Public Health and Public Security versus Free Movement of Persons : Restriction on Cross-border Traffic at the Internal Borders of the EU

(1)

J U R I D I C U M

Public Health and Public Security versus Free

Movement of Persons

Restriction on Cross-border Traffic at the Internal Borders of the EU

Lasse Lund

VT 2020

JU600G Självständigt juridiskt arbete, 15 högskolepoäng Handledare: Moa Näsström

(2)

Abstract

The Free Movement of Persons is a crucial part of the European Union and the EU Citizenship. It has been under a development since the establishment of the Treaty of Rome in 1957 until the recent Schengen Borders Code (2016/399). However, two Member States have taken a measure, which might hinder the development. Finland has reintroduced an internal border control to combat the pandemic of COVID-19 which struck in the world during the first months of 2020. Denmark has started with random identity checks and periodic controls at the Swedish border due the threat of cross-border crime.

Article 21 (1) of the Treaty of Lisbon establishes the right to move and reside freely within the Member States. However, the same article defines that the right can be limited despite the total ban on internal border controls according to Article 67 (2). The limitations may occur in accordance with Article 45 (3) TFEU. Finland fulfils the criteria to invoke the derogation but fails the Test of Proportionality. There is a less restrictive option to the border control, a health check introduced by the Commission. Also, Denmark fulfils the criteria to invoke the derogation but fails the Test. The measure might have a discriminatory consequence at the border area which implies existence of less restrictive measures. The Citizenship Directive (2004/38) sets out detailed provisions regarding the right set by Article 21 (1) of the Treaty. Article 5 (1) of the Directive enables an initial right to enter into a Member State. However, a restriction could be justified in accordance with Articles 27 and 29. Since the measure must not be proportionate according the framework, Finland could justify the internal border control. However, a restriction on grounds of Public Security must meet the proportionality. Therefore, the Danish measure could not be justified in accordance with the Directive. The Regulation of Schengen Borders Code regulates inter alia the internal borders at the EU. Article 22 of the Regulation eliminates the internal border checks. However, the border control may be reintroduced to prevent a threat to Public Security according to Article 25 (1). The framework does not recognize the reintroduction on grounds of Public Health. However, the Finnish measure has been examined since the legislator has the intention to able the reintroduction to prevent a threat to Public Health. Article 26 sets out the criteria for to establish intern border control. The measure does not fulfil the criterium of last resort due the option of health check. The impact on Free Movement of Person has not been examined enough since the unclear exception of enabling the cross-border traffic with a specific reason. The Danish measure fails both the obligation of last resort and reporting the impact on the Free Movement as well. It is not clear if every other measure has been tried to combat cross-border crime. The potential risk of discrimination at the border area indicates a negative impact on the freedom. Therefore, it does not fulfil the criteria.

One could ask if the EU legislation covers all the possible threats to Public Health and Public Security. The absence of Public Health in Schengen Borders Code indicates either that a risk of such threat has been estimated to be improbable or threats to Public Security are more highly valued. Failing the Test when there are concrete threats to great public interests indicates that the Court might need to define what concrete measures could be used to combat such threat and what needs to be rectified to pass the Test.

(3)

1. General Background

This chapter presents the general background to this paper starting with the development of the Free Movement of Persons continuing with the research question and the aim. The problems in this paper are presented in Sections 1.3 and 1.4. Finally, Sections 1.5 to 1.7 present the method, delimitations and the disposition.

1.1. The Development of the Free Movement of Persons

An area without internal frontiers enabling the Free Movement of Persons is one of the key achievements of the European Union (EU).1_{It has also become a fundamental freedom of the}

Internal Market.2_{Hence, a measure restricting the Free Movement of Persons taken by a}

Member State is a step backward in this development. To explain this, this section presents how different parts within EU Primary and Secondary Legislation3_{regarding the Free Movements}

of Persons have been developed during the evolution of the European Union.

1.1.1. From the Treaty of Rome to the Treaty of Lisbon

The 1957 Rome Treaty established a Common Market4_{including a customs union to the}

European Community (EC).5_{It was a starting point to the concept of Free Movement of Persons}

between the Member States.6_{The Single European Act (SEA) 1986 continued the development}

of the Internal Market.The SEA set a deadline for existing barriers of Free Movement, which would be removed in 1992 but the deadline had no legal effect.7_{The Free Movement of Persons}

seemed to be rather a symbolic part of the EC from 1957 to 1986.

The Maastricht Treaty signed in 1992 established the European Union and a legal system with three pillars of the EU. The third pillar was “Justice and Home Affairs” expanding the competences of the Union to better achieve the aim of the Free Movement of Persons. The pillar focused on inter alia the areas of asylum and immigration.8_{That meant a substantial expansion}

of concrete measures regarding the Free Movement and a step forward towards an Internal

1_{Regulation 1015/2013/EU amending Regulation (EC) 562/2006 in order to provide for common rules on the}

temporary reintroduction of border control at internal borders in exceptional circumstances [2013] OJ L 295/1, para 2.

2_{Directive 2004/38/EC 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 [2004] OJ L 158/77, para 2.

3_{Catherine Barnard, The Substantive law of the EU: The Four Freedoms (6th edn, Oxford University Press}

2019) 202; Robert Schütze, European Union Law with Brexit coverage (2nd edn, Cambridge University Press 2018) 19.

4_{Later renamed to the Internal Market by Single European Act (1986); Barnard (n 3) 16–17.}

5_{The European Union was established by the Maastricht Treaty (1992), which replaced the European}

Community; Schütze (n 3) 22-23.

6_{Schütze (n 3) 13.} 7_{Barnard (n 3) 16-17.} 8_{Schütze (n 3) 23-27.}

(7)

Market without internal barriers. The Amsterdam Treaty (1997) introduced the Area of Freedom, Security and Justice (FSJ) creating a completely new concept. The Amsterdam Treaty includes an expressed freedom regarding the Free Movement of Persons in the area of FSJ confirming the absence of internal borders for persons.9_{Besides that, the Member States agreed}

to incorporate the Schengen Agreement making it part of the legal system of the EU.10_{This is}

how the absence of the internal frontiers became part of the legal system enabling the Free Movement of Persons. Indeed, the 2001 Nice Treaty did not make any significant amendments to the Free Movement of Persons. Finally, the Lisbon Treaty entered into force in December 2009. The Lisbon Treaty consists of two treaties. The first Treaty concerns the Union self, the Treaty on the European Union (TEU).11_{The second one concerns the functions of the Union,}

the Treaty on the Functioning of the European Union (TFEU).12_{The specific provisions}

regarding the Free Movement of Persons are placed in the TFEU, on which this paper focuses.

