EU Court of Justice on Travel Bans and Border Controls: Deference, Securitisation and a Precautionary Approach to Fundamental Rights Limitations

Abstract

This contribution responds to the Court of Justice of the European Union’s (CJEU’s) recent judgment in Nordic Info BV v Belgian State (C-128/22), in which the Court’s Grand Chamber for the first time interpreted the legality of travel restrictions justified on public health grounds during the Covid-19 pandemic. Unsurprisingly, in a preliminary ruling deferential to national powers and to the national court’s decision, the CJEU upheld the compatibility of the Belgian pandemic measures with EU laws while interpreting the conditions of the EU Residence Directive and the Schengen Borders Code. Less predictably, the CJEU avoided a more restrictive judicial review and took an approach based on (i) an atypical laxity of review in many respects linked to securitisation of health, free movement, and border management; (ii) an unexpected attitude to scientific evidence; and (iii) a precautionary vision of proportionality and human rights protection. This comment argues that the result of this approach is likely to mean more discretion for Member States to decide on the measures either limiting or derogating from EU free movement based on the precautionary principle and/or public policy/security exception; more difficulty in seeking accountability for decisions on cross-border health measures and their socio-economic consequences, meaning that European societies bear the burden and costs of the pandemic; and, finally, less of a role to play for fundamental rights in public health in the EU.