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25 Years Schengen Area - The Challenges of COVID-19 and the Consequences of the Pandemic for the Freedom of Goods and Services

More than a month ago, Europe celebrated the first 25 years of the abolition of intra-European border controls - and this despite the restrictions on freedom of travel and the free movement of goods that have just been introduced. Since the Treaty on the European Economic Community came into force more than 60 years ago, the four fundamental freedoms have contributed to the creation of a single market which has been significantly strengthened with the abolition of intra-European border controls.

National solo actions endanger the economy and the freedoms gained

The corona pandemic puts a heavy strain on the four fundamental freedoms (of movement of goods, persons, services and capital) and the achievements of the Single Market for 450 million citizens in 27 EU countries. One country after another is introducing border controls and entry restrictions that restrict the free movement of goods and prevent travel. Irrespective of whether travel restrictions actually help to prevent infections, the European Commission was thus forced to propose the closure of the external borders, accept restrictions on freedom of movement within the Schengen Area, and introduce border management. Furthermore, national seizures and export bans on personal protective equipment caused irritation and led to intervention by the Commission.

In many cases, the interventions can be explained by national politicians seeking to raise their profile and distinguish themselves rather than by rational, coordinated action as is evidenced by the patchwork of measures in Germany and by the fact that seasonal workers were finally allowed to enter the country. In Germany alone, around 100,000 harvest workers will be needed by the end of May, mainly from the eastern EU countries.

Minimisation of interference in the movement of goods and transport required

Border controls and entry bans lead to hindrances in the movement of goods and can bring it to a complete standstill. This was clearly visible at the internal borders between Germany and Poland, with queues of up to 60 km; the transport industry is familiar with this from the EU's external borders, for example with Turkey. Border workers between Germany and France or Germany and the Czech Republic suffer from entry bans that deprive them of their wages and companies of their contracts.

This is why the European Commission adopted Guidelines for border management measures to protect health and ensure the availability of goods and essential services on 16 March 2020.

The transport of goods should not be obstructed by control measures and in particular goods, especially essential goods such as food, should remain available, I.2. of the Guidelines. This includes the possibility of professional travel to ensure the transport of goods and the provision of services, such as for transport workers, I.3. of the Guidelines. Restrictions on the movement of goods and passengers on grounds of public health must be transparent, duly motivated, proportionate, relevant and mode-specific to the respective transport mode and non-discriminatory, I.3. of the Guidelines. Member States should designate priority lanes for freight transport (e.g. in the form of so-called green lanes) and consider waiving existing weekend bans.

The Commission will publish the restrictions on transport on a separate Page of its own. See also the Information of the German Ministry of Transport.

Free movement should be maintained for all goods and should not be subject to restrictions. In particular, the border crossing of essential goods is to remain guaranteed and so-called green lanes, i.e. special lanes for supply transports and trucks, are to be introduced in order to prevent or at least minimise any impairment of supply chains at the temporarily reintroduced border controls. This applies in particular to all relevant crossing points within the trans-European transport network (TEN-T network).

Checks should be limited to the minimum necessary, drivers should not leave their vehicles if possible and should themselves have little contact with the control staff. For the transport of goods that are legally circulating in the EU Single Market, no additional certificates should be required to cross the borders.

The fact that national interests always prevail over common European interests can be seen from the Cabotage Rules and export bans. The current restrictions on foreign carriers should not be enforced until autumn in order to ensure that the supply chains of industry and trade are able to function. In Germany this only applied for one week.

As already stated, national seizures and export bans on personal protective equipment caused irritation and led to intervention by the Commission. There is now an EU-wide regulation on exports of personal protective equipment, VO 2020/102, and Guidelines on its application. In Germany the responsibility for this lies with the BAFA.

Extensive travel restrictions within the Single Market and with third countries

As mentioned above, the European Commission felt compelled to propose the closure of the external borders to suggest, accept restrictions on freedom of movement within the Schengen Area and introduce border management.

The guidelines, published on 16 March 2020, provide for the extensive closure of the EU's external borders, restrictions on entry and health checks on travellers.

They also discourage EU citizens and other people living in the enlarged EU area from travelling abroad. The "enlarged EU area" includes all Schengen countries (plus Bulgaria, Croatia, Cyprus and Romania) and the four Schengen associated countries (Iceland, Liechtenstein, Norway and Switzerland). It also includes Ireland and the United Kingdom to the extent that they join these measures.

Many of the entry bans that are still in place can be replaced by less restrictive measures and are therefore not compatible with the rules of the Schengen Area and the EU Single Market. The Schengen Area celebrated its 25th anniversary on 26 March 2020. It was not until 1995 that border controls were abolished between seven countries - Belgium, France, Germany, Luxembourg, the Netherlands, Portugal and Spain. Today the Schengen Area comprises a total of 26 states: 22 EU Member States and the non-EU members Iceland, Liechtenstein, Norway and Switzerland. In addition to the abolition of checks on persons at the internal borders, the agreement also provides for enhanced police and judicial cooperation, a common visa policy and common rules for checks at the external borders.

Dr Rainer Bierwagen

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Dr. Rainer Bierwagen T   +32 2 6390000 E   Rainer.Bierwagen@bblaw.com