Chapτer Ι-1

Horv the Pandemic Led το Wide-Scale Threats

to Fundamental Rights ßη τhe Ευ:
αη Overvierv

Anjum Shabbir

1. Introduction

Public health and other measures taken to fighτ τhe COVID-19 pandemic ατ τhe Member
State and Ευ levels, such as wide-scale and far-ranging resτricτions οη mονεmεητ, different
kinds and durations of states of emergenεy, contact τταcßηg and daτa collecτion policies, and the
halting and suspending of asylum and immigraτion procedures, have mεαητ fundamental rights
and values protected ßη the Ευ have been cuπailed, both intentionally and incidentally.1
Α vast
array of national, European, and international law instruments are relevant ßη
delineating the fundamenιal rights standards αgαßηsτ which such measures should be assessed,
but ßη this Chapter the Charter of Fundamental Righτs of τhe European υηßοη is singled out as
the primary fundamental rights instrument, as direcτed by τhe Ευ Treaτies (ΑττßcΙε 6(1) ΤΕυ)
(section 2). The arduous process of litigating ροτεητßαΙ breaches of fundamenτal rights protected
under the Charter, already crawling through courts αΙΙ over τhε Ευ, will continue for years to
come, characterised by complexities recalled ßη this Chapτer, and α need for α case-by-case
approach ßη assessing whether they are justif,ed (section 3).
The roles of the Court of Justice of the European υηßοη and that of the European
Commission as 'Guardian of the Treaties' are of course crucial ßη the enforcement and judicial
assessment of such rights (section 4), but this Chapter will also provide insight into the overall

ΙBesides ιhose intentionally imposed measures, unintended phenomena (noτ considered ßη τhis overview) have also
emerged, such as impediments tο acCeSS tο justice (See Part νΙΙ of τhßS book οη Jusτice and Lßτßgατßοη), pandemic-
related dislnformation (see Chapter 16 of this book by ΕηΖα Cirone), and racism and discrimination (as α starting polnt
see Fundamental Rights Agency, 'Coronavirus Pandemic ßη ιhe Ευ: Fundamenτal Righτs Implicaτions', Bulleýn Νο.
1, Apri] 2020).
 Ραττ ΙI. DEMoCRACYAND RIGHTS Ηο\τ'Τ¹Ξ ß

weakness of the Ευ
Institutions ßη τackling the inevitable consequences - including from α Article 8 ΕCΗ:1.
policy and legislative perspective τhατ prioriτises other policy areas (section 5) - ßη protecting esιablishner-:. .,,
core values of τhe Ευ (Arτicle 2 TEIJ). and 2.1 of ιße ß _"
cατe and αιßε:,__: :
2. COVID-lθ Measures thaτ ΡοτεητßαΙΙγ Breach Ευ Human Rights and Values or prison ßη:-.:..
againsι ρΓο:ε _:.:
2.Ι. Restrictions οη movement

Member States have αΙΙ imposed far-reaching limitations οη movement to the extent of
2,2, Sιates :: .:
obligatory confinement to one's home, or the even more restrictive 'self-isolation', through
Some - :*::
national 'containment' measures, Travel iS το Varying degrees prohibited within α Member State,
States did ß:τ:,-:.
to other Member States, and from τhird counτries - by closing local, national and Ευ borders.2
the panderιic : -::
Closure of the internal borders was condemned by the European Parliament,3 but the European
as those discι_ss.,:
Commission iτself, ßη parallel wiτh τhε Member Sτaτes, adopted α series of Communications,
values - αηß::-:
which essentially closed the EU's exiernal borders and issued Guidance οη arrangements ßο
ρατΙßαmεηιαπ, :ß.
repatriate Ευ ciiizens.a That was followed by regularly reviewed Council Recommendations ßη
11 of the Cha::::
the latier part of 2020 οη the coordinaτed lifτing or maintaining of travel restrictions.S
12 of the Cha::.:
Freedom of movemenτ is compleτely curbed by τhis, with some overlap with the right to
(Article 17 οß :ε
liberty and security (Articles 45 and 6 of τhe Charier - and this is of course α core fundamental
Parιiculal :,:
freedom protected under primary law, Arτicle 20 TFEU6). Not being able to access public
and possible α:_:
spaces or hold gatherings also means the freedom of assembly and association, anü freedoη.of
Commission i:as
thought, conscience and religion can ηοt be exercised (Articles 12 and Ι0 of the Charιer). The
the contexι of s:",
stΓictest lockdown measures prohibiτ family members ßη different households from visiting
each other, preventing enjoymenτ of τhε right to respect for private and family life (Article
7 of the Charter). More controversially, that right is impacted by those who are even banned 7
European ,\sr,, _:: ,--
2020, ρρ :_9. ::::-
from attending the funeral of family members, and conflning individuals to the household
α large numbel :: l.|
also diminishes the proiection of domestic violence victims (α positive obligation under available αι <:::::
EN.pdf >: αηß ]:-, :
Such measureò ιη.:.
2Most recently ßη February 2021, Germany closed paπs of its border with Austria and the Czech Republic, and rising cases οß ß,'. -

measures closing borders had been reimposed by Denmark, Finland and Hungary towards the end of 2020. See the
8See Chapτeι ßΙ :: ,-

EU's official migration and home affairs rvebsiτe οη τεmροτατγ reintroduction of border controls for the latest updates, Thielbürger α:. ].l:_-

availableat < https://ec.europa.eu/home-affairs/whaτ-we-do/policies/borders-and-visas/schengen/reintroduction- α pretexΙ Ιο C_:: :_ ι

border-control_en >. national meas*,-.r:

available α: ,. :=
3
See this update brlefing of ýe European Parliamenτ daτed April 2020, available at < https://wrvw.europarl,europa.eý
RegData'/etudes/BRIE/2020/649347/EPRS_BRI(2020)649347_EN,pdf >. 19dOOcOd2>eaΞ :-: -
α
Commission Communicaτion of 16 Ματòh 2020 'COVID-19: Temporary Restriction οη Non-Essential Travei to the
refeπer=ema-__, -]'
Ευ', COM(2020) 115 final. This 30-day restriction was further exιended: see also Commission Communication of
9
For αη exam:c:,_, - :
8 April ¶ssessment of the application of ýe τemporaτy restriction οη non-essenθa] ιravel to the Ευ', COM(2020)
Αγαlα Corao. ,C,-..-:
148 final, and Commission Communicaýon of 8 Μαγ 2020 'Second assessment of ýe appllcation of the temporary Μαχ Planck Ins:,_:.
ιOEvidenτ earll,-: :::
restricion οη non-essentia] travel to the Ευ', COM(2020) 222 flna].
5The most recent is Council Recommendaýon (Ευ) 2021/132 of 2 February 2021 amending Recommendatlon (Ευ) Leyen οη εma:<: :-