1.1.2. The Citizenship of the European Union

In the early 1990s, the EC adopted three directives covering both the economically inactive and active citizens of the Member States.13_{The directives were about the rights of residence for} inter alia students, employees and self-employees.14_{Indeed, the framework gave rights to}

students who can be considered as economically inactive citizens15_{, but it was criticized due to}

conditions in order to gain the rights.16_{It was still essential that a citizen of another Member}

State must not become a burden on the welfare system of the Host State.17_{In 1992, The}

Maastricht Treaty established the concept of ‘a Citizenship of the Union’ creating at first a political status enabling the citizens to enjoy several political rights.18_{Despite the}

establishment, it was also an opening for a debate about how the Citizenship will be shaped in the future.19_{In 2004, the Union adopted the Citizenship Directive 2004/38}20_{governing the}

operative secondary legislation of the Free Movement of Persons.21

9_{Barnard (n 3) 18.} 10_{Schütze (n 3) 29.} 11_{Ibid, 35-37.} 12_Ibid.

13_{Eleanor Spaventa, Free movement of Persons in the European Union: Barriers to movement in their}

Constitutional Context (1st edn, Kluwer Law International 2007), 114.

14_{Directive 90/364 on the right of residence [1990] OJ L180/26; Directive 90/365 on the right of residence for}

employees and self-employed persons who have ceased their occupational activity [1990] OJ L180/28; Directive 93/96 on the right of residence for students [1993] OJ L317/59; See also Spaventa (n 13) 114.

15_{Barnard (n 3) 206.}

16_{One part of the criticism was that, the directives benefited only those who were economically active or had}

their own resources. Also, students must have sufficient resources and extensive health insurance despite their status.; Spaventa (n 13) 114. 17_{Spaventa (n 13) 114.} 18_{Schütze (n 3) 25–26.} 19_{Barnard (n 3) 319.} 20_{Dir 2004/38/EC.} 21_{Ibid, 641.}

(8)

1.1.3. The Schengen Area

The original Schengen Agreement was signed by five22_{Member States of the EEC}23_{in 1985}

aiming to establish an area without border controls. The Member States also agreed that the new area would have common rules on visas, police and judicial cooperation.24_{In 1997 the}

Member States agreed to incorporate the Schengen Agreement.25_{It took almost ten years before}

the Member States agreed to incorporate the Agreement in the EU legislation which can probably be explained by a legally complex situation26_{. In 2006 the Regulation 562/2006}

established the rules on the movement of persons across borders, i.e. Schengen Borders Code.27

1.2. The Research Question and the Aim

In the area of the Free Movement of Persons, this paper examines, how the current EU Law enables restrictions on the freedom on the grounds of Public Health and Public Security. The aim is to examine if restrictions on the Free Movement of Persons on the grounds of Public Health and Public Security are in accordance with the current EU law. The sections below describe two situations where two different Member States have restricted the Free Movement on the grounds of Public Health and Public Security. These situations are studied throughout the paper by applying with the current EU law to them. At the end of the paper, there is an analysis on how the current EU Law enables the restrictions on the Free Movement of Persons in these specific cases. In addition to that, the last chapter considers if the current legislation corresponds to the threats in the light of the Public Health and Public Security.

22_{The five Member States were Belgium, France, Germany Luxembourg and the Netherlands; Schütze (n 3) 19.} 23_{European Economic Community, which is a predecessor of the EU.}

24_{Schütze (n 3) 19.} 25_{Schütze (n 3) 29.}

26_{It was a legally complex situation because, there were inter alia parties to the Agreement which were}

non-Member States to the Union; Schütze (n 3) 29.

27_{Regulation 562/2006/EC establishing a Community Code on the rules governing the movement of persons}

(9)

1.3. A Threat to Public Health due to a Pandemic

The first situation is about a pandemic which creates a threat to global public health. The COVID-19 virus broke out on a world-wide scale during thespring of 2020. Supposedly, the first case appeared in China in November 2019.28_{The World Health Organisation (WHO)}

defined the virus as a pandemic on the 11th_{of March 2020.}29_{Due to the spreading of the virus}

in Europe, several Member States of the EU have restricted the cross-border traffic by reintroducing a border control at the internal borders.30_{According to} _{the notifications to the}

Commission of the European Union (the Commission) on the 14th_{of April 2020, 14 Member}

States of the EU have temporarily reintroduced border controls to prevent the spreading of the COVID-19.31_{It varies between the Member States how long time a border control exists at their}

internal border.32

One of these countries is Finland, which notified the Commission of an internal border control starting the 19th_{of March continuing until the 13}th_{May 2020}33_.34_{The Finnish Government}

decided the closure of the Finnish borders on the grounds of Public Health and “health security”.35_{This decision involves that non-Finnish citizens or residents cannot enter the}

country. However, exceptions remain as necessary work travel or access to certain services are allowed by the northern and western borders.36_{This paper studies these decisions, made by the}

Finnish Government because of the problems the decisions cause from the EU law perspective. The restrictions due to the pandemic have been and still are under public debate.37_Therefore,

it is important to make it clear that the restrictions due to pandemic are only studied from the EU Law perspective.

28_{Helena Davidson, 'First Covid-19 case happened in November, China Government records show -report’ The}

Guardian (Hong Kong, 13th_{Mar 2020).}

29_{WHO, ’WHO Director – General’s opening remarks at the media briefing on COVID-19 – 11 March 2020’}

(11 March 2020) < https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020> accessed 14th _{April 2020.}

30_{Migration and Home Affairs, ’Temporary Reintroduction of Border Control’ (European Commission)}

< https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control_en> accessed 14th _{April 2020.}

31_Ibid. 32_Ibid.

33_{Finland has expanded the duration until 14}th _{July 2020; Migration and Home Affairs, ’Temporary}

Reintroduction of Border Control’ (European Commission) < https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control_en> accessed 22th_{May 2020.} 34_{Text to n 30.}

35_{Government Communications Department and others, ‘Government, in cooperation with President of}

Republic, declares a state of emergency in Finland over coronavirus outbreak’ (Finnish Government, 16th _March

2020) < https://valtioneuvosto.fi/en/article/-/asset_publisher/10616/hallitus-totesi-suomen-olevan-poikkeusoloissa-koronavirustilanteen-vuoksi>.

36_Ibid.

37_{See Hannah Devlin and Sarah Boseley, ’Scientists criticise UK government’s ’’following the science’’ claim’}

(The Guardian, 23th_{Apr 2020) <}

(10)

1.4. A Threat to Public Security due to Attacks in the Territory

The second situation is about attacks in the Capital of Denmark creating a threat to public security. Denmark reintroduced a temporary border control at the Swedish border the 12th_of

May 2019. Indeed, the Swedish citizens were suspected of being behind and involved in a number of serious attacks in Denmark. They were suspected inter alia of being involved in an explosion outside the Danish Tax Agency and carrying out two killings during the same year in Copenhagen, the Capital of Denmark.38_{Swedish citizens carrying out crime creates a}

cross-border dimension. According to Danish Minister of Justice Nick Haekkerup, a cross-border control was temporarily introduced at the Swedish border in order to counter the threat of serious cross-border crime.39

The notification made by Denmark confirms that the border control continued until the 12th_of

November 202040_{. The Danish Police carry out random checks and periodic inspections by the}

Danish border control at the Swedish border. The Danish authorities require that everyone crossing the border must be able to show a valid ID.41_{This kind of border control affects the}

free cross-border traffic resulting in a possible hindrance of the Free Movement of Persons. This is the second set of problems which this paper studies.

