular, the prevailing border closures and border worthwhile to consider. control measures are genuinely proportionate, effective and lawful instruments to combat the pandemic. In that regard, it may be taken into consideration that the WHO stated early on into the pandemic that closures of borders do more harm than good. Under all circumstances – although the Com-

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seriousness of the situation and of what could appear as an untamed, wild ock of horses, no one has really felt tempted to ride on. Along with that, the pandemic has also served as a kind of stress-test for the foundational principles of free movement, which has revealed a fragility of the theoretical foundation of the EU free movement principles and of the willingness to seek them upheld.

4. Conclusions: Learning to Fly Again Together With the outbreak of the COVID-19 pandemic, disorder arose. On an unprecedented scale, Member States drastically applied diﬀerent responses with respect to travel bans and limitations, border closures and controls, requirements of testing and quarantines, and so on; actions claimed to have been taken to possibly limit the spread of the virus, but presumably also implemented due to their symbolic nature. e three Nordic Member States examined in this Long Read clearly pursued the same kind of pa ern of unilateral behaviour, introducing borderrelated measures and, in fact, seemingly o en to a much stronger degree compared with most other Member States.

e Commission, by having sent the above mentioned administrative le ers, has demonstrated some action, however there could, in fact, still be a need for much more from that side considering it is the primordial guardian of respect for EU law. Under all circumstances, there is a profound need for coordination and cooperation, intentions already expressed in Council Recommendation 2021/119 amending Recommendation 2020/1475, which indeed constitutes a good point of departure, if only respected. e price of diversity otherwise risks becoming too high. ere is thus an urgent need to encourage the broken wings in Europe to y and live freely again, at least a bit more, in an atmosphere of a genuine spirit of cooperation and mutual – but de nitely not blind – trust, and of course, at the same time protecting the health of Europeans as long as this is reasonably done.

Such behaviour, however, has at the same time been taken at the cost of severely disrupting free movement. us, the viability of the internal market is currently strongly being challenged. Indeed, many of the steps taken by the Member States have been contrary to what EU law has traditionally been conceived of as allowing, and signi cantly, the Commission has appeared as much more tolerant than what would have been expected, perhaps paci ed by the

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News Highlights Week 17 to 21 May 2021

General Court to rule on Swissgrid’s exclusion from TERRE

Court of Justice to hear case on burden of proof under Regulation 1/2003

Monday 17 May

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In Swissgrid v Commission (T-127/21), the General Court will hear an action for annulment brought by Switzerland’s national grid company concerning its exclusion by the European Commission from participating in the European platforms for the exchange of standard product for balancing energy, including the Trans European Replacement Reserves Exchange (TERRE).

In ZA, AZ, BX, CV, DU and ET v Repsol (C-25/21), the Court of Justice will hear a request for a preliminary ruling concerning the applicability of burden of proof requirements under Article 2 of Regulation 1/2003 concerning facts as set out in the nal decisions of national competition authorities (NCAs) applying Article 101 TFEU.

EFTA Surveillance Authority: Vacancy for temporary position for Deputy Director for Internal Market Aﬀairs

ECB to monitor compliance with securitisation requirements by banks

Monday 17 May

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Oﬃcial publication was made of a vacancy notice for the position of Deputy Director at the Internal Aﬀairs Market Directorate of the EFTA Surveillance Authority (ESA) in Brussels.

Action for annulment before General Court regarding exemption of corporate tax for Italian ports classi ed as State aid Monday 17 May

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e General Court will hear an action for annulment in Autorità di sistema portuale del Mare Ligure occidentale and Others v Commission (T-166/21) concerning the classi cation as State aid of an exemption from corporate income tax established for port authorities in Italy.

Monday 17 May

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e European Central Bank announced its intention to ensure that supervised banks comply with requirements related to risk retention, transparency and resecuritisation, under Articles 6 to 8 of the Securitisation Regulation.

ESAs publish report on implementation and functioning of the Securitisation Regulation Monday 17 May

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Oﬃcial publication was made of a report by the Joint Commi ee of the European Supervisory Authorities analysing the EU Securitisation Regulation, noting initial inconsistencies and challenges in implementation, possible solutions, recommendations and key messages.