2020Ι9Ι2 οη the temporary restriction οη non-essential travel ßηtο the Ευ and the possible lifing of such restriciion Emergenc1,'. \.- -.-_, _ι,,.

powers fτοτò -_-.: :,::,

IOJ L 41, 4.2.2021, ρ. 1].
6
For αη assessment of the impact of restrictions ßη the internal mατΚεt context, see Chapters 26 and 27 of this book by
of Cουηιη, Rε:,::
Daniel Thym and Jürg Gerkτath.
11Council of Ε-:::ε ',
 HOW ΤΗΕ PANDEMIC LED ΤΟ \YIDE-SCALE THREATS ΤΟ FUNDAMENTAL RIGHTS ΙΝ ΤΗΕ Ευ

Arτicle Β ECHR, which Arτicle 7 of the Chaπer corresponds). The closure of educational
το
ding from α

Π protecting
esιablishmenτs also has αη impact οη the right to education and rights of the child (Articles 14
and 24 of τhe Charτer), and it has already been shown that some governments ραγ insufficient
care and αττeητßοη το migranτs, the elderly, the disabled, the homeless, the Roma community,
lcs or prison inmaτes, το ρτοτεCτ τhεm from COVID-19 transmission, ßη apparent discrimination
againsτ proτecτed caτegories (Arτicle 21 of τhe Charτer and Arτicle 1Β TFEU).

2.2, States of emergency

þe exτent of
m'. ýrough Some - bυτ ηοτ αΙΙ (ουτ of choice or due to impossibility ßη their legal traditions) - Member
Ιριτιbeτ State,
Sτaτes did impose, or conτinue to impose, varying types of emergency measures ßη response to
Ευ borders.2
τhe pandemic ouτbreak, which allow legally-prescribed derogations to be made from rights such
he European
as τhose discussed ßη τhis Chapτer.7 States of emergency also extend these rights to democratic
municaιions,
values - αη ßmροτταητ elemenτ of the rule of law, given ßη some cases the resulting lack of
τgements tO
parliamenτary oversighτ, τhe suppression of freedom of expression and information (Article
nendaιions ßη
11 of τhe Charτer), and as menιioned above, the freedom of assembly and association (AΓticle
E-j
12 of τhe Charτer),s Sτaτes of emergency are even considered as impacting the right to property
h ýε righτ το
(Arτicle 17 of τhe Charter) due to τhe requisitioning of goods.g
fundamental parτicular concern emerges over the nature, legal basis, scope, duration, proportionality,
rcess public and possible abuse of such powers,1o and considering, as the Council of Europe's Venice
dfτeedor_rι"of
Commission has poinτed ουτ, τhατ 'the gravest violations of human rights tend to occur ßη
Chaπer). The
τhe òοητeχτ of òτατeò of emergency'.11 Worth stating as αη example is the Hungarian 'state of
from visiting
ι life (Arτicle
even banned 7
European Asylum and Supporτ Office, 'COVID-19 emergency measures ßη asylum and reception systems', 2 June
2020, ρρ. 7-9, offering α τimeline and explanation of rεhen such measures rgere first imposed and then lifted by
b household α ιarge number of Member òτατeò between Februaτy and Μαγ 2020; European Parliament Briefing of June 2020,
gation under avaiiable ατ < hττps://ιvww.europarl.europa.eu/RegData/etudes/BRIE/2020/64θ408/EPRS_BRI(2020)64θ4O8_
EN,pdf >; and Daniel Sarmienτo, Ευ law ßη extraordinary times, EULaw Ιive, 18 March 2020. Ιη late December
such measures were reimposed ßη France, Czechia, and Slovakia after being initially lifted, due to the number of
rising cases of COVID-19.
Ι Republic, and sSee Chapτeτ 12 of τhis book by David Krappitz and Niels Kirst. See a]so this study by Law Professors Pierre
d 2Ο20. See the
h Ιαιεsι updaτes, Thieιbürger and Mark Dawson which poinτs out that Some governments have been using the COVID-].9 crisis as
τnrεin:roduction- υ ρ..τ.rßτο curb fundamenτal rights and limit parliamentary control: ¸υ Law 1η the "First Wave": The legality of
naτionai measures το ταòκΙe τhe COVID-19 crisis', commissioned by ýe European Parliament's GreensEFApaΠy,
avai]able ατ < hτφ://exτraneτ.greens-efa-service.eu/public/media/file/1/6697?link_id=2&can_id=24c37B23c1175f
mparl.europa.eu/
19dOOcOd25ea597579&source=email-new-study-shows-breaches-of-rule-oflaw-during-first-covid-wave&email_
>.
τeferrer=email_1015705&email_Subject=new-Study-shows-breaches-of-rule-oflaw-during-fiτst-covid-wave
ιßαΙ Travel to the 9For αη examinaιion of τhe impact οη democracy from α wider European and international perspective, see Carlos
mmunication of
Αγαια Corao, .Challenges τhατ ιhe COVID-19 Pandemic poses to the rule of 1αιν, democracy and human rights', the
Ζ,. CoM(2020)
Μαχ Planck Institute (MPIL) Research Paper SeIieS Νο, 2020-23.
d þε τemporary 10Evidenτ early οη from τhe perspecτive of τhe European Commission through this 'Statement by President νοη der
Leyen οη eme1gency measures ßη Member States', press release of 31 March 2020. See Joelle Grogan, 'States of
rendaιion (Ευ)
Emergency,, νòτfαòòυηgòbΙοg, 26 Μαγ 2020. For α list of comparative country repoΠs examining the use of emergency
J grch restriction
powers from τhe perspecτive of democracy, human rights, and the rule of law, see Joelle Grogan, ºntroduction & List
of Country Reports' Verfassungsblog, 6 April 2020.
ΙΙ οf ,λis book by 11
Council of Europe, Venice Commission, Emergency Powers - Science and technlque of democracy Νο. 12 (1θθ5).
 Part ΙΙ. DEMoCRACYAND RIGHTS Ηο\ß,τΗΕ