38_{Jacob Gronholt-Pedersen, ’Denmark sets up temporary border control with Sweden after attacks’ Reuters}

(Copenhagen, 10th_{October 2019) <}

https://www.reuters.com/article/us-denmark-border-sweden/denmark-sets-up-temporary-border-control-at-border-with-sweden-idUSKBN1WP0QZ>.

39_Ibid.

40_{Migration and Home Affairs, ’Temporary Reintroduction of Border Control’ (European Commission)}

< https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control_en> accessed 22th_{May 2020.}

41_{’Border Control at the Øresund Bridge’ Øresundsbron <}

(11)

1.5. The EU Methodology and Materials

This paper uses the legal dogmatic method as the current EU law (de lege lata) regarding the Free Movement of Persons are presented and examined from the EU Sources of Law.42_The

legal dogmatic method interprets and analyses the Sources of Law, but concerning the EU Law, the method to analyse differs from the national Sources of Law.43_{One difference would be the}

Advocate General’s Opinion44_{in judicial proceedings. It is a proposal to the decision of the}

Court of Justice of the European Union (the Court). A similar system can be actually found in a national legal system.45_{However, the Court may consider the extent of the Opinion in its}

decision and if it is necessary to ask for the Opinion at all.46_{Another difference would be that}

the Doctrine becomes relevant in the Opinion but the Court never refers to the Doctrine.47

However, a national supreme court may refer to the Doctrine to study de lege lata in a specific situation.48_{Therefore, the Doctrine may have a lower ranking in the EU Sources of Law than}

in a national counterpart.

Concerning this paper, the relevant Sources of Law within the EU law are Primary Legislation, General Principles, Secondary Legislation, judgments of the Court, Soft Law and Doctrine. The Primary Legislation was created by the Member States and prevails over other Sources of Law.49_{The Court is responsible to guard that the EU legislation is followed by the EU organs}

and the Member States, and it has a commitment to interpret the legislation.50_{This paper studies}

the Primary Legislation in light of the judgments. The Principle of Proportionality is a part of the General Principles51_{pervading in the EU law as well it does in several Western European}

legal systems.52_{This Principle will be especially analysed when the paper studies the grounds}

of Justification.

42_{Claes Sandgren, Rättsvetenskap för uppsatsförfattare – Ämne, material, metod och argumentationen (4th edn,}

Norstedts Juridik, 2018) 49.

43_Ibid.

44_{See e.g. Opinion of Mr Advocate General Geelhoed of 5 July 2001, Baumbast and R v Secretary of State for}

the Home Department, EU:C:2001:385.

45_{Jörgen Hettne and Ida Otken Eriksson (ed.), EU-rättslig metod – Teori och genomslag i svensk}

rättstillämpning (2th edn, Norstedts Juridik, 2012), 116.

46_{Ibid, 117.} 47_{Ibid, 120–121.}

48_{Ulf Bernitz and others, Finna rätt – Juristens källmaterial och arbetsmetoder (11th edn, Norstedts Juridik AB}

2010) 154.

49_{Hettne and Otken Eriksson (n 45) 42.} 50_{Ibid, 49.}

51_{Ibid, 63.} 52_Ibid.

(12)

The Secondary Legislation is a body of law consisting of Regulations, Directives, Decisions, Recommendations and Opinions.53_{The paper studies Citizenship Directive}54_{and the}

Regulation of Schengen Borders Code55_{in the light of judgments of the Court. However, if}

there is a conflict between the Primary Legislation with the Directive and the Regulation, the Primary Legislation together with the Directive will prevail.56_{Also, the preambles connected}

to the Directive and the Regulation have been used as a source. The preamble shows the legislator’s intention.57_{However, it is a non-binding part of act. Therefore, it may only support}

how the act can be interpreted.58

The Court’s rulings have been used in order to analyse both Primary and Secondary Legislation. The Court does not consider itself formally bound to earlier judgments,59_{but the earlier practice}

is frequently followed in cases with similar circumstances.60_{Therefore, the judgments have a}

high precedent value. In addition to that, there is a crucial function to create and complement the current law because the EU law still is quite a new area of law.61_{In addition to cases from}

the Court, rulings from the EFTA Court (Court of European Free Trade Association)62_have

been used in this paper to analyse and interpret the Secondary Legislation.

Soft Law is a non-binding act, but it has been considered to have a high value because the Commission uses more and more the soft law to create guidelines to the Member States.63_The

guidelines can be applied for example in a specific situation like a pandemic.64_{Since, there are}

guidelines for the Member States how to handle the pandemic, it is up to the Member States to use and interpret those.

53_{The Directorate General for Communication, ’Types of EU law’ (European Commission)}

<https://ec.europa.eu/info/law/law-making-process/types-eu-law_en> accessed 12th_{May 2020.} 54_{Dir 2004/38/EC.}

55_{Regulation 2016/399 on a Union Code on the rules governing the movement of persons across borders}

(Schengen Borders Code) [2016] OJ L 77/1.

56_{Judgment of 31 January 2006, Commission of the European Communities v Kingdom of Spain, C-503/03,}

EU:C:2006:74; Barnard (n 3) 481.

57_{Schütze (n 3) 895.}

58_{Christina Ramberg and others, Rättskälla – en introduktion i kritiskt tänkande (1st edn, Norstedts Juridik AB,}

2018) 31.

59_{Hettne and Otken Eriksson (n 45) 51.} 60_{Bernitz (n 48) 68.}

61_{Ibid, 69.}

62_{The EFTA Court deals with cases regarding the implementation, application or interpretation of EEA law with}

aim to ensure inter alia the Free Movement of Persons. 27 EU Member States in addition to Iceland, Norway and Lichtenstein are parties to the EEA Agreement. The EU law regarding the Single Market has been transfered to the EEA law. The EFTA Court has a jurisdiction over Iceland, Liechtenstein and Norway; ’Introduction to the EFTA Court’ (EFTA Court) < https://eftacourt.int/the-court/introduction/> accessed 24th _{May 2020.}

63_{I Hettne and Otken Eriksson (n 45), 46 ff.} 64_{See Chapter 3.1.2.}

(13)

As stated before, the Doctrine has a lower value in the EU Sources of Law. However, the Doctrine has been used in this paper to complement the argumentation. The sources have been scientific articles and literature in Swedish and English. The language of national Doctrine can be any of EU languages. This might be a reason why the Court does not use it at all.65_The

author uses Doctrine in English and Swedish because these are the most familiar languages for him.

