Judgment of the Court of 21 March 2024 in Case E-5/23 criminal proceedings against LDL (Directive 2004/38/EC – Acts of general application to protect public health – Conditions and safeguards for measures adopted on public health grounds – Free movement – Fundamental rights and freedom of movement – Legitimate aim – Implementation in a consistent and systematic manner – Proportionality in the strict sense)
Date: 2024-03-21
Institutions: EFTA Court
Subjects: European Economic Area, Norway, border control, coronavirus disease, disease prevention, epidemic, free movement of workers, freedom of movement, health risk, traveller








C_202404617EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2024/4617


18.7.2024







            JUDGMENT OF THE COURT
         
of 21 March 2024
         
in Case E-5/23
criminal proceedings against LDL


(Directive 2004/38/EC – Acts of general application to protect public health – Conditions and safeguards for measures adopted on public health grounds – Free movement – Fundamental rights and freedom of movement – Legitimate aim – Implementation in a consistent and systematic manner – Proportionality in the strict sense)


(C/2024/4617)

In Case E-5/23, criminal proceedings against LDL – REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by the Supreme Court of Norway (Norges Høyesterett), concerning the interpretation of the Agreement on the European Economic Area, in particular Articles 28 and 36 thereof, and Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 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, the Court, composed of Bernd Hammermann, Acting President (Judge-Rapporteur), Michael Reiertsen, and Gunnar Þór Pétursson (ad hoc), Judges, gave judgment on 21 March 2024, the operative part of which is as follows:






1.


A restrictive measure, under circumstances such as those of the main proceedings, is to be examined with regard to the right of residence in Article 7(1)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. Any interpretation of that Directive must be exercised in the light of and in line with fundamental rights and freedoms that form part of the general principles of EEA law.










2.


In circumstances such as those of the main proceedings, neither Article 28 EEA nor Article 36 EEA provides for a more extensive right for an individual such as LDL to enter and reside in an EEA State such as Norway than Directive 2004/38/EC. Due to the applicability of Article 7(1)(a) of Directive 2004/38/EC and the particular circumstances set out in the request there is no need to examine Article 28 EEA separately.










3.


In principle, a measure in dispute is examined only in relation to one of two freedoms if it appears, in the circumstances of the case, that one of them is entirely secondary in relation to the other and may be considered together with it. In the circumstances set out in the request, the right to receive services as a traveller in another EEA State under Article 36 EEA is entirely secondary to the right of free movement of workers.










4.


Restrictions based on grounds of public health may, depending on the circumstances and in particular the health situation, be adopted in the form of an act of general application which applies without distinction to any person in a situation covered by that act, while the conditions and safeguards laid down in Articles 30 and 31 of Directive 2004/38/EC must be applied in the case of restrictive measures adopted in this form.










5.


When considering whether the restrictions at issue are justified it must be verified whether the procedural guarantees in Articles 30 and 31 of Directive 2004/38/EC have been fulfilled.










6.


If there is uncertainty as to the existence or extent of risks to human health, an EEA State must be able to take protective measures, in accordance with the precautionary principle, without having to wait until the reality of those risks becomes fully apparent and, in particular, EEA States must be able to take any measure capable of reducing, as far as possible, a health risk for attaining the objective of protecting public health. Restrictive measures such as those at issue in the main proceedings may be regarded as capable of ensuring the public health objective pursued only if they genuinely reflect a concern to attain it and are implemented in a consistent and systematic manner. The referring court will have to ascertain whether the abovementioned restrictive measures were limited to what was strictly necessary and whether there were means less prejudicial to the free movement of persons but equally effective for achieving the public health objective.










7.


EEA States cannot be denied the possibility of attaining the objective of protecting public health by the introduction of general and simple rules which will be easily understood and applied by individuals and easily managed and supervised by the competent authorities. Such general and simple rules must comply with the general principles of EEA law including the principles of proportionality and legal certainty. In general, an increased financial burden and administrative difficulties do not constitute grounds that can justify a restriction on a fundamental freedom guaranteed by EEA law.










8.


In light of the freedom of movement deterring people from travelling abroad cannot be a legitimate aim in itself, but may be a justifiable means to achieve the public health objective to reduce the total infection pressure in a situation such as that at issue in the main proceedings.










9.


As regards the question of proportionality in the strict sense, the referring court must ascertain whether the measures were disproportionate in relation to the public health objective pursued, having regard to the impact that those measures may have had on free movement and fundamental rights being part of the general principles of EEA law. Hence, the objective of protecting public health referred to in Articles 27(1) and 29(1) of Directive 2004/38/EC may not be pursued by a national measure without having regard to the fact that the national measure must be reconciled with the fundamental rights and principles affected by that measure. In addition, the objective of general interest must be properly balanced against the rights and principles at issue, in order to ensure that the disadvantages caused by that measure are not disproportionate to the aims pursued. Moreover, the question of whether a limitation on free movement and fundamental rights may be justified must be assessed by measuring the seriousness of the interference which such a limitation entails and by verifying that the importance of the objective of general interest pursued by that limitation is proportionate to that seriousness.






ELI: http://data.europa.eu/eli/C/2024/4617/oj
ISSN 1977-091X (electronic edition)