danger'which has ηο end date (also the case ßη Greece, Poland, the Netherlands, and Slovenia), for consenι ιο :,
and which criminalises disinformation from nervs organisations οη ραßη of 5-10 years of possibilitν of ι, _

imprisonment - leading to α chilling effect οη the freedoms of the press. It has been described
as giving 'αΙmοsτ unlimited legislative power' to the Hungarian Government that 'has since 2.4. ΗαΙτßηò. -
been used το suspend the operation of the GDPR and defavour opposition parties' - outcomes
Measures ,.,
which 'have ηο plausible connection with COVID-19'.
crossing ßηιο :ß
2.3. Contact tracing policies and collection of health, travel and location daia asylum seekers
applications cr
Supporτed by coordinating Ευ actions, Member States - and private companies12 - notiflcation. c,γ
considered or implemented national policies of tracing individualsl3 who had been ßη touch Regulation αΙο:,
wiτh anyone who has tested positive for CΟνΙD-lθ. This requires large-scale collection, return pΓoCedL:ε
sτorage, processing and sharing of information about sensitive data such as one's health This òΙαsß:ε:
(such as sympτom-reporting), real-time locaiions, and residence, ßη order to prevent the virus Article 7Β(1) ΤF
spreading furτher, through traditional methods, but also the novel method of αη application οη law rights und.
α smarτphone ('contact tracing'), as well as through drone surveillance and thermal imaging. Regulation.]: Ιß ,

This has αη impact οη data privacy and protection rightsla as enshrined under Articles 7 and healthcare"
and Β of the Charter, and to which express reference is made ßη Ευ secondary law such as the Also callec
General Data Protection Regulation (GDPR)IS (flanked by strong principles set ουt ßη the case Or extradiliΟn ι,]
Ιαιν of the Court of Justice), and the e-Privacy Directive.16 to α situation ò:
The εχτεηt of protection as provided for by the GDPR and related case law thai may be Code,2t accorιii:
affecτed by such data collection and processing policies vis-λ-vis public health objectives is international ρ:ι
worτh ουτΙßηßηg here, as it sets out principles such as data minimisation (the exact inverse of 15(α) of the Re:.
whατ α cοηταct tracing policy aims αt), transparency, accountability and confidentiality (Article removal, and *ε
5 GDPR), as well as security (Article 32 GDPR), The relevant GDPR rights are the righτ το
informaτion about data processing (Article 13 GDPR), the right to access that information 3. Justified R
(Arτicle 15 GDPR), the right to have that data erased (Article 17 GDPR), the requirement
The Chατε:
Treaties (Anic_e
Council of Europe ο.ουrυ., υ gooa ου;rv,.. of ιhe specific apps ιhat have been rolled ουι ßη each Ευ Member
ýer .
12The
whenever
Sτατε, as well as other countries, and their lnstall rates οη its webslte, available at: < hιιps://www.coe.τnt/en/web/data-
proιecτion/contacι-ιracing-apps >. See also the FRAs report'Coronavirus pandemic ßη the Ευ - Fundamental rights
17See Chapιer _Ξ _::
implications: With α focus οη contact-tracing apps', 28 Μαγ 2020, ρρ. 4Β-51.
13
Considered ßη more detail ßη Chapter 15 of this book by Oreste Pollicino and Giovannl De Gregorio.
18
Directive 20, :- : -
granting and ιε, _,ι:
1α
Ιη Chapιer 14 of τhis book, CfuiStina Etteldorf points out that individuals 'may be obiiged to accept encroachments οη
19Directive 201j jj.
τheir privacy or to actively disclose something if this serves α legally protected interest, which must be given priority
ßη individual cases, such as public health'through the mass collection, storage and usage of data. reception of α::_ ,
r5Regulaτion (Ευ) 2016/679 of the European Parliament and of the Council of 27 April 2016 οη the protection of '0Regulaτion 1Ξ,- ',
ηατυταΙ persons with regard to the processing of personal data and οη the free movement of such data, and repealing criieria and me:-;:
Direcτlve 95/46/EC IOJ L 119, 4.5.2016, ρ. 1]. At the Council of Europe-level, see also the Convention for the protecιion loc::: ,
Ρτοτεòιßοη of Individuals with regard to Automaiic Processing of Personal Data (CETS Νο. 108). See also Elif ρ, 31].
Mendos Kuskonmaz and Elspeth Guild, 'COVID-Iθ: Α New Struggie over Privacy, Data Protection and Human '1 Regulatlon l E, - .

Rights?'European Blog,4 Μαγ 2020.

Laι,V rules goverπ:= :ε
16Directive 2002/58/EC of ýe European Parliament and of the Councll of 12 July 2002 concerning the processing of "ljrrecoνe 2υ, :,,_:
personal dατα and the protecιion of privacy ßη the electronlc communications secιor [OJ L 201, 31.7.2002, ρ. 37]. and proced.r- _,-
r.
 ΗΟ\.γ ΤΗΕ PANDEMIC LED ΤΟ WIDE-SCALE THREATS ΤΟ FUNDAMENTAL RIGHTS ΙΝ ΤΗΕ Ευ

