Article 7 - Respect for private and family life
Article 16 - Freedom to conduct a business
Article 45 - Freedom of movement and of residence
Article 51 - Field of application
Key facts of the case:
Reference for a preliminary ruling – Directive 2004/38/EC – Articles 27 and 29 – Measures restricting the free movement of Union citizens on public health grounds – Measures of general application – National legislation providing for a ban on leaving the national territory in order to engage in non-essential travel to Member States classified as high-risk zones in the context of the COVID-19 pandemic and an obligation for every traveller entering the national territory from one of those Member States to undergo screening tests and to observe quarantine – Schengen Borders Code – Article 23 – Exercise of police powers in the field of public health – Equivalence with the exercise of border checks – Article 25 – Possibility of reintroducing border controls at internal borders in the context of the COVID-19 pandemic – Controls carried out in a Member State as part of measures prohibiting the crossing of borders for the purpose of engaging in non-essential travel from or to States in the Schengen area classified as high-risk zones in the context of the COVID-19 pandemic.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
1. Articles 27 and 29 of 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, read in conjunction with Articles 4 and 5 thereof,
must be interpreted as not precluding legislation of general application of a Member State which, on public health grounds connected with combating the COVID-19 pandemic, (i) prohibits Union citizens and their family members, whatever their nationality, from engaging in non-essential travel from that Member State to other Member States classified by it as high-risk zones on the basis of the restrictive health measures or the epidemiological situation in those other Member States, and (ii) requires Union citizens who are not nationals of that Member State to undergo screening tests and to observe quarantine when entering the territory of that Member State from one of those other Member States, provided that that national legislation complies with all the conditions and safeguards referred to in Articles 30 to 32 of that directive, the fundamental rights and principles enshrined in the Charter of Fundamental Rights of the European Union, in particular the principle of the prohibition of discrimination and the principle of proportionality.
2. Articles 22, 23 and 25 of 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), as amended by Regulation (EU) 2017/2225 of the European Parliament and of the Council of 30 November 2017,
must be interpreted as not precluding legislation of a Member State which, on public health grounds connected with combating the COVID-19 pandemic, prohibits, under the control of the competent authorities and on pain of a penalty, the crossing of the internal borders of that Member State in order to engage in non-essential travel from or to States in the Schengen area classified as high-risk zones, provided that those control measures fall within the exercise of police powers which is not to have an effect equivalent to border checks, within the meaning of Article 23(a) of that code, or that, where those measures constitute border controls at internal borders, that Member State has complied with the conditions referred to in Articles 25 to 28 of that code for the temporary reintroduction of such controls, given that the threat posed by such a pandemic corresponds to a serious threat to public policy or internal security within the meaning of Article 25(1) of that code.
(31) This Directive respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In accordance with the prohibition of discrimination contained in the Charter, Member States should implement this Directive without discrimination between the beneficiaries of this Directive on grounds such as sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinion, membership of an ethnic minority, property, birth, disability, age or sexual orientation’.
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69 ... Third, and in accordance with Article 51(1) of the Charter of Fundamental Rights (‘the Charter’), it must respect the right to an effective judicial remedy enshrined in the first paragraph of Article 47 thereof, which provides, inter alia, for the right of access to a court or tribunal with the power to ensure respect for the rights guaranteed by EU law and, to that end, to consider all the issues of fact and of law that are relevant for resolving the case (judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters), C‑245/19 and C‑246/19, EU:C:2020:795, paragraph 66 and the case-law cited).
74 Second, as is stated in recital 31 of Directive 2004/38, the Member States should implement that directive in compliance with the principle of the prohibition of discrimination laid down in the Charter. In the case in the main proceedings, it is not apparent from the file before the Court, and it has not been argued by any party during the proceedings before it, that the restrictive measures at issue in the main proceedings were adopted or applied in disregard of that principle.
92 Third, as regards the question of proportionality, in the strict sense, of restrictive measures such as those referred to in the first question referred, the referring court will have to ascertain whether they were disproportionate in relation to the public health objective pursued, having regard to the impact that those measures may have had on the free movement of Union citizens and their family members, on the right to respect for their private and family life guaranteed by Article 7 of the Charter and on the freedom to conduct a business, enshrined in Article 16 thereof, of legal persons such as Nordic Info. 93 It should be borne in mind that an objective of general interest, such as the objective of protecting public health referred to in Article 27(1) and Article 29(1) of Directive 2004/38, may not be pursued by a national measure without having regard to the fact that it must be reconciled with the fundamental rights and principles affected by that measure as enshrined in the Treaties and the Charter, by properly balancing that objective of general interest against the rights and principles at issue, in order to ensure that the disadvantages caused by that measure are not disproportionate to the aims pursued. Thus, the question whether a limitation on the rights guaranteed in Articles 7 and 16 of the Charter and on the principle of freedom of movement enshrined in Article 3(2) TEU, in Articles 20 and 21 TFEU, as implemented by Directive 2004/38, and in Article 45 of the Charter may be justified must be assessed by measuring the seriousness of the interference which such a limitation entails and by verifying that the importance of the objective of general interest pursued by that limitation is proportionate to that seriousness (see, to that effect, judgments of 22 November 2022, Luxembourg Business Registers, C‑37/20 and C‑601/20, EU:C:2022:912, paragraph 64 and the case-law cited, and of 26 April 2022, Poland v Parliament and Council, C‑401/19, EU:C:2022:297, paragraph 66 and the case-law cited).
