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The Good, the Bad and the Rest: How the European Union Responded to the COVID-19 Pandemic in the Transport Sector

Published online by Cambridge University Press:  01 March 2023

Pierpaolo Settembri Open the ORCID record for Pierpaolo Settembri [Opens in a new window]  and
Rishi Kumar
Pierpaolo Settembri*
Affiliation:
European Commission, Brussels, Belgium
Rishi Kumar
Affiliation:
European Commission, Brussels, Belgium
*
*Corresponding author. Email: pierpaolo.settembri@ec.europa.eu
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Abstract

Due to its severity, the COVID-19 pandemic is one of the greatest crises to have tested the European Union’s (EU) ability to take effective action. The restrictive measures adopted by the Member States to curb its spread affected in particular the free movement of people and partly of goods. This prompted the EU to take action inter alia to maintain essential travel, protect supply chains, enhance contact tracing and facilitate the coordinated resumption of travel. Building on the notion of “output legitimacy”, this paper assesses the EU’s success in responding to the COVID-19 pandemic in transport by looking at the four main initiatives between the end of 2020 and June 2022, namely: (1) the EU Digital COVID Certificates; (2) cross-border contact tracing through Passenger Locator Forms; (3) the “Green Lanes” for freight transport; and (4) the coordinated approach to facilitating safe and free movement. These initiatives are measured against the EU’s legal competence, economic interests, political pressure and the added value of EU action. While recognising the small set of cases, the results show that, although legal competence is a decisive factor for success, EU initiatives can achieve equivalent effect even in its absence, provided other conditions are met.

Keywords

COVID-19European Unionfree movementsingle markettransport

Information

Type
Articles
Information
European Journal of Risk Regulation , Volume 15 , Special Issue 2: Special Issue on the Future of Food Law , June 2024 , pp. 386 - 402
Copyright
© The Author(s), 2023. Published by Cambridge University Press

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References

1 A Boin and M Rhinard, “Crisis Management Performance and the European Union: The Case of COVID-19” (2022) Journal of European Public Policy DOI: 10.1080/13501763.2022.2141304.

2 See Eurobarometer 96, Public Opinion in the European Union, January–February 2022.

3 According to the Eurobarometer 91 of spring 2019, the free movement of people, goods and services within the EU is seen by Europeans as the most positive result of the EU, with 60% of the total answers.

4 See A Alemanno, “The European Response to COVID-19: From Regulatory Emulation to Regulatory Coordination?” (2020) 11(2) European Journal of Risk Regulation 30716; H van Eijken and JJ Rijpma, “Stopping a Virus from Moving Freely: Border Controls and Travel Restrictions in Times of Corona” (2021) 17(3) Utrecht Law Review 34–50.

5 VA Schmidt, “Democracy and Legitimacy in the European Union Revisited: Input, Output and ‘Throughput’” (2013) 61 Political Studies 2–22; G De Angelis, ”Political Legitimacy and the European Crisis: Analysis of a Faltering Project” (2017) 18(3) European Politics and Society 291–300.

6 R Forman and E Mossialos, “The EU Response to COVID-19: From Reactive Policies to Strategic Decision-Making” (2021) 59 Journal of Common Market Studies, 56–68; L Van Middelaar, Pandemonium: Saving Europe (Newcastle upon Tyne, Agenda Publishing 2021); Boin and Rhinard, supra, note 1.

7 See RM Schomaker, M Hack and A-K Mandry, “The EU’s Reaction in the First Wave of the Covid-19 Pandemic between Centralisation and Decentralisation, Formality and Informality” (2021) 28 Journal of European Public Policy 1278–98.

8 Other important initiatives had a more specific focus on certain transport modes, such as those on airport slots, the derogations to rest time in road transport or the provisions on rail access charges.

9 J Deutsch and H Cokelaere, “European Union commissioner: Coronavirus immunity certificates aren’t reliable” (POLITICO EU, 25 May 2020) <https://www.politico.eu/article/eu-health-commissioner-warns-that-immunity-certification-isnt-reliable/>.

10 European Commission, Proposal for a Regulation of the European Parliament and of the Council on a framework for the issuance, verification, and acceptance of interoperable certificates on vaccination, testing and recovery to facilitate free movement during the COVID-19 pandemic (Digital Green Certificate).

11 European Commission, Regulation (EU) 2021/953 of the European Parliament and of the Council of 14 June 2021 on a framework for the issuance, verification, and acceptance of interoperable COVID-19 vaccination, test, and recovery certificates (EU Digital COVID Certificate) to facilitate free movement during the COVID-19 pandemic.