In addition to the Sources of Law, this paper uses press releases and news articles to add substance in other subjects than jurisprudence. Also, their aim is to create depth in the argumentation. The webpages have been chosen carefully and their aim is to complement the argumentation. These materials have been examined in several languages if it has been necessary. If it has been so, it is explained in the footnotes. In some cases, a concept’s linguistic meaning has been examined. This has been relevant when there had been fewer sources available.

1.6. Delimitation

The focus lies solely on the Free Movement of Persons and especially the EU Citizenship. Therefore, the other freedoms66_{based on the EU law will be disregarded. However, the Free}

Movement of Workers interacts with the focus area when it comes to the case law, but the paper will not go any deeper regarding the Workers. Also, there is some case law from other areas than Workers and Persons which is applicable in the Principle of Proportionality. However, this case law is taken into account only to illustrate the Court’s approach in a specific matter. The situations presented in this paper have a focus on cross-border traffic at the internal borders of the EU. Due to the focus on the internal borders, possible measures taken by the Member States regarding the external borders are excluded. The analysis consists only of provisions relating to these types of legislation regarding the situations.

When it comes to the Schengen Borders Code, the provisions without connection to Public Health and Public Security are disregarded. The process regarding how the Member States have proceeded when the border control has been introduced, e.g. the notification of reintroducing an internal border control to the Commission and the measure’s duration are excluded. In the Citizenship Directive, provisions regarding the administrative formalities and residence are excluded.

The cases have been limited to those which are relevant to the EU Citizens, but the family members of EU Citizens are disregarded. The case law might concern third-country nationals (TCNs) and their family members and thus the legal argumentation without connection to the EU Citizens is excluded. When there is a case with a connection to the TCNs, the circumstances prevail over the nationality of parties in a specific case.

65_{Hettne and Otken Eriksson (n 45).}

(14)

1.7. Disposition

The Second Chapter of paper presents the Concept of the Free Movement of Persons by examining the applicable EU legislation regarding the threats to Public Health and Public Security. The chapter starts with explaining the relevant provisions in the Primary Legislation (the Lisbon Treaty). The following Section presents the applicable provisions in the relevant Secondary Legislation divided to the Citizenship Directive and the Schengen Borders Code. Both Sections under the Second Chapter end with an explanation how parts of the specific type of legislation interact with each other.

The Third Chapter is about the justifications of restrictions set by the Member States due to the threats to Public Health and Public Security. The Chapter begins with presenting the relevant provision and different stages of justification based on the Treaty. The Section ends with an analysis on if the restrictions of Free Movement of Persons set by Finland and Denmark can be justified. The following section starts with presenting the criteria on the justification based on the Directive. The Section ends with a combined analysis on the countries. The same structure has been followed at the last section, i.e. Justification based on the Schengen Borders Code. However, the analysis consists of an examination of notifications following a country-based study based on the provisions of framework.

The Final Chapter presents the Conclusion by answering the research question and by deducing if the specific situations meet the relevant EU Law. The chapter finishes with a short analysis on how the relevant legislation corresponds to the threats in the light of Public Security and Public Health.

(15)

2. The Concept of the Free Movement of Persons

Restricting the cross-border traffic by introducing an internal border control affects the Free Movement of Persons. In order to go deeper and to answer the research question, this paper will start by examining the Free Movement of Persons in general and explaining why it is relevant in that situation.

The concept of the Free Movement of Persons is envisaged by the EU Treaties, the Primary Legislation67_{including both economically active and economically passive EU citizens. This}

concept has been regulated in the current EU Treaty, the Lisbon Treaty. The concept of EU citizenship has been regulated on detail level in the Directive 2004/38 on the right to move and reside freely (‘the Citizenship Directive’).68_{When it comes to the regulation regarding the}

internal border control, the rules exist in the Schengen Borders Code (2016/399). The intention below is to especially study how the restrictions based on a pandemic and a Threat to Public Security affect the rules regarding the Free Movement of Persons.

2.1. The Primary Legislation – The Lisbon Treaty

The right to move and reside freely within the territory of the Member States is part of the EU citizenship established by Article 20 (2) (a) TFEU69_{: ‘They [the EU Citizens] shall have, inter} alia: the right to move and reside freely within the territory of the Member States’. In addition

to the Treaty provision, the Court has decided on the significance of the citizenship in

Grzelczyk70_{. The Court considered that the citizenship is a fundamental status of nationals of}

the Member States, which enables enjoyment of the same treatment in law regardless of the nationality if there is no exception to this separately provided.71_{This points out that the Free}

Movement of Persons is part of the fundamental status of Member States’ nationals.

2.1.1. The Right to Exercise the Free Movement of Persons - Article 21 (1) TFEU

The Article 20 (a) TFEU establishes the right to move and reside freely as a part of the Union Citizenship. However, Article 21 (1) TFEU has been considered as a primary right72_regarding

the Free Movement of Persons established by the Treaty in connection with the EU citizenship. The article differs from Article 20 (2) (a) TFEU, because it enables limitations and conditions legislated in the Treaty.73

The provision enables the cross-border traffic without a requirement of specific reason for exercising the cross-border traffic, e.g. requirement of being economically active. Also, the 67_{Schütze (n 3) 590.}

68_{Ibid, the figure 15.1 on the page 592.}

69_{Consolidated Version on the Treaty on Functioning of the European Union (TFEU) [2012] OJ 2012 C 326/47.} 70_{Judgment of 20 September 2001, Rudy Grzelczyk v Centre public d’aide sociale d’}

Ottignies-Louvain-la-Neuve, C-184/99, EU:C:2001:458.

71_{C-184/99 Grzelczyk, paragraph 31; Barnard (n 3) 324.} 72_{Barnard (n 3) 323.}

(16)

earlier case law from the Court supports this argument. In Baumbast74_{the Court considered that}

the Free Movement can be enjoyed without pursuing a professional or trade activity.75

Consequently, there should be neither a control nor requirement of a specific reason in order to exercise the cross-border traffic.

An initial right of entry into another Member State and a right to leave the Home State is part of the right to move freely within the Union.76_{This forms the ground for the cross-border traffic}

without any restrictions. Both case law and the Treaty provisions assume that the cross-border traffic at the internal borders is passing without restrictions.77_{In addition to that, the aim of the}

Free Movement of Persons was to eliminate barriers to the Internal Market.78_{If there is an}

obstacle in cross-border traffic, it could compromise the core of Internal Market itself. These arguments indicate that restrictions regarding the cross-border traffic should be issued restrictively.