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EU Sanctions for Cybera acks Extended

Court of Justice publishes 2020 Annual Report

Tuesday 18 May

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e Council of the European Union announced that it will be prolonging the legal framework for sanctions concerning cybera acks threatening the EU for another year, until 18 May 2022.

e Court of Justice of the EU published its 2020 Annual Report, which includes a selection of highlighted judgments delivered by both the Court of Justice and General Court.

Commission’s conditional authorisation of AstraZeneca vaccine against COVID-19 challenged before the General Court

Court of Justice rules on several rule of law cases concerning Romania and the Cooperation and Veri cation Mechanism

Tuesday 18 May

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Oﬃcial publication has been made of an action for annulment (T-165/21) brought by several applicants against Commission Implementing Decision (C(2021) 698 nal) of 29 January 2021 granting a conditional marketing authorisation for the COVID-19 AstraZeneca Vaccine.

e Court of Justice of the EU, si ing in Grand Chamber formation, delivered judgment in several cases concerning the legal nature and eﬀects of the ‘Mechanism for Cooperation and Veri cation’ (CVM) established in Decision 2006/928 in relation to several Romanian legislative amendments to the laws governing Romania’s judicial system.

ECtHR: conviction of media publisher for articles and online polls during election campaign period disproportionately restricts freedom of expression

Commission adopts Communication with new business tax agenda

Tuesday 18 May

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e European Court of Human Rights ruled in OOO Informatsionnoye Agentstvo Tambov-Inform v. Russia (application no. 43351/12) that the freedom of expression in Article 10 ECHR was breached when Russian courts convicted the applicant for the publication of opinion articles and of an online poll during an election campaign.

Tuesday 18 May

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e European Commission adopted a Communication on ‘business taxation for the 21st Century’, se ing out a policy agenda for new rules on business taxation that seeks to promote a ‘robust, eﬃcient, fair business tax system’ in the EU.

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Provisional agreement on Directive regulating migration for highly quali ed workers Tuesday 18 May

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General Court to rule on Commission’s refusal to grant access to documents related to the purchase and delivery of COVID-19 vaccines

e Portuguese Presidency of the Council of the EU reached a provisional agreement with the European Parliament on a dra Directive with new rules and conditions for the entry and residence of highly skilled non-EU nationals, rst proposed in 2016 to a ract workers to the EU.

Tuesday 18 May

Commission publishes Communication on Sustainable Blue Economy

Eurojust publishes report on impact of COVID-19 on Judicial Cooperation in Criminal Ma ers

Tuesday 18 May

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Oﬃcial publication was made of two actions for annulment (T-151/21 and T-154/21) brought before the General Court against two Commission decisions requesting access to documents related to the purchase of COVID-19 vaccines.

e European Commission published a Communication ‘on a new approach for a sustainable blue economy in the EU’, outlining a new sustainability approach, in line with the European Green Deal, for the industries and sectors related to oceans, seas and coasts.

Tuesday 18 May

Appointments of Judges and Advocates General to the Court of Justice: Decision published

Commission publishes evaluation of EU State aid rules for agriculture, forestry and rural areas

Wednesday 19 May

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e Representatives of the Governments of the Member States recently appointed two Judges and two Advocates General to the Court of Justice, in Decision (2021/798) that is now published.

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Eurojust announced the publication of its report ‘ e Impact of COVID-19 on Judicial Cooperation in Criminal Ma ers – Analysis of Eurojust’s Casework’.

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e European Commission published a Staﬀ Working Document summarising the results of an evaluation of the State aid rules for the agriculture and forestry sectors and for rural areas. e Commission is currently conducting a review of them.

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Victory for Lu hansa: General Court annuls Commission’s State aid Decision concerning Hahn Airport based on failure to properly assess ‘doubts’ as to compatibility of aid and open a formal investigation procedure Wednesday 19 May

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e General Court ruled partially in favour of German airline Deutsche Lu hansa in Deutsche Lu hansa v Commission (T218/18), annulling the Commission’s State Aid Decision concerning operating aid granted by Germany to Hahn Airport (Case SA.47969).

General Court dismisses action against Commission concerning anti-dumping duties on Chinese iron articles Wednesday 19 May

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In China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission (C254/18), the General Court dismissed an action in relation to a anti-dumping duty and provisional duty imposed on imports of certain cast iron articles originating in China, and terminated the investigation on those originating in India.