nd Slovenia), for coηsent ßο be obtained for processing το be lawful (Arτicle 6(1)(α) and 7 GDPR), and τhε
.l0 },ears of possibility of wiτhdrawing consent (Article 7(3) GDPR).
:en described
laι'has Since 2,4, Halting and suspending of asylum and other procedures
§'- outcomes
Measures were or have been taken by Member Sτατεs το prevenτ τhird òουηττ ηατßοηαΙs
Crossing into their territory as α COVID-19 relaτed measure, some pushing back boaτs wiτh
asYlum Seekers onboard or declaring their ports 'unsafe'. Some sτopped accepτing asylum
aPPlications or suspended their processing, including by closing faciliτies ιviτhout prior
ompanies12 - notif,Cation, discontinuing personal interviews, suspending τransfers under the Dublin ΙΙΙ
nen ßη touch Regulation along with the validity of residence permiτs, family τευηßficατßοη procedures, and
h collection, returrι procedures.17
one's health This clashes with the principle of non-refoulemenτ provided for ßη Ευ primary law under
γmτ ιhe ViruS AΓticle 78(1) TFEU, the right to asylum (Article 1Β of τhe Charτer) and relaτed Ευ secondary
ρρΙßòαιßοη οη law rights under the Asylum Procedures Direcτive,ls Recepτion Direcτive,1g and Dublin ΙΙΙ
ηΙ imaging. Regulation.20 It also puts those individuals at α higher risk of infecτion wßτh limiτed faciliτies
der _\rιicles 7 and healthcare.
w such as the Also called into question was the right to protection ßη τhe ενεητ of removal, expulsion
rrt ßη ýe case or extradition (Article 1θ of the Charter) which requires that ηο person should be reτurned
to α siiuation of persecution or serious harm, and Arτicles 3 and 4 of τhe Schengen Borders
τ ιhατ may be Code,21 according to which border control auτhoriτies mυòτ respecτ τhe righτs of refugees and
ι objectives is international protection obligations. There is also τhε quesτion of compliance wiτh Arτicle
act inverse of 15(α) of the Return Directive,22 where detention ceases to be justifled if τhere is ηο prospecτ of
ialiπ,(Article removal, and the person concerned must be released immediately.
ιe τhe righτ το
t information 3. Justified Restrictions of Human Rights ßη αη Emergency
ι requirement
The ChaΠer is the primary fundamental rights insτrumenτ το consider as direcτed by τhε Ευ
TreaΙies (Article 6(1) ΤΕυ), with which national actions and measures must be ßη compliance
gh Ευ Member
rvhenever they are adopted ßη implementaιion of Ευ Ιαη as well as ýe general principles of
ι ßπ en rveb/data-
τdαmεηιαΙ rights
17
See Chapter 13 of this book by Silvia Barto]ini for α ιhorough analysis of ýε issues τhατ arise ßη τhis field.
18Directive 2013/32lΕυ
D, of the European Parliament and of the Council of 26 June 2013 οη common procedures for
Eoachments οη granting and withdrawing inτernational protection [oJ L 1Β0, 29.6.2013, ρ. 60].
ι bε gven priority
19
Directive 2013/33/Ευ of the European Parliament and of the Council of 26 June 2013 laying down sτandards for the
recepιlon of appiicants for inιernational plotection (recast) [OJ L 1S0, 29.6.2013, ρ. 96].
' proιecýon of 20Regulaýon (Ευ) Νο 604/2013 of the European
ParLiamenι and of τhe Council of 26 June 2013 establishing the
criteria and mechanisms for determining the Member State responsible for examining αη applicaτion fol ßητετηαtßοηα1
-- ald repealing
πιτηιßοη for the Protectlon lodged ßη one of the Member States by α third-country ηατßοηαΙ or α sτaιeless person [OJ L 1S0, 29.6.2013,
3} See also Ellf ρ. 31].
αßοη and Human 21
Regulation (Ευ) 2016/3θθ of the European Parliament and of τhe Council of 9 March 2016 οη α υηßοη Code οη τhε
rules governing the movement ofpersons across borders (Schengen Borders Code) |oJL77,23.3.2016,
ρ. 1].
fu òτ6òρ55ßη9 ο1 22Directive 2008/115/EC
of the European Parliament and of the Council of 16 December 2008 οη common sτandards
7_Η2. ρ. 37]. and procedures ßη Member States for reιurning illegally staying τhird-counτry ηαιßοηαΙò [oJ L 348, 24.12.200s,
ρ. 9s].
 Ηο\τ'τΗΕ Ρ
Part ΙΙ. DEMoCRACYAND RIGHTS

condiιions ιc :_:
Ευ law ρτοτecτßηg fundamenτal righτs
(Aπicle 6(3) ΤΕυ). ΙητeτηατßοηαΙ ΙαΙν, as acknowledged
the Charter, as for
Aπicle 15 'ßß --:_.
ßη the Ιηττοdυòτßοη το ýis Chapτer, remains relevanτ despite τhis honing ßη οη
under τhe European
example α non-negligible number of τhe 50 Chaιler righτs correspond το righτs 4. Litigaτion ιι
Cοηνeητßοη οη Human Righτs (ECHR) ßη meaning and scope (such as
Aπicles 2, 4,6,7,10, IL,
13, 17, 19, 20,2I,23,48,and 49), or have been given α mοΓe extensive
meaning and scope by the Judicia. =;s,i
(ΑΓτßcΙeò 8,9,72,14, 47 and 50),
case law of τhe Cουττ of Jusice of τhe European υηßοη (CJEU) υηΙαινfυΙ bre":-.,
relaτed interferences
The first signif,canτ ροßητ το ηοτe when considering wheτher COVID-19 CJEU case l.,,ο -_,

limitations to many
with Charter righτs are laivful is τhατ τhe Ιαττeτ are noτ αΙΙ absolute ßη nature: be piecemea^ ...:
of τhem are legally permissible. Alτhough ßτ iS ηοτ expressly òeτ ουτ which righτs are absoluτe,
ηαtßοηαß leι,e_. ß,.,
it can be gιeaned from the Charter,s Expιanatory Memorandum and ECtHR case ιαw that the lag for cdsθs ßι,_-,Ý
been meητßοηed ßη τhe
ιisτ incιudes Arτicιes Ι, 4, 5,10, 48, 49 and 50 none of ιvhich have
_
references ιο ::_=
,ιßmßtαtßοη, of the Charter rights
Chaπer rights referred to ßη this Chapter. Αηγ restriction or rulings (Αηßò_τ -,
be justifled, They
highιighted herein as being impacted by CoVID_19 measures must therefore Arιy Ιlιßgα:_: :