12 European Commission, Regulation (EU) 2021/954 of the European Parliament and of the Council of 14 June 2021 on a framework for the issuance, verification, and acceptance of interoperable COVID-19 vaccination, test, and recovery certificates (EU Digital COVID Certificate) with regard to third-country nationals legally staying or residing in the territories of Member States during the COVID-19 pandemic.

13 Discussions on this initiative took place also at the December 2021 meeting of the Transport, Telecommunications and Energy Council and are available online at <https://video.consilium.europa.eu/event/en/25283?start_time=0>.

14 European Union Digital Passenger Locator Form.

15 Accessible at <https://app.euplf.eu/>.

16 Commission, Implementing Decision (EU) 2021/858 amending Implementing Decision (EU) 2017/253 as regards alerts triggered by serious cross-border threats to health and for the contact tracing of passengers identified through Passenger Locator Forms.

17 Commission, Implementing Decision (EU) 2021/1212 amending Implementing Decision (EU) 2017/253 as regards alerts triggered by serious cross-border threats to health and for the contact tracing of exposed persons identified in the context of the completion of Passenger Locator Forms.

18 European Commission Communication: upgrading the transport Green Lanes to keep the economy going during the COVID-19 pandemic resurgence pandemic resurgence, 28 October 2020 – 2020/685.

19 Eg Guidelines for border management measures to protect health and ensure the availability of goods and essential services or Guidelines concerning the exercise of the free movement of workers during COVID-19 outbreak.

20 Council Recommendations (EU) 2020/1475 of 13 October 2020 <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32020H1475&from=EN>, (EU) 2021/119 of 1 February 2021 <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32021H0119&from=EN>, EU 2021/961 of 14 June 2021 <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32021H0961&from=EN> and (EU) 2022/107 of 25 January 2022 <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32022H0107&from=EN>. Equally, the Commission promoted a coordinated approach to the temporary restrictions imposed by Member States on non-essential travel into the EU.

21 European Commission Communication: COVID-19 – Sustaining EU Preparedness and Response: Looking ahead, COM 2022/190.

22 See K Purnhagen, A De Ruijter, M Flear, T Hervey and A Herwig, “More Competences than You Knew? The Web of Health Competence for European Union Action in Response to the COVID-19 Outbreak” (2020) 11(2) European Journal of Risk Regulation 297–306.

23 Treaty on the Functioning of the Europe Union Art 21(2): “If action by the Union should prove necessary to attain this objective and the Treaties have not provided the necessary powers, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1.”

24 In case the EU had decided to intervene with a typical act – binding or otherwise – and it had to identify a relevant legal basis, this would have been, at most, a supporting competence under Art 6 TFEU (ie the protection of human health). This is because the core of the Green Lanes initiative is about exempting transport workers from those health-related measures (eg quarantine and mandatory testing) that could have paralysed cross-border freight transport.

25 See The Brussels Times, “Dozens Arrested at Anti-Coronavirus Measures Protests in Brussels (The Brussels Times, 26 October 2020) <https://www.brusselstimes.com/137612/dozens-arrested-at-anti-coronavirus-measures-protests-in-brussels-corona-covid19-dictatorship-police-parc-cinquantenaire-schuman-gare-du-nord>; V Dekimple, “Berlin Police Disband Mass Protest against Covid-19 Restrictions” (France 24, 29 August 2020) <https://www.france24.com/en/20200829-berlin-police-disband-mass-protest-against-covid-19-restrictions>.

26 Para 4 of the statement of the Members of the European Council following the informal video conference on 25 and 26 February 2021.

27 Conclusions by the President of the European Council following the video conference on COVID-19 on 10 March 2020.

28 European Commission, Communication on the implementation of the Green Lanes under the Guidelines for border management measures to protect health and ensure the availability of goods and essential services.

29 See C Taylor, Here’s Why People Are Panic Buying and Stockpiling Toilet Paper to Cope with Coronavirus Fears (CNBC, 11 March 2020) <https://www.cnbc.com/2020/03/11/heres-why-people-are-panic-buying-and-stockpiling-toilet-paper.html>; M Chini, “Why the Netherlands Goes into Strict Lockdown, but Belgium Does Not” (The Brussels Times, 14 December 2020) <https://www.brusselstimes.com/145476/why-the-netherlands-goes-into-strict-lockdown-but-belgium-doesnt-steven-van-gucht-closing-shops-bars-restaurants-incidence-ecdc-coronavirus-covid-19-infections-contacts-christmas-consultative-committe>.