Due to the pandemic, the Finnish Government decided to close the Finnish borders, with the exception of Finnish citizens and residents or if there is a valid reason to cross the border.79

Other EU citizens cannot enter into the country and exercise their right which has evolved in the general case law80_{of Article 21 (1) TFEU. This kind of governmental decision}

compromises the right of Free Movement of Persons. The Treaty provision does not give a direct opportunity to a Member State, in this case Finland to make an exception on this right. The Court has considered that there should not be any obligation to have a specific reason to cross a border inside the EU.81_{However, this kind of exception can be justified on the grounds}

of Public Health, which is studied in Chapter 3.

When it comes to the situation in Denmark, it is not such a “clear cut” situation as it is with the Finnish restrictions. The border authorities in Denmark will do random checks and periodic inspections at the border creating a situation where it is unclear how often a traveller must show a valid ID or when a vehicle will be inspected. There is not a general ban on entering into a country either, but rather a control over who is entering into the country. Nonetheless a border control restricts the right to exercise the cross-border traffic freely and therefore, it might breach both case law and the Treaty provision. The border control has been set up in order to protect the Public Security which can potentially be justified.

74_{Judgment of 17 September 2002, Baumbast and R v Secretary of State for the Home Department, C-413/99,}

EU:C:2002:493.

75_{C-413/99 Baumbast, paragraph 83; Barnard (n 3) 324.}

76_{Art. 21 TFEU; Judgment of 9 November 2000, The Queen v Secretary for the Home Department, ex parte}

Nana Yaa Konadu Yiadom, C-357/98, EU:C:2000:604; Judgment of the Court of 4 October 2012, Hristo Byankov v Glaven sekretar na Ministerstvo na vatreshnite raboti, C-249/11, EU:C:2012:608, paragraph 79;

Barnard (n 3) 324.

77_{Art. 21 TFEU; C-413/99 Baumbast.}

78_{Judgment of 5 May 1982, Gaston Schul Douane Expediteur BV v Inspecteur der Invoerrechten en Accijnzen}

Roosendaal, 15/81, EU:C:1982:135; Schütze (n 3) 494.

79_{See the Chapter 1.3.}

80_{15/81 Gaston Schul Douane Expediteur BV v Inspecteur der Invoerrechten en Accijnzen Roosendaal;}

C-413/99 Baumbast, paragraph 83; Schütze (n 3) 494.

(17)

2.1.2. Absence of an Internal Border Control – Article 67 (2) TFEU

There is a Treaty provision under the Title V “Area of Freedom, Security and Justice” in the Lisbon Treaty regarding how the Union, including the Member States shall approach an internal border control, namely the Article 67 (2) TFEU:

‘It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. …’

The Article is a part of the framework regarding the Free Movement of EU citizens82_meaning

that the Member States must secure the cross-border traffic by ensuring the absence of internal border control. Even if the provision is also about external border controls and how the third-country nationals should be treated, it shows the importance of the absence of internal border controls.

Also, the case law supports the absence of an internal border control. In Joined cases, C-188/10

and C-189/1083_{two Algerian citizens were controlled including a check of their identity by the}

police in a border area by the Belgian border in France. The police control was issued in accordance with the French Code of Criminal Procedure.84_{The Algerian citizens raised the}

issue and claimed that the provision of the Code of Criminal Procedure providing an authorization of an identity check at the border is contrary the Article 67 (2) TFEU.85_The

question was before the Court, if a national authority, in this case the police can check the identity of a person nearby an internal border irrespective of the nationality of the person.86

According the Court, the Treaty provision precludes such a national provision which grants the police authority to check the identity of any person nearby a border area, because the application of national legislation cannot have “an effect equivalent to the border checks”.87_{The Court also}

refers to the Schengen rules when it comes to the absence of the internal border controls.88

In addition to the total absence of internal border control, there should not be equivalent functions to the border checks e.g. a police control in order to check someone’s identity.89_Both,

the case law and the Treaty provision90_{indicate a total ban of an internal border control.}

According to the French Government, the identity checks are justified in order to combat a specific type of criminality at border crossings and along borders.91_{The Court did not accept}

82_{Barnard (n 3) 369.}

83_{Judgment of 22 June 2010, Aziz Melki and Sélim Abdeli, C-188/10 and 189/10 EU:C:2010:363.} 84_{Ibid, paras 17-20. See also The Code of Criminal Procedure (Code de Procédure pénale), art. 78-2 fourth}

paragraph. 85_{Ibid, paras 18–19.} 86_{Ibid, para 59.} 87_{Ibid, para 75.} 88_{Ibid, para 66.} 89_{Ibid, para 75.} 90_{67 (2) TFEU.}

(18)

the justification from the Government because it was an action corresponding to a border check. One can therefore wonder if there isany way to justify an identity check by the internal border.

2.1.3. The Justification Grounds – Article 45 (3) TFEU

Article 45 TFEU is about the Free Movement of Workers. Despite the focus on workers within the Article, the justification grounds in Article 45 (3) TFEU are applicable to limitations referred to in Article 21 TFEU.92_{Article 21 TFEU does not specify the applicable grounds on}

limitations and therefore, the justification grounds must be found in another Treaty provision, which is Article 45 (3).93_{In that way the Article becomes a part of the framework regarding the}

Free Movement of Persons. The justification grounds presented in the provision is analysed in Section 3.1.1.

2.1.4. The Interaction between the Treaty Provisions

This section examines how Articles 21 (1), 45 (3) and 67 (2) TFEU interact with each other. When comparing the framework enabling the cross-border traffic, Article 21 (1) enables the limitations and conditions legislated in the Treaty contrary to Article 67 (2). As a result of lack of limitations and conditions in Article 67 (2) TFEU, the justification grounds stated in Article 45 (3) become relevant to examine if the restrictions can be justified on the grounds of Public Health and Public Security. Article 45 (3) enables the limitations referred to Article 21 (1) TFEU. When Denmark and Finland are establishing a border control and hence hindering the cross-border traffic, there might be a breach of the Treaty provisions which need to be justified in accordance with Article 45 (3).

92_{Otilia-Evelina Ristea,’Free Movement of EU citizens: Limitations on grounds of Public Policy, Public}

Security and Public Health’ (2011) 1 Challenges of the Knowledge Society 724-736, 725.

93_{Judgment of 28 October 1975, Roland Rutili v Ministre de l’intérieur, 36/75, EU:C:1975:137, paragraphs}

(19)

2.2. The Secondary Legislation

The Treaty provisions previously discussed above constitute the legal framework of the Free Movement of Persons inside the EU.The Secondary Legislation creates a specific right based on the Treaty which the Member States must either harmonize or implement. Therefore, it is necessary to go through to the current secondary legislation regarding the Free Movement of Persons. The Citizenship Directive (2004/38) and the Schengen Borders Code (2016/399) become relevant when the Free Movement has been restricted.

