A BALANCED APPROACH BETWEEN MEMBER STATES COMPETENCES & EU CITIZENS’ RIGHTS 

Since the end of March, the European Parliament, and especially MEPs of the Tourism Task Force, has been calling on the European Commission (“EC”) to draw up guidance and recommendations as well as financial support for the tourism sector which is being hit hard by containment measures, bans on crossing borders and the postponement of many sporting and cultural events.  

As mentioned in our previous article[1], the European Union (“EU”) has a very limited competence in the field of tourism. This limitation makes it difficult to come up with a strong and well-coordinated plan. However, within the context of the general principles of EU law, and more specifically the Internal market rules, the EC has to monitor the Member States approach and avoid that the current crisis is mainly used by some Member States to protect its national (tourist) economy in a disproportionate manner, thereby undermining the EU citizens freedoms. 

This risk is certainly not purely theoretical. Some Member States continuously advocate that the touristic opportunities in their own country are large enough for their own citizens who can compensate the absence of foreign tourists. These arguments are unacceptable under EU law.

In this regard, it should be recalled that measures taken by Member States to restrict the free movement of persons must be clear, consistent, non-discriminatory and proportionate to the objective of protecting public health so that the European Union remains a united area, even in adversity[2].

Following its Joint European Roadmap towards lifting Covid-19 containment measures, the EC published on 13 May a “Tourism and Transport package” which is made up of guidelines and recommendations to help Member States gradually lift travel restrictions and allow tourism businesses to reopen, after months of lockdown, while respecting necessary health precautions.

The package provided by the EC gives a sufficiently strong framework for re-opening the EU market if Member States put the implementation of specific health measures proposed by the EC to address these risks on their priority list rather than announcing protectionist measures. 

The coming months will show whether Member States support the Internal market’s freedoms and place their citizens’ rights higher on the agenda. 

I. OVERVIEW OF THE TOURISM & TRANSPORT PACKAGE ISSUED BY THE EUROPEAN COMMISSION ON 13 MAY 2020

The European Commission’s Tourism and Transport package includes five documents of which three are more directly relevant for tourism and the free movement of persons. We will focus on the three documents[3]:

  1. An overall strategy towards Tourism and Transport in 2020 and beyond

The main point of the overall EC strategy is the call for coordination between Member States: 

Handled correctly, safely and in a coordinated manner, the months to come could offer Europeans the chance to get some well-needed rest, relaxation and fresh air, and to catch up with friends and family, in their own Member States or across borders”.

The coordinated framework is based on common, objective and non-discriminatory principles. It aims to guide Member States, competent authorities, industry bodies, economic operators and citizens through the next steps of the de-confinement process. The EC insists on the need for the Member States to establish clearly understandable and reasonable rules allowing EU citizens to safely stay at hotels, eat and drink at restaurants, bars and cafés or go to beaches and other leisure outdoor areas, including areas with outdoor servings, canteens, marinas (see II. on the specific guidance issued by the EC on this issue).

The EC recalls that until a vaccine or treatment is available, the needs and benefits of travel and tourism must be weighed against the risks of facilitating the spread of the virus and a resurgence of cases. However, the institution also insists more generally on the need to get the tourism sector back on track by showing the crucial importance of this sector for EU’s GDP and employment. The EC highlights that tourism is the backbone of the economy for many Member States and four of them are among the top world destinations for international arrivals and receipts (France, Spain Italy, Germany).

As regards financial contribution to the sector, the EC states that:

  • a number of Member States have already taken actions, under the Temporary State Aid Framework adopted in March 2020;
  • the EU has unlocked 1 billion euros as a guarantee for the European Investment Fund, which will leverage a loan guarantee of 8 billion euros to help 100 000 SMEs across the EU;
  • the SURE programme helps Member States cover the costs of national short-time work schemes and similar measures allowing companies to safeguard jobs. 

To conclude on this overall strategy the EC makes clear that the shared ambition should be to maintain Europe as the world’s leading tourist destination. At the core of this new ambition is:

  • sustainability, in accordance with the European Green Deal;
  • digital transitionproviding notably new ways of managing travel and tourists.