30 European Council, Joint statement of the Members of the European Council, Brussels 26 March 2020.

31 European Council, Council Conclusions 16 October 2020, 11 December 2020 and 22 October 2021, December 2021.

32 European Council, Outcome of the European council videoconference of 25 February 2021; European Council, Statement of the Members of the European Council, 25 March 2021; Further calls for action in Council Conclusion December 2021.

33 Includes four that concerned both the travel restrictions and the COVID certificate.

34 Includes one that concerned both the travel restrictions and the COVID certificate.

35 Eurostat (2022), Air Transport Statistics, “Impact of Covid-19 Crisis on Services” <https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Impact_of_Covid-19_crisis_on_services>.

36 “COVID-19: Absence of Tourists Could Harm Italy with €36.7 Billion Loss, WTTC Says” (Schengen News, 4 September 2020) <https://www.schengenvisainfo.com/news/covid-19-absence-of-tourists-could-harm-italy-with-e36-7-billion-loss-wttc-says/>.

37 European Tourism Manifesto Alliance, “European Tourism Manifesto Urges EU to Coordinate on Coronavirus Travel Restrictions” (Schengen News, 9 September 2020) <https://www.schengenvisainfo.com/news/european-tourism-manifesto-urges-eu-to-coordinate-on-coronavirus-travel-restrictions/>; EU Reporter, “Transport and Tourism Associations Reiterate Their Call for EU Member States to Align Their Travel Rules and Avoid Patchwork System” (Airlines for Europe, 26 January 2022) <https://a4e.eu/publications/transport-and-tourism-associations-reiterate-their-call-for-eu-member-states-to-align-their-travel-rules-and-avoid-patchwork-system/>.

38 European Commission Communication, Upgrading the transport Green Lanes to keep the economy going during the COVID-19 pandemic resurgence pandemic resurgence, 28 October 2020.

39 European Council, Joint statements of the Members of the European Council, Brussels 26 March 2020 and 25 March 2021.

40 Statista Research Department, “Road Freight Market Size in Europe 2010–2025 (Statista, 29 September 2022) <https://www.statista.com/statistics/1068472/road-freight-market-size-europe/>; N Blain, “Covid-19 Crisis and European Mobility: What Lessons? What Future? (European Issues no. 604, 19 July 2021) <https://www.robert-schuman.eu/en/european-issues/0604-covid-19-crisis-and-european-mobility-what-lessons-what-future>.

41 Art 5 of the Treaty on the European Union.

42 European Commission, Report to the European Parliament and the Council: on a framework for the issuance, verification, and acceptance of interoperable COVID-19 vaccination, test, and recovery certificates (EU Digital COVID Certificate) to facilitate free movement during the COVID-19 pandemic.

43 For an updated list, please see <https://ec.europa.eu/info/publications/commission-implementing-decisions-eu-equivalence-covid-19-certificates-issued-non-eu-countries_en>.

44 Blain, supra, note 40.

45 Member States are free to collect PLFs or not, to collect them using their own form or with the common template (EUdPLF), to connect to the PLF exchange platform or otherwise and to exchange passenger data using the PLF exchange platform or the EWRS selective messaging system.

46 European Court of Auditors, special report on “Free movement in the EU during the COVID-19 pandemic” published on 13 June 2022, p 31.

47 ibid.

48 ibid, p 37.

49 <https://reopen.europa.eu/en>.

50 European Court of Auditors, supra, note 46, p 31.

51 “European Council President, Luxembourg PM Discuss Climate Change, Rule of Law” (Chronicle.lu, 16 September 2021) <https://chronicle.lu/category/at-home/37736-european-council-president-luxembourg-pm-discuss-climate-change-rule-of-law>; Statista Research Department, supra, note 40; Blain, supra, note 40.

52 European Commission, “Contingency Plan for Transport” <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2022%3A211%3AFIN>; International Road Transport Union (IRU), “EU Must Not Backtrack on COVID-19 Border and Driver Commitments” (IRU, 3 February 2021) <https://www.iru.org/news-resources/newsroom/eu-must-not-backtrack-covid-19-border-and-driver-commitments>.

53 Purnhagen et al, supra, note 22.

54 European Commission, “How Tracing and Warning Apps Can Help During the Pandemic” <https://commission.europa.eu/strategy-and-policy/coronavirus-response/travel-during-coronavirus-pandemic/how-tracing-and-warning-apps-can-help-during-pandemic_en>.