2.2.1. The Citizenship Directive (2004/38)

The Citizenship Directive is connected to Article 21 TFEU by setting out detailed provisions concerning the right to move and reside freely in another Member State.94_{The Directive aims} inter alia to coordinate special measures including restrictions concerning the Free Movement

of EU Citizens justified on grounds of e.g. Public Security or Public Health,95_{which Article 1}

(c) confirms. So, if the Treaty provision opens up for restrictions on the Free Movement of Persons, the Directive sets the framework in detail how it can be done. This indicates the significance of the Directive. Also, the Court has emphasised the importance of the Directive in Metock96_{by following statement:}

`As is apparent from recital 3 in the preamble to Directive 2004/38, it aims in particular to ‘strengthen the free movement and residence of all Union citizens’, so that Union citizens cannot derive less right from that directive than from instruments of secondary legislation which it amends or repeals.´97

It is one additional support to consider the Directive as a fundamental instrument in addition to the Treaty provisions in order to secure the rights belonging to the Free Movement of EU citizens. Therefore, it is also applicable in situations where a Member State restricts the cross-border traffic. In that way the Citizenship Directive is relevant in the context of a pandemic and a threat to public security. Even if the Directive focuses both on the EU citizens and their family members,98_{the focus lies entirely on the EU citizens.}

The restrictions set by Denmark and Finland affect the right to entry into the country either by banning the non-citizens and non-residents from entering into the country or by eventually prohibiting a person from entering after checking the identity of the person. Therefore, the specific right to enter into the country must be examined.

94_{Dir 2004/38/EC, Article 1.} 95_{Dir 2004/38/EC, para 22.}

96_{Judgment of 25 July 2008, Blaise Baheten Metock and others v Minister for Justice, Equality and Law}

Reform, C-127/08, EU:C:2008:449.

97_{Ibid, para 59.}

(20)

Article 5 (1) in the Citizenship Directive explicitly define the right to enter into another Member State. However, the Article does not require that EU citizens must be able to travel across the border into another Member State without a valid identity card or passport, even though the Court considered so in the Joined Cases, C-188/10 and C-189/10.99_{Questions regarding the}

valid travel documents when crossing the border are regulated in inter alia the Schengen Border Code instead of the Directive. In addition to the provision, the case law has expressed the initial right of entry into another Member State.100_{If a Member State restricts the right of entry, it}

hinders EU citizens to use the right leading to an eventual breach of the Directive. Therefore, the eventual breach must be justified. This kind of restriction can be justified in accordance with Articles 27-33 of the Directive, which is examined in Section 3.2.1.

2.2.2. The Schengen Borders Code (2016/399)

The Schengen Borders Code (2016/399) (SBC) is connected to Article 26 (2) TFEU which is about the Internal Market without internal frontiers. The Article aims to ensure the Free Movement of Persons within the Internal Market.101_{Even if the Treaty provision is connected}

to the Internal Market, it is only logical to consider that the Internal Market cannot work if the EU citizens could not move freely between the Member States.102_{Thus, the SBC has the}

authority from the Treaty provision belonging to the framework of the Free Movement of Persons in addition to Articles 21 (1) and 67 (2) TFEU. Inside the framework, the focus of the SBC is on regulating both the external and the internal borders of the EU, making it relevant when the cross-border traffic has been restricted.

The SBC provides for the absence of border control of persons crossing the internal borders between the Member States according to Article 1 of the Regulation. However, if it is necessary in the view of threats to the public policy, public health or internal security of one or more Member States, a temporary reintroduction of internal border control might be allowed.103

Therefore, the SBC is applicable in the situation where both Finland and Denmark has set up an internal border control.

The Regulation regulates the area regarding the border checks including the valid travel documents at the internal border of the EU. The main rule regarding the internal border control is set by Article 22 of the Regulation, which states that ‘Internal borders may be crossed at any point without a border check on persons, irrespective of their nationality, being carried out’. Likewise, in the Joined cases C-188/10 and C-189/10 the Court did not accept an identity-check of the Algerian citizens in the border area in France in the light of the local Criminal Procedure Code.104_{The Court also referred to the legislation in the former Schengen Borders Code}

(562/2006), which has been replaced by the Regulation 2016/399, when it was interpreting the

99_{Joined Cases C-188/10 and 189/10, para 75.} 100_{C-413/99 Baumbast.}

101_{Ibid, para 2.} 102_{Dir 2004/38, para 2.}

103_{Reg 2016/399, paras 6 and 22.}

(21)

valid EU law regarding the border areas.105_{So, both a border check at the border itself and in}

the border area in general are prohibited by the Regulation and the case law. This indicates that a restriction in order to protect the Public Health and Public Security must be justified in accordance with the Regulation.

Articles 25 – 26 of the Regulation under the title “Chapter II” are regulating the temporary reintroduction of border control at the internal borders of the EU. The articles are studied in the following chapter, because they indicate a justification ground for an internal border control.

2.2.3. The Interaction of Secondary Legislation

Concerning the relevant secondary legislation in the context of the Free Movement of Persons, the Citizenship Directive sets out provisions regarding the right to move and reside freely in another Member States.106_{The rights set out in the Directive, e.g. the right to enter into another}

Member State 107_{concerns the EU citizens and their family members.}108_{Contrastingly, the SBC}

is about the rules regarding the border controls, with the main rule not to carry out a border check at the internal border at all.109_{Accordingly, the Directive gives the right to the EU}

citizens, the Regulation complements the right by securing the exercising the right with the specific rules. If there is a temporary reintroduction of border control by a Member State, it affects the other EU citizens’ and residents’ right to enter into the country. Therefore, there must be a way to justify the restriction by the rules of the Secondary Legislation.

105_{Ibid, paras 65-69.} 106_{Art. 21 TFEU.}

107_{Dir 2004/38, Article 5.} 108_{Ibid, Article 1.}

(22)

3. Justifications

This chapter studies if the Finnish and Danish decisions to reintroduce an internal border control could be justified in the light of the Primary and Secondary Legislation presented in Chapter 2. The justification is necessary because the measures might breach the fundamental freedom of EU citizens.

3.1. Justifications Based on the Treaty

First, a justification based on the Treaty must be examined. A restriction on the Free Movement of Persons must be justified on the basis of legitimate public interests.110_{The public interest}

which the Member State is relying on, affects how the measure will be studied, e.g. if the measure is discriminatory or not. Subsequently, the public interest itself will be analysed in order to consider if it really protects that specific interest. Lastly, the proportionality of the measure will be examined before the outcome of the analysis.

