Gradual re-opening of EU+ borders as of 1 July 2020

1. On 11 June 2020, the EU Commission issued a communication regarding the lifting of travel restrictions to EU+ (all Schengen Member States, Iceland, Liechtenstein, Norway, and Switzerland) after 30 June 2020 (https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1035).

Two aspects are important.

1.1. List of countries for whom travel restrictions would be gradually removed as of 1 July 2020

The Member States should agree on a list of countries for whom all travel restrictions would be lifted as of 1 July 2020. The decision “to lift restrictions for a specific country should be based on the epidemiological situation and coronavirus response in that country, the ability to apply containment measures during travel, and whether or not that country has lifted travel restrictions towards the EU. Restrictions should be lifted first with countries whose epidemiological situation is similar to the EU average and where sufficient capabilities to deal with the virus are in place. Restrictions should remain in place for countries whose situation is worse than in the EU.

The list must be the result of a common and coordinated approach with flexibility (the list is reviewed/updated periodically and itwill be possible to reintroduce travel restrictions for a specific country if the criteria are no longer met. In addition, Member States can still refuse entry to a non-EU traveller presenting a threat to public health, even coming from a country for which restrictions were lifted.

1.2. Extension of specific categories of travellers with an essential function or need

Some categories of travellers would be added to the “essential travel” list, implying they can travel for the listed purposes:

Where the travel restrictions continue to apply, Member States should ensure that those travelling to study are exempted, together with highly skilled non-EU workers if their employment is necessary from an economic perspective and the work cannot be postponed or performed abroad. EU citizens and citizens of Schengen Associated States and non-EU nationals legally residing in the EU, as well as their family members, should also be exempt from the travel restriction regardless of whether or not they are returning home, as was the case until now.

2. Further to the abovementioned communication, a proposal for a Council Recommendation on the temporary restriction of non-essential travel into the EU, dated 25 June 2020, was published on 26 June 2020. On 30 June 2020 Council Recommendation on the temporary restriction on non-essential travel into the EU and the possible lifting of such restriction was approved (https://data.consilium.europa.eu/doc/document/ST-9208-2020-INIT/en/pdf).

We summarize its main content.

2.1. List of countries for whom travel restrictions would be gradually removed as of 1 July 2020

The “Member States should gradually lift the temporary restriction on non-essential travel to the EU as from 1 July 2020 in a coordinated manner with regard to the residents of the third countries listed in Annex I” (paragraph 1).

The current list of 15 countries, not affected by travel restrictions, in Annex I includes Algeria, Australia, Canada, Georgia, Japan, Montenegro, Morocco, New Zealand, Rwanda, Serbia, South Korea, Thailand, Tunisia, Uruguay, and China, the latter subject to confirmation of reciprocity. Countries like the USA, Brazil, India, Russia are not – yet – on the list. The list is drafted by using “the methodology and criteria set out in” the abovementioned communication dated 11 June 2020. These criteria “relate to the epidemiological situation and containment measures, including physical distancing, as well as economic and social considerations, and are applied cumulatively” (paragraph 1). For the epidemiological situation “third countries listed in Annex I should meet in particular the following criteria: 

– close to or below the EU average, as it stands on 15 June 2020, of new COVID-19 cases over the last 14 days and per 100 000 inhabitants; 

– the trend of new cases over the same period in comparison to the previous 14 days is stable or decreasing; and 

– the overall response to COVID-19 taking into account available information on aspects such as testing, surveillance, contact tracing, containment, treatment and reporting as well as the reliability of available information and data sources and, if needed, the total average score across all dimensions for International Health Regulations (IHR). Information provided by EU Delegations based on the checklist annexed to the Communication of 11 June 2020 should also be taken into account.” (paragraph 2)

This list is dynamic: it should be reviewed, and possibly updated (countries can be added or deleted), every 2 weeks “following an overall assessment based on the methodology, criteria and information” above (paragraph 4). Furthermore “reciprocity should also be taken into account regularly and on a case-by-case basis” (paragraph 6).

Decisions to lift restrictions should not be taken unilaterally by individual Member States “before the lifting of the restriction has been coordinated” in line with the Recommendation (paragraph 7).

It is important to mention that “residence in a third country for which the restrictions on non-essential travel have been lifted should be the determining factor (and not nationality)” (paragraph 3). This means e.g. that a US national who resides in Australia is not affected by the restriction on non-essential travels.

2.2. Extension of specific categories of travellers with an essential function or need

Citizens from third countries for which the non-essential travel restrictions remain in place, should in any event be allowed to travel if they belong to one of the categories listed in Annex II, albeit that the Member State can ask the travellers to self-isolate or can “introduce additional security measures for these travellers, especially when their trip originates in a high risk region” (paragraph 5). New categories are:

x. Third-country nationals travelling for the purpose of study; 

xi. Highly qualified third-country workers if their employment is necessary from an economic perspective and the work cannot be postponed or performed abroad.

Furthermore no non-essential travel restriction should apply, “independent of the purpose of travel”, to:

(a) Union citizens within the meaning of Article 20(1) TFEU and third-country nationals who, under agreements between the Union and its Member States, on the one hand, and those third countries, on the other hand, enjoy rights of free movement equivalent to those of Union citizens, as well as their respective family members; 

(b) third-country nationals who are long-term residents under the Long-term Residence Directive persons deriving their right to reside from other EU Directives or national law or who hold national long-term visas, as well as their respective family members.” (paragraph 5)