By Mark Sultana – International Private Clients Consultant
The current worldwide outbreak of the COVID-19 has left many people with concerns about the spread of this disease. Due to its sudden spread around the world, the World Health Organisation (WHO) classified coronavirus as a global pandemic. For this reason, Governments introduced restrictions on their citizens while the majority of the European Member States imposed a complete shutdown on their country.
Malta, being a member of the European Union, did its part too. Through different legal instruments, it gradually restricted the country’s economic activity almost to a complete halt. The peak of these restrictions was reached through Legal Notice 92 of 2020 (Travel Ban (Extension to all Countries) Order) which amended Legal Notice 42 of 2020 (Travel Ban Order, 2020) which extended a travel ban on persons to Malta and from Malta to and from all countries.
In order words, Malta closed its frontiers, thus affecting one of the four fundamental freedom of the European Union – the right of free movement of persons.
Truth be told, the borders are not completely closed without exemption, since according to Article 2 of L.N. 92 of 2020, the free movement of goods, humanitarian and repatriation flights are exempted from this Order. Moreover, on the 30th March 2020, the European Commission issued guidance on the implementation of the temporary restrictions on non-essential travel to the EU, on the facilitation of transiting arrangements for the repatriation of EU Citizens and on the effects on visa policy.
It is interesting to note that this was not the first time that Malta temporary suspended certain parts of the Schengen Agreement, and reintroduced border control in terms of Article 25 of the Schengen Border Code (“Where, in the area without internal border control, there is a serious threat to public policy or internal security in a Member State, that Member State may exceptionally reintroduced border control…”).
The first time that Article 25 was invoked (and Malta reintroduced the border control) was in 2010, with the Apostolic visit to Malta of Pope Emeritus Benedict XVI. Then Malta reintroduced border controls in 2015, as a security measure in view of the Valletta Conference on Migration and Commonwealth Heads of Government Meetings, which were held during November and December of 2015. The last use of this exemption was between January and February 2017, when Malta hosted the Malta Informal Summit and Joint Valletta Action Plan meeting.
Malta is not the only Schengen member state that used this faculty. Between year 2006 and November 2019, there were 116 instances in which a Schengen member state had temporary reintroduced border control. And then came COVID-19, which encouraged many countries to this time exercise border control measures, and in some cases closing the borders altogether.
Prior to the COVID-19 pandemic, and for a good 35 years, the Schengen area had never been close to being suspended.
With the sealing off of external borders and the reintroduction of border checks by most of the 26 member states, the novel COVID-19 has turned out to be the biggest challenge that the EU has ever faced against what it deems as its “proudest achievement”: the borderless zone.
But this is a time of necessity. And indeed, as a matter of fact, in its communication to the European Parliament, the European Council and the European Commission have invited the Schengen Member States and the Schengen Associated States (Iceland, Liechtenstein, Norway and Switzerland), to prolong the external border closure for non-essential travel to EU for another month i.e. until May 15, 2020 and reserved to right to prolong this period depending on the developments of the epidemiological situation.
Margaritis Schinas, Vice-President of the European Commission for Promoting our European Way of Life, stated that: “The restriction on non-essential travel from third counties to the EU complements these measures at the EU’s external borders. While we can see encouraging first results, prolonging the travel restriction is necessary to continue reducing the risks of the disease spreading further. We should not yet let the door open whilst we are securing our house.”
This notwithstanding, there is really no lifting of the right of the free movement of EU Citizens; it is rather a situation where this right is being affected by the promulgation of other legal measures. And indeed, Eurocontrol has reported an overall reduction of 86.1% in the number of flights in the EU, and that the passenger traffic has been almost reduced to zero. A similar trend of passenger traffic was also seen in the other modes of transport such as in ferry, coach and rail transport. By invoking article 25 of the Schengen Border Code, together with other measures across the EU, many have been affected, and so has the European right of Free Movement.
Right now, this EU right remains limited, but it is certain that it will have no trouble to resume in its entirety once hopefully, this pandemic is defeated, exit/entry points are reoponed, border controls relaxed, and people start to travel again.
Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on firstname.lastname@example.org.