3.1.1. The Express Derogations – Article 45 (3) TFEU

The legitimate public interests are stated in Article 45 (3) TFEU (see Section 2.1.3) which are Public Policy, Public Security and Public Health. Thus, there are three different justification grounds which can be used on restrictions on the Free Movement of Persons. These justification grounds laid down the Treaty are called express derogations. The express derogations are divided into general and specific derogations.111_{Article 45 (3) TFEU forms the general}

derogations.112

The Court has held that the general derogations laid down by the Treaty can solely justify direct113_{and indirect discriminatory}114_measures.115_{According to the Doctrine, the}

non-discriminatory measures116_{violating the Free Movement, can also be justified with the general}

derogations.117_{However, if a Member State takes a measure justifying it with a specific}

derogation, which is a justification ground unrecognised by a Treaty (‘imperative requirement’), the measures must satisfy the four conditions set by Gebhard.118

110_{Schütze (n 3) 646.} 111_{Barnard (n 3) 475 ff.} 112_Ibid.

113_{Direct discrimination prohibited by Article 18 TFEU means different or less-favourable treatment on the}

grounds of nationality; Barnard (n 3) 214.

114_{A requirement which separates the nationals and migrants for national’s favour, e.g. a language requirement;}

Judgment of 28 November 1989, Anita Groener and The Minister for Education and the City of Dublin

Vocational Education Committee, C-379/87, EU:C:1989:599; Barnard (n 3) 215.

115_{Judgment of 9 September 2010, Ernst Engelmann, C-64/08, EU:C:2010:506, paragraph 34; See also Schütze}

(n 3) 647.

116_{A rule which impede EU citizen’s freedom of movement irrespective of nationality; Judgment of 27 January}

2000, Volker Graf and Filzmoser Maschinenbau GmbH, C-190/98, EU:C:2000:49, paragraph 18.

117_{Barnard (n 3) 503.}

118_{Judgment of 30 November 1995, Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di}

(23)

1. the measure must be applied in a non-discriminatory manner (non-discrimination); 2. the measure be justified by imperative requirements in the general interest (general

interest);

3. the measure must be suitable for securing the attainment of the objective (suitability); 4. the measure must not go beyond what is necessary in order to attain it (necessity). Depending on which derogation the Member State uses, there are two separate ways to go; either a measure can be solely justified with a general derogation or a measure justified with a specific derogation, which must fulfil the four conditions.119_{Regardless, it is necessary to}

examine both the derogation and the measure.

The Finnish Government has closed the internal border by denying the citizens and non-residents to enter into the country indicating a discrimination on the grounds of nationality. However, Finland invokes the Public Health ground, which is a general derogation. Therefore, it is not necessary to consider if there is discrimination or not. Denmark has issued an internal border control based on a threat to Public Security. The authorities carry out random checks and periodic inspections at the border. The situation is analysed closer in the following section. Nonetheless, it indicates that the entry into the country is conditional. There is a condition if a person creates a threat or not, which indicates indirect discrimination. However, Denmark invokes protecting of Public Security which is a general derogation. Therefore, it is not necessary to consider if there is discrimination or not.

(24)

3.1.2. The Concept of Public Health

The Public Health derogation is defined by Article 29 (1) Citizenship Directive120_{. There are}

two different situations when Public Health derogation can be invoked. The first one is about if there is a disease with an epidemic potential defined by the relevant instruments of the WHO. The second one is about if there is other infectious diseases or contagious parasitic diseases defined in the national legislation.121

The WHO defines the epidemic as an illness, specific related behaviour, or other health-related event, which exceeds the normal anticipation limited to a specific community or region under a precise period.122_{There is a difference between an epidemic and a pandemic, because}

a pandemic is defined as a new disease with a spread worldwide on which most people are not immune.123_{If an epidemic only affects a precise region or community, a pandemic has a wider}

impact since it affects the world in its entirety. This indicates that the provision can be interpreted in a way that the pandemic falls in the scope of disease with an epidemic potential. Member States are concerned about a pandemic in 2020, but during the 1980s and 1990s the concern was the spread of HIV virus and the last stage of the disease, AIDS.124_{The WHO had}

been campaigning against national measures restricting the movement of international travellers infected with the virus.125_{However, between 1988 and 1990 at least seven people had}

been denied entering the United Kingdom (the UK)126_{. They were suspected to be infected with}

the HIV.127_{Overbeek discussed if restricting of the Free Movement of all foreign prostitutes}128

were possible because their activities contribute to the spread of the virus.129_{One of the}

problems was that it was not directly possible to justify restrictions on individuals or groups with the same profession on grounds of Public Health if there was a suspicion of infection.130

120_{Dir 2004/38/EC; Barnard (n 3) 491.} 121_{Article 29 (1) Citizenship Directive.}

122_{WHO ’Definitions: emergencies’<}_{https://www.who.int/hac/about/definitions/en/}_{> accessed 22}th_{May 2020.} 123_{WHO ’Emergencies preparedness, response – What is a pandemic?’ (24}th_{February 2010)}

<https://www.who.int/csr/disease/swineflu/frequently_asked_questions/pandemic/en/> accessed 22th_{May 2020.} 124_{J Pais Macedo Van Overbeek, ’AIDS/HIV Infection and the Free Movement of Persons within the European}

Economic Community’ [1990] 27 CML Rev 791.

125_{Ibid, 792.}

126_{The United Kingdom was a Member State to the EEC.} 127_{Overbeek (n 123), 792.}

128_{‘Any person whose livelihood largely depends on engaging indiscriminate, unemotional sexual encounters for}

money with a series of strangers’; J F Decker, ‘Prostitution as a public health issue’ (1987) Dalton Buris and Yale AIDS Law Project (eds) 82.

129_{Overbeek (n 123), 811.} 130_{Ibid, 795 ff.}

(25)

Therefore, it is necessary to make a distinction between restrictions on a group of people with the same profession and individuals without a connection to each other entering a Member State. The risk of disease spread related to the prostitutes can cause a threat to the Public Health and other parts of the Society, but one can ask if it is necessary to restrict the Free Movement of the whole group. A measure taken by the UK against individuals suspected of infection indicates discrimination against a certain group of people. In 1999 the Commission stated in a Communication that a use of any measures leading to ‘social exclusion, discrimination or stigmatisation of persons with HIV/AIDS’ are rejected.131

The Commissions’ Guidelines for border management measures due to the pandemic132_states

that a Member State may introduce a temporary border control as a reaction to the risk posed by the pandemic in an extremely critical situation.133_{However, this reintroduction of border}

control should not lead to a situation where a clearly sick EU Citizen is denied to enter the country.134_{The Commission states that the health of individuals should be regarded and}

necessary health care should be provided instead of exclusion135_{of a sick person.}136_These

guidelines can mean that persons with no indication of infection or with mild symptoms can be excluded, but a person who is clearly sick must be provided necessary health care by the country in question.

