In an Opinion delivered last week by Advocate General Emiliou, he elaborated his views on the principle of homogeneity that applies between the EU pillar of the EEA and the EFTA pillar of the EEA.
The case, Case C-128/22, Nordic Info v Belgium, concerned a tour operator in the business of organising trips from Belgium to Sweden, amongst other Nordic states (Denmark, Finland, Iceland, and Norway). The national measures in question, whilst there was many during the entirety of the pandemic, centre around two distinct issues: 1) a prohibition on non-essential travel from departing Belgium (in effect, a partial exit ban), and, 2) screening and quarantine upon arrival into Belgium (in effect, a partial entry ban).
Whilst the actual operative part of the Opinion – which is long – has numerous points in about the national measures taken by Belgium taken in the context of the COVID-19 pandemic, it is more interesting what Advocate General Emiliou had to say about travel to the Nordics more generally, given that both Iceland and Norway are not Member States, and the applicable law that might apply.
In terms of the potential applicable law in the case, there is obviously EU primary law in the form of Article 20 TFEU, Article 21 TFEU, Article 45 TFEU, and Article 45 of the Charter. There is also EU secondary law in the form of the Citizenship/Free Movement Directive (Directive 2004/38) and the Schengen Borders Code (Regulation 2016/399).
It is apparent that during the oral hearing before the Court, members quizzed the parties before it on the extent of the applicable laid down in the Citizenship/Free Movement Directive that apply in relation to Iceland and Norway as regards the free movement of persons, where it be for residence and/or travel/tourism.
Advocate General Emilou commenced this part of his Opinion by noting that, ‘while…[Iceland and Norway]…are not in the European Union, they are part of the Schengen Area’ (para. 36), and nonetheless that for the purposes at hand, ‘the contested travel restrictions…[of Belgium]…applied, with respect to them, in the same way that they did with respect to the Member States’ (para. 36). He points out further, however, that given the existence of the EEA Agreement, and given that the Citizenship/Free Movement Directive is incorporated into EEA law through the EEA Joint Committee No 158/2007 of 7 December 2007, it is an open question, as a matter of EU law, whether there is a difference between free movement between Member States (in the EU pillar of the EEA), or free movement between EU pillar of the EEA and Iceland and Norway (the EFTA pillar of the EEA).
For Advocate General Emiliou, he states that, ‘it remains to be clarified whether that directive has been integrated in the EEA Agreement only in part, solely in relation to the movement of nationals of the EU Member States and the EFTA States within the European Economic Area (EEA) for the specific purposes of employment and self-employment respectively, or fully, so that it regulates that movement for any purpose, as it does in the European Union’.
He then pointed to a judgment of the EFTA Court, where it had touched upon this matter previously in the Gunnarsson case (Case E-26/13) as regards the EFTA pillar of the EEA, and expressed his view on the concept of substantive homogeneity. For him, and this is the most important part,
‘Evidently, the Court is not bound by the decisions of the EFTA Court. Nonetheless, in my opinion, the general international law principle of respect for contractual commitments (pacta sunt servanda),…the ‘special relationship between the European Union, its Member States and the EFTA States’,…and the necessity to ensure, as far as possible, the uniform application of the EEA Agreement in all Contracting Parties, mean that the Court must take those decisions into account for the purpose of interpreting that agreement….In fact, I would suggest that it should follow them, unless there are compelling reasons not to do so.’ (para. 45).
Noting that he finds the Gunnarsson judgment of the EFTA Court very logical, he went on to state that, ‘[t]he fact that ‘EEA citizenship’ does not exist in EEA law does not warrant narrowing down the material scope of a directive which was incorporated as such in the EEA Agreement. After all, certain provisions of the Citizenship[/Free Movement] Directive are addressed specifically to non-economically active persons’ (para. 46). Thus, for him, rights under the directive apply across the entirity of the EEA, ‘for whatever purpose’ (para. 47).
Whilst there was no discussion in Advocate General Emiliou’s Opinion here in Nordic Info of the Court’s prior judgments in I.N. (Case C-897/19 PPU), or the EFTA Court’s rulings in either Jabbi (Case E-28/15) or Campbell (Case E-4/19), which were all cases dealing with the status of nationals and citizens in different pillars under the EEA where there might have been some scope for a different understanding, Advocate General Emiliou is very much on-mark with this line of established jurisprudence.
The full text of the Opinion of Advocate General Emiliou in Case C-128/22, Nordic Info v Belgium is available here.