E-5/23 -   LDL v Patalemyndigheten  

EFTA-case 

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Deadlines: Motivation ministry:    2 August 2023
Written observations:                    19 September 2023

Keywords: freedom of movement

Subject:

- 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: Articles 1, 4-7, 27, 29(1), 30, and 31.

- Agreement on the European Economic Area: Articles 13, 28, 33, 36, and 39.

Facts of the case:

The Appellant, LDL, is a Swedish national and is resident of Norway. He went to Sweden to visit family and upon return to Norway he was ordered to stay at a quarantine hotel, but he never presented himself at the hotel. The District Court eventually delivered judgment in which LDL was convicted as charged in an issued optional penalty writ. The District Court held that the rules on quarantine hotels were not contrary to the control of communicable diseases act, the Constitution or the European Convention on Human Rights. The District The Court did not, however, consider whether the rules on quarantine hotels were compliant with Directive 2004/38/EC or the Main Part of the EEA Agreement. The District Court set a penalty to a fine and LDL was also ordered to pay costs in favour of the State. The Court of Appeal also concluded that the rules on quarantine hotels were not contrary to EEA law or to the control of communicable diseases act, the Constitution or the European Convention on Human Rights and LDL’s appeal was dismissed.

LDL appealed to the Supreme Court on the point of application of the law under the question of guilt and the appeal was referred for appeal proceedings. LDL was granted leave to appeal “on the point of application of the law in so far as it concerns the question whether the applicable rules in the Regulation are contrary to the rules of the control of communicable diseases act, the Constitution, the European Convention on Human Rights or EEA law”. The particular features of Covid-19 pandemic have given rise to certain questions concerning the understanding of the established assessment to be applied when the Supreme Court is to decide whether the restriction on freedoms under EEA law that the obligation to undergo a period of quarantine at a quarantine hotel constituted, may be justified. The Supreme Court has found that it is appropriate to request the EFTA Court to provide its opinion on these matters of interpretation.

The defence counsel submits that the facts of the case as presented lead to a number of restrictions on LDL’s rights of free movement and the Prosecuting Authority submits that the restriction was necessary.

Note: The subject matter of this case also concerns certain questions on which the ECJ may already have ruled in the said Case C-128/22 Nordic Info by the time of the EFTA Court’s Advisory Opinion. The case also raises some questions concerning the relationship between rules in the Main Part of the EEA Agreement and Directive 2004/38/EC, and, depending on the answer to that question, potentially also questions concerning the relationship between different freedoms under the Main Part of the EEA Agreement.

Request for an advisory opinion:

1. Based on the information provided about the factual background to the case [as set out in the request], in the light of which provision(s) of Directive 2004/38/EC should the restriction-related questions in the present case be examined?

2. Provided that LDL, upon returning to Norway, could rely on his rights under Articles 4, 5, 6 and/or 7 of Directive 2004/38/EC, does a more extensive right to cross the border and reside in Norway without restrictions derive from his right of free movement as a worker under Article 28 of the Main Part of the EEA Agreement or from his right to travel to Sweden to receive services under Article 36 of the Main Part of the EEA Agreement?

3. If a more extensive right of entry derives from the provisions on freedom of movement under the Main Part of the EEA Agreement, ref. question 2, and if LDL’s travel to Sweden on its own also came within the scope of his right to travel there to receive services, is the question of whether the restriction on the freedom to provide services absorbed by the question of whether the restriction on his free movement as a worker can be justified?

4. Does Chapter VI of Directive 2004/38/EC allow for the introduction of restrictions on rights under that directive, with the objective of safeguarding public health, in the form of general regulations, or is that option limited to individual measures based on considerations of risk of infection relating to the individual traveller?

5. In light of the fact that the authorities are free to determine the degree of protection, and assuming that EEA law would not have precluded the adoption of even more invasive measures such as total or partial closure of borders, or a decision to require all travellers to undergo the period of quarantine at a quarantine hotel, what implications does it have for the EEA law assessment of the suitability of the scheme chosen that only certain groups had to go to a quarantine hotel?

6. What significance does it have for the assessment of whether the measure is consistently implemented and therefore suitable, that the quarantine hotel scheme (was part of an overall strategy for control of communicable diseases that also) was based on prioritisations as to which groups who, out of consideration for society as a whole, should be given priority within the parameters of the overall infection burden which the authorities considered acceptable at that time?

7. In the drafting of the rules in a pandemic situation such as that at issue in the present case, how much weight can be attached to the need to introduce general and simple rules which can be easily understood and applied by concerned parties and easily managed and supervised for compliance by the authorities, see C-110/05 Commission v Italy, paragraph 67?

8. Is it within the consideration of enforceability and control – and therefore within the legitimate aims in the assessment of whether the measure is justified – that the quarantine hotel scheme could potentially have a deterrent effect for persons contemplating travel abroad, with the consequence that the total infection pressure was reduced?

9. What implications does it have for the assessment of the lawfulness of the restrictions if individual legal certainty safeguards under Articles 30 and 31 of Directive 2004/38/EC apply to the present case, but were potentially not fulfilled?

10. In the assessment of whether the measure is proportionate under Articles 27 and 29 of Directive 2004/38/EC, and potentially also under the Main Part of the EEA Agreement, is there a requirement of proportionality in the narrow sense of the term (stricto sensu) in the present case?

11. If question 10 is answered in the affirmative, what is potentially the legal content of and the legal subject-matter to be examined in the assessment of whether such a requirement is fulfilled in the present case?

Cited (recent) case-law: Case C-128/22 Nordic Info; Case C-19/92; C-110/05 Commission v Italy; -318/07; C-394/97; C-333/14 Scotch Whisky Association; C-209/18 Commission v Austria; Case E-3/06 Ladbrokes Ltd; E-8/20 Criminal proceedings against N; E-5/10; E-16/10 Philip Morris Norway AS.

Policy Area: JenV