mυòτ (ß) respecτ τhe 'essence of τhe righτ' as òeτ ουτ ßη CJEU case law,23
They must also (ßß) under Ευ Ιαl.,',.-__
of general
be ,provided for by ιαw, _ ηαmeιγ be expressed ßη α measure, (ßßß) 'meeτ objecτives characterised :,.,:
ßητeτeòτ recognised by τhe υηßοη or τhe need το ρτοτeCτ τhe righτs and
freedoms of oτhers' - τhατ
level - raýer :α:,
(ßν) 'be necessary'
is, have α legiτimaτe aim, which includes τhe grounds of public health, and lockdolpn ßη \1*:
to achieve τhαt Ιegßτßmατe aim, Whaτ is likely of most contention ßη assessment against the
το be and Germanv α: _

comply wiτh τhe

background of τhe pandemic will be (ν), τhe requiremenτ τhατ such measures overvrhelmed :,,
is necessary to
'principle of ρτοροττßοηαΙßτγ' _ meaning τhaτ ßτ should ηοτ go furτher than what rapidly througil .:s

achieve τhατ aim and be revielped cοητßηυουsΙγ, further to its Article 52(1),'4 SΠaightforΙvard
respΟnse, bυι :α,.
of danger'
examples τhατ one can imagine here are τhe proporτionaliτy of αη ßηdòfiηßτò'òτατe Second. τ"ι
poιicies ßη meeting the aim of
ßη pιace ßη Hungary, and the proven efflcacy of contact tracing law measure ο: :
movement of persons
protecting public healτh - bυτ τhe eχτeητ το which it is justified to restrict measures ttιaι :..,,
spread of α virus when hospiτals are overburdened requires α closer
examinaiion,
to prevent the weekly - ßη res:,.
And ιast but not ιeast, (νß) the measures must ηοt be discriminatory. specific. Οη ιò: :
υΙτßmατeΙγ, τhe inieresτ ßη fulf,lling τhe Ιegßτßmατe aim - το ρτοτeCτ
public healτh, iτSelf α law measures α:.:
fundamentaι righi protected under Articιe 35 of the Charter
_ must be baιanced with interference

wiτh fundamenτal righτs,2S 26

Estonia, La:r ," l ,:
paSS τhe qualifled (οηΙγρατιßα,,ι :ι _,,
As flnal ηοτe, τhose righτs lisτed aS Colresponding το τhe ECHR mυòτ also
α
(Arτicle 52(3)), or meeτ τhe requisiτe (allowing de:::, : -
righτS-τesτS under τhe ECHR and ECτHR CaSe Ια\ν siandards prescribed bι ,",,. :
ßη times of t. :,ι :ι
οη Human ΤΞ-,τ -

23ορßηßοη of τhe Couπ of Jusτice οη,l. a.ur, agreemenτ beτween Canada and τhe European υηßοη οη Transfer of 3, 12 Juir, 2ßι],
(1/15, EU:C:2017:592), ραΙα, 151, See Koen
Passenger Name Record data from the European υηßοη to Canada 27The process :":, : -,
,Limits Rights ßη the Ευ, 20 German Lαιη Journal, 2019,
Lenaerts, οη Limitations: The Essence of Fundamental exhausted - ßßß, :,
ρρ.779-793. however in:e::.-_-:
2aJudgmenτ of τhe Courτ of Jusτice, SιΕ üsτerreich (C-2B3/11, EU:C:2013:2B), para. 50; Judgment of the Court of Bioethics Co::_:: ::
Justice, DigitaI R ights lreland and oτhers (C-594/12, EU:C:2014:23B), 28Τη Chapιer ß-: _; ,-,
25
See ßη ρατιßòυιατ Chrisτina Eττeιdorf,s aSSeSSmenτ ßη Chapτer 14 of this
book pointing out the need for α balancing protection 1αι*- ::-_,
inτerpretation ßη αηγ related disputes, must Carry
exercise τhaτ legislaτors, αυτhοτßτßeò appiying measures, and courτ
privacy ßη the 'relaývely young area'
29
See Dolores ,: ..
of
ουτ ßη weighing inτeresτs and reconciling iealτh proτecτion with ιhe proteCtion
Weekend Ec:: :, ',
,

