Non-essential travel to EU – the latest EU recommendation and related pitfalls

Almost two months after many countries lifted their pandemic measures and at a time when some countries and regions are putting restrictions back in place, uncertainty is high and businesses are still trying to cope with the disruption.

In this context, even though international flights have restarted, many restrictions are still in place depending on the country of destination/origin, as well as the testing and quarantining requirements. After borders between member states opened on 15 June, the Council of the European Union issued a recommendation (PDF), which addresses the travel restrictions from third countries.

Even though the borders for tourists from the third countries are not yet open, the recommendation suggests three exemptions from this general rule: 

1. Legal status in a member state. Where travel restrictions are not lifted regarding a third country, independent of the purpose of travel, the third country nationals who are long-term residents and derive their rights to reside in the EU from EU directives or national law or hold long-terms visas should be exempted from the travel restriction. 
2. Country of destination/origin. The recommendation suggests a list of third countries, the residents of which should not be affected by temporary restrictions on non-essential travel into the EU. This list of suggested countries will be under continuous review and include states where the number of contaminated people is lower or close to the EU average per 100,000 inhabitants. 
3. Function of the traveller. The recommendation has a list of 11 functions that are considered to be essential, including healthcare professionals, frontier workers, seasonal agricultural workers, transport personnel, and highly qualified workers whose employment is necessary from an economic perspective and the work cannot be performed abroad. 

However, there is not yet any guidance on who falls into the categories classified as essential functions. Therefore, if the worker has a visa or a right to reside in a member state, they already fall within the first exempt category above.

In all cases, member states can introduce safety measures, such as self-quarantine.

It is worth mentioning that this recommendation is not binding. Therefore the legislation of each member state should be checked. For instance, Belgium has not followed this recommendation and has not yet opened its borders with some of the countries that the Council has suggested. Other countries, such as the UK, have some additional exemptions depending on the industry (eg travel related to those working in the aviation industry) while imposing a quarantine on most. Other regions, such as Bavaria in Germany, have already implemented specific and adaptable testing procedures.

In light of the above, employers should check local and regional laws regarding travel restrictions, exemptions and quarantine requirements. In addition, they may want to take another look at their international travel policies to ensure consistency.

Until another EU legal act, watch this space!