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Table of Contents: I. Introduction: border closures as a source of symbolic capital. – II. Reintroduction and termination of internal border controls. – II.1. Legality of the initial suspension of border-free travel. – II.2. Alternatives to systematic internal border controls. – II.3. Return to normality: intergovernmental cooperation. – II.4. Institutional implications: limited sway of legal supranationalism. – III. “A Europe that protects”: closure of the external Schengen border. – III.1. “Fortress Europe” as an affirmative narrative. – III.2. Individualised assessment and proportionality. – III.3. Exemption of travellers with an “essential function or need”. – IV. Restricting the free movement of Union citizens. – IV.1. The principle of proportionality: between individual cases and abstract considerations. – IV.2. Distinguishing different categories of free movement. – IV.3. Graded approaches towards quarantine and other alternatives. – IV.4. Practical implications of travel restrictions. – IV.5. Coherence of domestic and border restrictions. – V. Conclusion.
Abstract: Initial response to the Covid-19 pandemic capitalised on symbolism of national belonging. Against this background, borders soon took centre stage in the effort to tackle the spread of the virus during the spring of 2020 with Member States enforcing drastic restrictions to inter-state mobility, both at internal and external Schengen borders. As the second wave rolled in, restrictions gained momentum again, even though Member States by and large, did not revert to symbolically relevant border controls and travel bans. This Article revisits the measures taken by the Member States and EU institutions at the internal and external borders of the Schengen area until late-October 2020 and draws lessons regarding the interaction of symbolism, law and politics in times of crisis. It focuses on shifts in the perception of borders and the role of different actors in the closure and the subsequent re-opening thereof. We illustrate that the supranational institutions struggled to support the rule of law without the political support of the Member States, even though the rich case law of the Court of Justice on the internal market provides critical doctrinal arguments that can be employed in times of crises.
Keywords: Covid-19 – Schengen – internal border controls – free movement – fortress Europe – border closure.
European Papers, Vol. 5, 2020, No 3, pp. 1143-1170
ISSN 2499-8249 - doi: 10.15166/2499-8249/420
* Professor of Public, European and International Law, Co-Director of the Research Centre Immigration & Asylum Law, University of Konstanz, firstname.lastname@example.org.
** Research Assistant, University of Konstanz, email@example.com.