and e_privacy Direcτive,

of daτa prüτecτion law, òρeòßfiòαιιγΑιτßòιe Β of τhe Charτer, τhe GDpR,

130
 Ηο\,γ ΤΗΕ PANDEMIC LED Το \,γIDE-SCALE THREATS Το FUNDAMENTAL RIGHTS ΙΝ ΤΗΕ Ευ

dσιoιτledged conditions to qualify for derogations that are possible fuπher το αη applicaiion made under ßτò
Cbaner, as for ArΙicle 15 'ßη time of war or other public emergency threaτening τhe life of τhe ηατßοη'.26
ιιbe European
ß,6. :, 10, 11,
4. Litigation to Enforce Human Rights Breaches
d scope by the
Judicial assessment of whether COVID-Iθ measures αmουητ το lawful resτriciions or
,4,4] and 50).
unlalvful breaches ßη application of the test laid out ßη ΑττßcΙε 52 of τhe Charτer and reιaτed
Ι inιerferences
CJEU case Ιαιν is α signiflcant iask for ηαtßοηαΙ judiciaries and τhe CJEU το carry ουτ, ιτ will
iions tο many
be piecemeal and revealed over time - the time lag owing το cases flrsτ being Ιßτßgατed ατ τhe
ß are absolute,
national level, with national courts examining compliance with τhε Charτer, and αη εχττα τßme
ρ Ιατò τhαt the
lag for cases where it is unclear what the interpretation of Ευ law and τhε Charτer is, making
rioned 1η the
references to the Court of Justice necessary to obtain clarif,caτion ßη τhe form of preliminary
Chaπer rights
ruιings (Articιe 267 TFEU).r?
]usτýed. They
Αηγ litigation will also be characterised by the following complexiτies: Firsτ, τhe red lines
musτ aiso (ßß)
under Ευ law will be very speciflc to the facts, circumstances and law of α each Member òτατe,
ves of general
characterised by the relevant policies and measures that were and are inτroduced αß τhe ηαßßοηαι
f oτhers' - that
level - rather rapidly - ßη response to urgent circumstances. For example, Spain's far-reaching
'be necessary'
lockdown ßη March conflned residents to their homes with minimal excepτions, whereas Sweden
εητ against the
and Germany applied less restriciive measures - but the former has been comparaτively more
mpll,ιvith the
overvrhelmed by the number of cases of COVID-Iθ and related deaτhs τhaτ were spreading
§ necessary to
rapidly through its territory.28Any Court of Justice ruling therefore would have το provide α usefuι
raighιforvrard
response, but may also be more abstract ßη order to be useful to αΙΙ Member States.
aie of danger'
Second, the actual offending measure - which can be α ηατßοηαΙ law measure or αη Ευ
ing τhε aim of
law measure or both - may be hard to single out, untangle or idenτify from α combinaτion of
:ηι of persons
measures that have been applied - and temporally as measures have changed òοηòταητΙγ - even
r examination.
weekly - ßη response to varying pandemic-threat levels that could be described as cουηττγ-
sPeciflc. Οη top of that, many of those measures have taken the form of policy measures, sofτ
hαtý, itself α
law measures and recommendations.2g
þ inτerference

";;;;;r;, Romanla applied for and obtained ECIHR derogatlons, which were wiτhdrawn ßη Μαγ 2020
εs the qualified ',"*r",by""Ο
(οηlγ ραηßαlΙγ Latvia). Note that the legitimate aim of plotection of healτh can be found ßη Arτicle 5(1)(e) ECHR
rτ ýe requisite (allowing detention to proιect against αη infectious disease) and Arιides Β το 11 ECHR, and limiτaτions musτ be
pτescribed by law, be necessaly to achieve that aim, and propoπionate to thατ aim. Το read more αbουτ derogaτions
ßη times of the pandemic from the ECHR perspective, see ΑΙlαη Greene, 'Derogaτing from τhe European Convenτion
οη Human Rights ßη response tο the Coronavirus Pandemic: if not ηοη when?'European liuman Righτs Law Ròνßòγ,ι
ßη οη Transfer of
3, 12 July 2020.
η_ l51. See Koen
27The process can however
r Journal, 2019, be seen as swifter than that under the ECIHR, for rvhich domesτic remedies musτ firsτ be
exhausΙed - new attention to the possibility to request αη advisory ορßηßοη from τhατ òουττ under ΡτοτοòοΙ ηο. 16 is
holvever interesting to consider ßη ýat regard). See Dolores Utrilla, ¸CτHR's advisory iurisdicτion οη τhe move:
ι οf ýe Court of
Bioethics Committee requests first-ever advisory opinion'EUlaw LΙνò,26 June 2020.
28
Ιη Chapter 14 of this book, Chrisýna Etteldorf points this out ßη respect of fundamental righτs proτecτed under dατα
ιd for α balancing
protection Ιαη noting it iS detrimental to the consistent applicaýon of Ευ law.
ξΙτιeS, must carry 29See Dolores Utrilla,
ιßιτßν r,oung area' 'Governing α Pandemic through Soft Law: Challenges for Judicial Review', 2ι EtJ Law Lßγò
Weekend Edition, 13 June 2020, for more οη the challenges ýat the choice of sofτ law pandemic measures raises.
 Part ΙΙ, DEMoCRACYAND RIGHTS
How ΤΗΕ ι

Third, αη additional hurdle has to be overcome for Charτer rights to be invoked ßη τhe flrsτ was reporΙed ι:"'
place, relating to the restriction of the Charter's scope to measures falling wiτhin τhe fleld of by spending 3Ξ
application of Ευ law (Article 51(1) of the Charter), and the need for τhεm το be invoked hand COVID-19 re,a:.
ßη hand with provisions of Ευ law, or less clearly, 'the scope of Ευ law'.30 These could for for those thαι '::
example be provisions under the above mentioned Citizens'Directive, Schengen Borders Code, be considered :_
GDPR, e-Privacy Directive and Asylum and Migration Directives, Vicτims Direcτive, Αητß- over time' ßη ,ß-
Trafflcking Directive and so οη. Or, where there is ηο such specific Ευ provision, bυτ τhe scope from αη interna, :
of Ευ law could be engaged: the closure of educational establishmenτs impacτing τhe righτ το politicisaτion c: -_

education and rights of the child is α fleld reserved tο the Member Sτaτes'compeτence, bυτ could like α politlcaΙ ::.
be important under Ευ law from the perspective of non-discrimination. This remains unclear, to other crises s-:
Whilst derogation from the fundamental freedoms is deemed 'application of Ευ law', τhe scope Indeed. ιhε _

of application of the Chaπer with respect to national measures that implemenτ or αρρΙγ Ευ Ιαιν CΟmmencemeΓ: -
is τhe subject of long-standing discussion.31 Sent to Ηυηgαπ ,-
FßηαΙΙγ, there is already academic discussion of the long-term consequences of òeττßηg new asylum ρß,::,
'emergency case law precedent': namely the dangers of judgments delivered examining τhe coronavirus ρα::,
breach of fundamental rights during the COVID-19 crisis, for example that 'òοηταßη òτατεmeητò interpreted ßη ,_=:
of purported principle which are confused and confusing and, if lefτ unqualifled, represenτ the fifth τßme ß: :.
dangerous precedents ßη terms of rights protection'.32 Finallr,. ρα:-_
parallel to the route of preliminary rulings, the European Commission, under iτs mandaτe
Ιη Krappitz and \_:
as 'Guardian of the Treaties' (Article 17(1) TFEU), enjoys l,vide discreτion το commence could utiiise ß-*. ,

infringement proceedings underArticle 258 ΤFΕυ and Arτicle 260 TFEIJ againsτ Member òτατeò breaches of dε::,
for breach of Ευ law - including of course human rights protected under τhe Charτer. Iη March emergencr. siτ*.:
2020, the Commission stated that it would be monitoring the sßtυατßοη ßη τerms of compliance
with proportionality and necessity ßη line wiτh fundamenτal righτs.33 Ιτ was even ßηνßτεd το do 5. The EL's Lτ
so by α Joint Statement signed by 1θ Member States ßη April, who themselves were alarmed
by the 'risk of violations of the principles of rule of Ιαιν, democracy and fundamenτal righτs' Respecι α,,: :

through emergency measures, and called for them to 'be limited το whai is sτricτly necessary not οηΙγ froτ ,__=