As already announced, the EC will organise, as soon as health circumstances allow, a European tourism convention gathering EU institutions, the industry, regions, cities and stakeholders in order to build the “European Agenda for Tourism 2050”.

  1. A communication on a phased and coordinated approach for restoring freedom of movement and lifting internal border controls

Importantly, the EC recalls that the primary condition for restoring travel will be the epidemiological situation. 

However, the EC invites the Member States to engage in a process of re-opening unrestricted cross-border movement within the EU and points out that the border closures are “a heavy burden not only on the functioning of the Single Market but also on the lives of millions of EU citizens deprived of the benefits of the freedom of movement which is a key achievement of the European Union. Restoring the smooth functioning of the Single market is a key requirement for the recovery of the EU’s economies and notably the important tourism ecosystem and transport”.

According to the EC, three criteria should be considered by the Member States when lifting travel restrictions and internal border controls: the epidemiological situation, the ability to ensure that containment measures, such as physical distancing, as well as economic and social considerations.

In any case, as indicated by the EC, after assessment of the epidemiological situation, any envisaged remaining restrictions should only be based on public health considerations and should be proportionate and non-discriminatory. 

  1. EU Guidance for the progressive resumption of tourism activities safely and gradually and for developing health protocols for hospitality establishments such as hotels.

This document sets out a common objective and non-discriminatory framework for the citizens, public authorities, businesses and stakeholders operating in the tourism sector, for the gradual re-establishment of tourism services. Member States are encouraged to share this guidance with competent authorities and regional/local level and tourism stakeholders, such as professional associations and online tourism platforms which are also encouraged to disseminate and raise awareness of this guidance.

II. FOCUS ON THE EU GUIDANCE FOR THE PROGRESSIVE RESUMPTION OF TOURISM SERVICES AND FOR HEALTH PROTOCOLS IN HOSPITALITY ESTABLISHMENTS SUCH AS HOTELS

The EU guidance, based on the advice of the European Centre for Disease Control and Prevention, establishes a list of criteria and principles that have to be respected for the safe and gradual restoration of tourism activities and for the development of health protocols in hospitality establishments.

In this very detailed document, the EC distinguishes:

  • general principles for the gradual restoration of tourism activities;
  • more specific principles for developing infection prevention, control measures and for protocols in hospitality establishments.

General principles for the gradual restoration of tourism activities include the assessment of epidemiological situation, sufficient health system capacity, robust surveillance and monitoring, testing capacity, contact tracing, coordination and communication mechanisms.

Specific principles for developing infection prevention, control measures as well as protocols in hospitality establishmentsinclude health and safety of guests and workers as a key priority but also action plan in case of infections, etc. According to the Guidance, infection prevention and control measures (IPC measures) should include respiratory instructions (coughing or sneezing into a paper tissue or the elbow bend), hand hygiene, use of face masks, ventilation as well as cleaning and disinfection protocols.

An annex to the Guidance details very precisely, for each principle mentioned above, the recommendations from the European Centre for Disease Prevention and Control for the tourism sector in general and, more specifically, for hospitality establishments. 

This annex also contains specific recommendations for hotels as regards administration, reception services, spas and indoor swimming pools, outdoor facilities, conference and meeting rooms, toilets, elevators, etc.  and could be used as guidance for internal protocols.

If Member States follow the proposals and support the implementation of the guidelines on time, thereby taking up their responsibility to support cross-border tourism, it is perfectly realistic to imagine that EU citizens can travel within a reasonable and safe way within the EU. 


[1] “What responses does the European Union provide to the tourism sector within the framework of its competences?”, 11 May 2020

[2] See our article “Where are the boundaries of compatibility of national restrictions with European Union law?”, 21 April 2020

[3] The two other documents are Guidelines to support the gradual re-establishment of transport whilst ensuring the safety of passengers and personnel and Recommendations on vouchers offered to passengers and travellers as an alternative to reimbursement for cancelled package travel and transport services in the context of the COVID-19 pandemic.