One can ask what an extremely critical situation means. Hrucschka states that fear of overloaded national health system or a prevention of panic do not fulfil the condition of extremely critical situation.137_{If Hrucschka’s interpretation prevails, it is quite difficult to know what kind of}

situation actually fulfils the condition. Furthermore, the Guidelines presents an option to the border controls, namely the organized health checks which do not require a formal reintroduction.138_{One can say that it is a less restrictive measure because this probably would}

enable the Free Movement of Persons continuing without interrupting the traffic at the internal borders.

131_{Commission, ’To the Council and the European Parliament on the special measures concerning the}

Movement and residence of citizens of the Union which are justified on grounds of Public Policy, Public Security or Public Health’ COM (1999) 372 final 12; Barnard (n 3) 491.

132_{Commission, ’COVID-19 – Guidelines for border management measures to protect health and ensure the}

availability of goods and essential services’ C (2020) 1753 final.

133_{Ibid, No 18.} 134_{Ibid, No 19.}

135_{’the refusal to allow an individual to enter the country’; Barnard (n 3) 484.} 136_{C (2020) 1753 final No 19.}

137_{Constantin Hruschka, ‘The pandemic kills also the European solidarity’ (EU Immigration and Asylum Law}

and Policy, 20th_{Mars 2020) <}_{http://eumigrationlawblog.eu/the-pandemic-kills-also-the-european-solidarity/}_>

accessed 14th_{April 2020.} 138_{C (2020) 1753 final No 20.}

(26)

3.1.3. The Concept of Public Security

The Court has considered in Tsakouridis139_{that the concept of Public Security involves both}

internal and external security of Member State.140_{The internal security refers to ‘a direct threat}

to the peace of mind and physical security of the population of the Member State’.141_The

external security refers to a threat to conflict between two states or another threat concerning foreign relations.142_{In this case only the internal security is relevant because acts concerning}

only a population of certain Member State are studied.

The Court’s definition of internal security has a certain similarity with the definition of terrorism set by an earlier framework, namely the Council Framework Decision on combating terrorism.143_{According to Article 1 (1) of the Council Framework a terrorist crime is a threat}

and an action itself to attack upon a person’s life which may cause death or to attack upon the physical integrity of a person.144_{A similar definition of terrorist crime can be found in Article}

3 of Directive 2017/541 on combating terrorism145_{, which has later replaced the Council}

Framework Decision. The definition of terrorism found in the Directive and the Council Framework are more specific and aimed to individual level compared to the definition set by the Court, which aims the whole population. However, without going deeper into terrorist crimes and their criminalisation at the Union level, acts creating a threat to a person’s life or physical security falls into the concept of Public Security, because they may affect the whole population as well.

Since a threat of terrorist crime has been discussed above one can wonder if that specific type of a crime must be conducted to fulfil the conditions of Public Security. The Court has considered that organized drug trafficking might be considered as a threat to the internal security.146_{This argument expands the scale of acts compromising the mental wellbeing and}

physical security of population.

139_{Judgment of 23 November 2010, Land Baden-Württemberg v Panagiotis Tsakouridis, C-145/09,}

EU:C:2010:708.

140_{Ibid, paragraph 43.}

141_{Judgment of 2 May 2018, K v Staatssecretaris van Veiligheid en Justitie and H F v Belgische Staat, C-331/16}

and C-336/16, EU:C:2018:296, paragraph 42.

142_Ibid.

143_{Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism [2002] OJ L164/3.} 144_{Ibid, Article 1 (1) (a-h).}

145_{Directive (EU) 2017/541 of 15 March 2017 on combating terrorism and replacing Council Framework}

Decision 2002/475/JHA and amending Council Decision 2005/671/JHA [2017] OJ L 88/6.

(27)

In Wahl147_{a Norwegian national was denied entering Iceland due to the membership of Hells}

Angels. The national had a possible link to Hells Angels and the intention to establish a Hells Angels club in Iceland148_{. Hells Angels have been considered as a criminal organisation in some}

other states.149_{The Icelandic Court held that Public Security conditions were fulfilled, because}

the establishment of the organisation in Iceland would lead to an increase in organised crime in the country.150_{The EFTA Court held that a personal conduct, in this case the membership must}

likely represent ‘a genuine, present and sufficiently threat affecting one of the fundamental interests of the society’.151_{On the other hand, there was no need to declare the organisation and}

its membership illegal before an entry into the country can be denied. But it was enough to create a threat to Public Security.152_{With these arguments the EFTA Court left to the national}

court to consider if the decision is proportionate.153

Germany reintroduced border controls at its internal borders for totally 50 days in 2015. According to Germany, a spontaneous and uncontrolled influx of TCNs would constitute a serious threat to the internal security and therefore the reintroduction was necessary.154_Even

though the situation was about the TCNs, the Court has held in Joined Cases 188/10 and

C-189/10 that border controls and identity-checks equivalent to the border checks irrespective of

the nationality of person are not in accordance with the EU law.155_{However, the Commission}

considered the German decision to reintroduce internal border controls acceptable in the light of to identify persons amongst the TCNs seeking asylum in Germany, who would create a threat to the Public Security.156

In summary, a threat to Public Security must be as concrete as possible. An act creating a threat of terrorist crime and organized drug trafficking are granted dangers to the population of Member State. However, both uncontrolled and controlled influx of people can endanger the internal security. An uncontrolled influx through the German borders made it clear that enormous group of people without an EU citizenship may represent a possible threat to the internal security. However, in Wahl a membership to a certain organisation was enough to consider that a person can be subject to an exclusion at the border. A possible conclusion is that every intimidating situation regarding Public Security must be analysed individually.

147_{Judgment of 22 July 2013, Jan Anfinn Wahl and the Icelandic State, E-15/12.}

148_{Iceland is an EFTA Member State (the European Free Trade Association); EFTA, ’The European Free Trade}

Association, <https://www.efta.int/about-efta/european-free-trade-association> accessed 24th _{May 2020.} 149_{E-15/12 Wahl, para 68.}

150_Ibid.

151_{Ibid, 129; This is a definition of concept of Public Policy, but the grounds regarded to Public Policy may be}

equally covered by the Public Security; Judgment of 27 October 1997, Régina v Pierre Bouchereau, 30/77, EU:C:1997:172, paragraph 35; Opinion of Mr Advocate General Bot of 8 June 2010, Land Baden-Württemberg

v Panagiotis Tsakouridis, EU:C:2010:322, paragraph 78; Barnard (n 3) 477 ff.

152_{E-15/12 Wahl, paragraph 100.} 153_{Ibid, para 124.}

154_{Commission, ’Commission opinion on the necessity and proportionality of the controls at internal borders}

reintroduced by Germany and Austria’ C (2015) 7100 final, paragraph 12.

155_{Joined Cases C-188/10 and C-189/10, paragraph 75; See also Section 2.1.2.} 156_{C (2015) 7100 final, paras 34–35.}

Public Health and Public Security versus Free Movement of Persons : Restriction on Cross-border Traffic at the Internal Borders of the EU

J U R I D I C U M