... proportionate and temporary ßη nature, subject to regular scruτiny...',3aLaτer ßη July 2020 ßτ response hΟr. ε",,":
binding - Γneas_,-:
30Judgment of the Court of Justice, Akerberg Fransson (C-617110, EU:C:2013:105).
much to dO ,,υ,_:-
31
Explore this fuπher by reading Xavier Groussot, Laurent Pech and_Gunnar Thor Petursson, 'The scope of αρρlßòατßοη
of fundamental rights οη Member States' action: ßη search of cerτainty ßη Ευ Adjudicaτion'Eric Sτein Working Ραρòτ obvious e\ce:_,,-
ηο. 1/2011; and 'Mapping the Scope of Ευ FundamentaΙ Rlghιs: ATypology' by Benedikτ Pirkòr,3 Ευτορòαη Ραρòτò human righι..__-
1,2018, ρρ. 133-156.
Institutions h"s :=
32
Ιη the context of υΚ judges examining the bτeach of Arιicles 3, 5 and 8 ECHR concerning ιulnerable individuals, and
through the prism of the Human Rights Act 200Β: Stephanie Palmer and Stevie Martin, 'Public Healτh Emergencies
and Ηυmαη Rights: Problematic Jurisprudence arising from the COVID-19 pandemic', 5 Ευτορòαη Human Righιs -" Vrnce Lhαdιι :. : ,

Low Revieιv,2020, ρρ. 488-49Β. through αη ο: :. ,_r,

33European Commission, 'Statement by President νοη der Leyen οη emergency measures ßη Member IDEA), ßιh:ò: : :,,
Sτaτes'press :

release of 31 March 2020. COVID-I9 br ::,., :

31Joint Sιatement - Rule of Law ßη the context of ιhε COVID-19 crisls, by Sweden, Belgium, ,:--
Denmark, Εòτοηßα, 16
See Europear. l
Finland, France, Germany, Greece, ΙtαΙμ lreland, Latvia, Lithuania, Luxembourg, the Neτherlands, Porτugal and 'Februan,inr,, -.-:
Spain, updated 8 April 2020, available αt: < https:/Λ.vww.government.se/arιicles/2020/04/joinτ-sτaτemenτ--rule-of_ riSee this Τßmε,._: :
law-in-the-contexι-of-the-covid- 19-crisi s/ >,
 HOW ΤΗΕ PANDEMIC LED ΤΟ \,YIDE-SCALE THREATS ΤΟ FUNDAMENTAL
RIGHTS ΙΝ ΤΗΕ Ευ

d ιτ ::e first was rePorted that Ιhe EuroPean Commission would be ouτsourcing
human righτs moniτoring
ι ιhε :eld of bY sPending 350,000 euros Οη α platform that, every fοττηßghτ, updaτes
ßτò moniτoring of
D\,ò߀: hand COVID-1g related measures or developments from α democracy and human righτs perspecτive
:sε c:,*ld ior for those that 'do' or 'may lead to α violation of human righτs or
democraτic benchmarks and
ade:: Code. be considered disProportionate, unnecessary, illegal or indeflniτe if enforced
or mainτained
ecir ε. ,\ηιß- over time' ßη 162 countries including the Member States.35 Againsτ
τhaτ background, consider,
)ι:ι º€ SCOPe from αη internal market-perspective, Daniel Thym's concerns ßη
Chapτer 26 of τhis book of τhe
g ýε ::ghτ ιο
Politicisation of the f,eld, and his perception that the European Commission has behaved more
re. ,-ι: could like α Political mediator than α law-based 'Guardian of τhε Treaτies', as ßτ
had done ßη response
αßη_. *nclear. to other crises such as terrorist attacks ßη the early 2010s, and τhe
refugee crisis of 2015-16.
§'. ,J,e
SCOPe Indeed, the οηΙγ speciflc enforcement action thατ can be seen so far is
ßη τhe Commission,s
ρρßι Ευ larι Commencement of αη infringement procedure against Hungary;36
α Ιeττeτ of formal ηοτßce was
Sent to HungarY ßη October 2020, followed by α reasoned
ορßηßοη ßη February, considering τhaτ
es ò: seιιßηg new asYlum Procedures Set out ßη the Hungarian Αòτ and Decree
iniroduced ßη response το τhe
ια:τ::ιιg ιhε coronavirus Pandemic are ßη breach of Ευ Ιαιν, ßη parτicular τhe Asylum procedures
Direcτive
ßη s:a:enents interpreted ßη light of the Charter of Fundamenτal RighτS of τhe
European υηßοη (τhis is ßη facτ
αÜ :εpresent the fifth time it has commenced the process since 2015),
FßηαΙΙγ, ParticularlY interesting considering the above is τhe ßηηονατßνe
proposaι by David
τ ßLò ::andate KraPPitz and Niels Kirst ßη Chapter 12 of this book of α way τhατ τhe European
Commission
) cΟ::τience could utilise its comPetence to commence Article 25Β iegal infringemenτ proceedings
for
eτ:e; Sιates breaches of democratic values due to abusive state of emergency powers,
ßη whατ is α ηονeι
ιeτ. Ι: \larch emergency siτuation, based οη Article 10(2) ΤΕΙJ.
ß εc:,:liance
τηι::eß ιο do 5. The EU's Legislative and Policy Response
òeτε a.arηed
aen:a. righιs' Respect and protection of the core Ευ values seτ ουτ ßη Arτicιe 2 TEIJ shouιd be expecτed
Ilr, :-.ιessan, not ΟηΙγ from the EuroPean Commission, but from αΙΙ Ευ Ιηsτßτυτßοηò,
The EU,s ιegßòιατßγe
ι Jι:ι ]Ο20 ßι resPonse however reveals that the earliest, predominanτ, and mοòτ robusτ
ιegßòιατßνe - and
binding - measures emanating from the Ευ ßη response το τhε C9VID-19 crisis did ηοτ
have
much to do with PrΟtecting human rights and democraτic values37 - wiτh τhe gιaring
Ε::.:] _-Ξ-_Cη
and
ι ßν -. -, : -"r- obvious excePtion of the right tο health and life, serving as α ground for resτricτions
of oτher
;,.τ:*::: Ξ,:e-s human rights such as those referred to ßη this Chapτer. The Ιεgßòιατßνe
response from τhe Ευ
Institutions has been and continues to be tipped raτher heavily τοινατd τhe
τßι :__., :id fleιds of Sτaτe aid,
ü:ι Ξ::.,:,=::_εs
Ε Ξ -,- ; ,_-. 35Vince Chadwick,
¸υ launches another tool οη pandemic's ýτεατ ιο human righτs'Devex, Β July 2020. This occurs
αη oniine tool PrePared by the International Instituιe for Democracy aid
Ε ò,,::..-::ε
1!γυεh
IDEA), which also oPerates INTER PARES - similarly funded by τhe Ευ το τταòκ
Elecτoraι Assisτance (ιηιeτηατßοηαι
measures τακeη ßη response το
COVID-19 by most parliaments woridwide.
36See
European Commission, ¼ctober infringements package: key decisions', press
reιease of 30 ocτober 2020; and
'February infringements package: key decisions', prδss release of 1Β February
2021.
]7
See this Timeline of Ευ αcΙßοη οη the Commission's webslte, which
is updaτed reguιarly. Αναßιαbιe ατ < hττps://
ec.europa.eu/infoΛive-rσork-ιravel-eu/coronavirus-response/timeline-eu-action
en >.
Ξ-