Court of Justice to rule on prohibition of intra-EU taxation in case concerning environmental depreciation reduction in second-hand vehicles

Request for a preliminary ruling on the interpretation of Trademark Regulation in cases of use of trademarks signs in online advertisements

Wednesday 19 May

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e Portuguese Constitutional Court (Tribunal Constitucional) referred a request for a preliminary ruling (C-136/21) concerning the interpretation of Articles 110 and 191 TFEU in a case concerning the tax levied on second-hand vehicles and the reductions applied for value depreciation that take into account an environmental component.

In Christian Louboutin v Amazon Europe Core Sàrl, Amazon EU Sàrl, Amazon Services Europe Sàrl (C-148/21), the Court of Justice will give a preliminary ruling on the interpretation of Article 9(2) of the Trademark Regulation (2017/1001) in cases of use of signs with trademarks in online advertisements.

General Court upholds Ryanair’s actions for annulment of Commission State aid decisions in respect of TAP and KLM, but dismisses action concerning Spain

Recognition of parenthood between Member States: Public consultation

Wednesday 19 May

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e General Court delivered three judgments concerning actions for annulment brought by Ryanair against the European Commission’s decisions to approve State aid schemes for the airline sector during the COVID-19 pandemic.

ursday 20 May

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e Commission launched a public consultation ahead of an initiative on the recognition of parenthood between Member States, in order to ensure children’s rights are protected in cross-border situations.

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ECtHR: lockdown ordered by Romanian Government in response to COVID-19 pandemic does not amount to ‘house arrest’ under Article 5(1) ECHR ursday 20 May

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Court of Justice: application for refugee status cannot be deemed inadmissible as ‘subsequent application’ when previous application was rejected by Norway ursday 20 May

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e European Court of Human Rights unanimously held the application in Terheş v. Romania (application no. 49933/20) to be inadmissible: a complaint against the lockdown ordered by the Romanian Government from March to May 2020 to tackle the COVID-19 pandemic.

In C-8/20, L.R. (Demande d’asile rejetée par la Norvège), the Court of Justice ruled that under Article 33(2)(d) of the Procedures Directive, read in conjunction with Article 2(q), an international protection application cannot be inadmissible as a ‘subsequent application’ because a previous application for asylum made by the same person was rejected by Norway.

AG Bobek advises to dismiss as inadmissible questions for a preliminary ruling regarding the rule of law in Poland

New rules of procedure of EFTA Court and EFTA Supervisory authority now published

ursday 20 May

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ursday 20 May

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Advocate General Bobek delivered his Opinion in Grand Chamber case Prokuratura Rejonowa ( Joined cases C748/19, C-749/19, C-750/19, C-751/19, C-752/19, C753/19, and C-754/19), concerning several requests for a preliminary ruling by the 10th Criminal Appeal Section of the Warsaw Regional Court, in the context of seven criminal cases pending before that court.

e new rules of procedure of the EFTA Court and of the amended rules of procedure of the EFTA Supervisory Authority were published.

VAT Directive does not preclude joint and several liability for default interest, Court of Justice rules

Commission publishes new methodology to be er assess trade impacts on nature

ursday 20 May

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e Court of Justice ruled in ALTI (C-4/20) that Article 205 of VAT Directive 2006/112 does not preclude the inclusion of default interest, owed by the liable VAT person for late payment, to the secondary liability of a third party.

ursday 20 May

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e European Commission published a new methodology it will use to assess the impacts of trade liberalisation on biodiversity and ecosystems.

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Court of Justice: national rules on aid schemes previously authorised by the Commission are ‘new aid’ for the purposes of Article 108(3) TFEU unless they are covered by block or de minimis exemption rules ursday 20 May

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e Court of Justice ruled in Azienda Sanitaria Provinciale di Catania (C-128/19) on what constitutes ‘new aid’ to be notied to the Commission under State aid rules before being implemented.

Council updates recommendation on restrictions to travel from third countries ursday 20 May

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e Council of the EU approved an amending recommendation concerning the temporary restriction on non-essential travel into the EU, introducing certain waivers for vaccinated persons and easing the criteria to li restrictions for third countries.

Council Decision supporting the launch of WHO process for establishment of Pandemic Treaty Friday 21 May

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e Council of the EU adopted a decision to support the launch of negotiations for an international treaty on the ght against pandemics, following the agreement of EU leaders at the European Council of 25 February 2021 to enhance global multilateral cooperation to address current and future health threats.

Commission nes investment banks for participating in European Governments Bonds trading cartels ursday 20 May

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e European Commission ned Bank of America, Natixis, Nomura, RBS (NatWest), UBS, UniCredit and WestLB (Portigon) 371 million euros for their participation in a cartel in the primary and secondary markets for European Government Bonds in breach of Article 101 TFEU.

AG Campos Sánchez-Bordona: time limits to lodge liquidator’s insolvencyclaim governed by law of State in which secondary proceedings have been opened Friday 21 May

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Advocate General Campos Sánchez-Bordona advised the Court of Justice in ALPINE BAU GmbH (C-25/20) on the interpretation of Article 32(2) of Insolvency Regulation 1346/2000 on how to determine jurisdiction, in a case concerning time limits in insolvency proceedings.

AG Saugmandsgaard Øe: spoiled products not t for human consumption may be reclassi ed under lower category Friday 21 May

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Advocate General Saugmandsgaard Øe’s Opinion in Toropet (C-836/19) advises the Court on the interpretation of Regulation 1069/2009 on health rules as regards animal byproducts and derived products not intended for human consumption, including a lower category that don’t respond to the requirements of the category in which they were originally introduced.

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AG Richard de la Tour’s Opinion on national authorities’ discretion in the area of mutual recognition of nancial penalties Friday 21 May

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Advocate General (AG) Richard de la Tour issued his Opinion in LU (Recouvrement d’amendes de circulation routière) (C-136/20), a preliminary reference case concerning the int e r p r e t a t i o n o f Co u n c i l Fr a m e w o r k D e c i s i o n 2005/214/JHA on the application of the principle of mutual recognition to nancial penalties.

EU Digital COVID Certi cate to facilitate intra-EU travel: Provisional Agreement on Regulation Friday 21 May

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e European Parliament and Council of the European Union reached a provisional agreement on a Regulation that would mean the issuing of a free ‘EU Digital COVID Certi cate’ aimed at securing ‘safe free movement inside the EU during the COVID-19 pandemic’.

Insights, Analyses & Op-Eds EU Blocking Statute ready for stresstest at the Court of Justice in Bank Melli

Joint and Several Liability for unpaid VAT may cover Default Interest

by Trajan Shipley

by Darya Budova

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Insight into Advocate General Hogan’s Opinion in Grand Chamber case Bank Melli (C-124/20), a highly relevant case in the eld of extraterritorial US sanctions and the scope of the obligations imposed upon EU operators under the EU Blocking Statute in order not to comply with them.

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Analysis of the Court of Justice's ruling in the case ALTI (C4/20), dealing with the scope of joint and several liability under the VAT Directive, as there is an increasing practice in the Member States to seek payment of VAT from persons who knew or should have known that the tax would go unpaid.

‘Place where the harmful event occurred’ and nancial damage connected to breaches of obligations to disclose information by an issuer of securities: no jurisdiction if the defendant was not subject to such obligations in the State where the investment account was located? by Enrique Vallinas

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Op-Ed on the Court of Justice’s case in Vereniging van Eﬀectenbezi ers v BP (C-709/19), in which it interprets how to determine the place where the harm occurred in a case of purely nancial damage, and analysis of the Court’s reasoning which the author nds is unconvincing and which does not clarify Article 7(2) of the Brussels I-bis Regulation 1215/2012.

Nº59 · MAY, 21 2021

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Library - Book Review MICHAL BOBEK AND JEREMIAS ADAMS-P

By Yann Lorans

SSL (EDS.)

e EU Charter of Fundamental Rights in the Member States Review of a book that sheds light on the resonance of the new catalogue of EU Charter rights within national se ings through a ‘high-level and methodologically thorough piece of work’, and which should ‘serve as a beacon of realism for any researcher who might be over enthusiastic about the Charter and its contributions to the European constitutional space’.

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