Part ΙI. DEMoCRACYAND RIGHTS

the smooth operaτion of τhe ßητeτηαΙ markeτ, and τhe ßmραòτ οη the economy, far ouτweighing
the response to the human rights and democracy aspects.
Ροιßòγ responses have come ßη τhe form of non-binding and non-sPecific measures such as
Action Plans, Strategies, α Code of Practice, and α Migration 'Pact'. Αη overall viel,v of those
αcτßοηò shows τhατ τhis has also been lopsided ßη the attention given to the risks to some rights
and values ονeτ others - for example the impact οη privacy and data protection rights,
and οη

τhe righτ το αòγιυm and relaτed Γßghτò.3θ Ιη facτ, the most direct Ευ response tο the
imPact of

COVID-19 measures οη τhe largesτ scale curtailing of human rights we have seen ßη decades
comes ßη τhe form of idenτifying τhem τhrough reports which have ηο legal value - from
Ιhe

Fundamenτal Righτs Agency (FRA), τhe European Asylum and Supporτ offlce (EASO), and τhe
European Data Protection Board (EDPB).ω

6. Conclusion

Α wide array of human righτs and democraτic values have been imPacted or deliberatelY
Ιimited, to α significanτ eχτeητ, and were (selecτively) identif,ed ßη this overview as occurring
τhrough C9VID-19 relaτed measures, imposed to try to protect the life and health of the
populations of Ευ Member òτατeò το flghτ the pandemic. This Chapter pointed out some of
1. Introduòtio

the fundamental rights and democratic values as specif,cally enshrined ßη Ευ law, ßη

particular
The òυπε::
justif,cation tests
under τhe Charτer of Fundamenτal Righτs, and briefly pointed ουt the legal orders, Ιη rna:_,,
τhατ are necessary for breaches and derogaτions of those rights and Values. Ιt also
anticiΡates
emergencγ CC=ε
τhe pending ηατßοηαΙ and Ευ judicial aSSeSSmentS, complex exercises given the doubt as
free press arc :
το wheτher cerτain cases will even reach the courts; difficulties ßη identifYing the offending of emergencι, ι.
measure ßη nature; τhe differenτ periods of time for which measures were ßη effect; the need
to
temporarilr, - *_:
assess either general measures, or τhrough α different legal lens, derogations; whether
national
Ευ can opera,*::
measures even fαιι wiτhin τhe scope of τhe need to balance public health objectives
Ευ law; the Member S'=:
wßτh oτher fundamenτal righτs; and τhe varying states of the crisis ßη different Member
States,
The αι:,:.::.
Finally, it briefly showed τhατ τhe EU's policy and legislaιive approach - also important for Ευ
years, led ιò -
fundamenτal righτs το be upheld _ το SuCh breaches and derogaτions has been weak, and
τhατ
of the Trea:,es
where αòτßοη has been ταΚeη ßη τhe policy cοητeχß, ßτ remains τipped ßη ihe favour of some
areas
Arτicle 2 TEL ι]

over others.
Ending οη α legally disappoinτed ηοτe is ηοτ αη unexpecτed occurrence - τhere is α need
for α higher level of scrutiny and judicial enforcement, as rvell as α policy and legislative 1This conr.i_-*: ' :
as τhατ is necessary even ßη - especially ßη
_ times of crisis and κατοΙßηα Zbl-:,:..
Ευ citizens,
2
response to ρτοtect
Μαγ 202Ο,
emergency. 3Ediι Zgu:.,i_-_-,::
-.
COVID-19', ,./.
Emergencι ? _-^:τ
α
Laura Liι::g.:: -
rsFor αη overview of τhe measures τaken by τhe Ευ ßη τhßs respect showing the emphasis οη data Plotection rights
,More αττeηιßοη paid ßη responses το dατα protection rights', see: Anjum Shabbir, ¸υ's response to
5
For furýe: :ι:,::-_
under τhe òυbτßτιe JosÝ lgre'a \1:: -s
breaches of human rights and democraic vaιues during the pandemic,, EtJ Law LiVe,26
November 2020,
Ευ agencies,
ο
ιΙιυιτο γτι _ , -|+
39
See lbid., for more detail οη the findings of the repoπs by those