Insight: “Fundamental rights implications of measures against the COVID-19 outbreak” by Dolores Utrilla
The EU Fundamental Rights Agency (FRA) has published its first report on fundamental rights implications of the coronavirus pandemic in the EU. The report, released on 7 April and now available at the FRA’s website, covers the period between 1 February and 20 March 2020, outlining the effects for fundamental rights of some of the measures EU Member States have put in place to protect public health during the COVID-19 pandemic.
The report is based on 27 country studies prepared by FRA’s research network (FRANET) and focuses on four inter-related issues, namely (i) measures to contain COVID-19 and mitigate its impact in the areas of social life, education, work, and freedom of movement, as well as asylum and migration; (ii) the impact of the virus and efforts to limit its spread on particular groups in society; (iii) incidents of xenophobic and racist discrimination, including hate crime; and (iv) the spread of disinformation concerning the outbreak and the implications of related containment measures on data protection and privacy.
Under international and European human rights law, certain rights may be restricted in exceptional circumstances, such as the rise of a major health crisis, if required for the protection of overriding rights or interests. Moreover, in such exceptional circumstances states can also introduce emergency laws derogating from some human rights for a limited time and in a supervised manner. If adopted, derogations must be formally notified, prescribed by law, proportionate, and necessary. This justifies and makes necessary close monitoring by the EU institutions, agencies, and bodies, as well as by the European Court of Human Rights (ECtHR).
So far, a large majority of EU Member States have adopted emergency measures affecting fundamental rights in varying forms, and three Member States (Estonia, Latvia, and Romania) have availed themselves of the possibility to derogate from the European Convention on Human Rights (ECHR) in times of emergency, as set out in Article 15 thereof.
Some of these measures pose major issues when faced with the requirements stemming from fundamental rights protection. For example, deprioritisation of patients of older age to prevent health systems being overwhelmed put at risk the rights to life and to equal access to healthcare. Lack of resources may expose vulnerable groups, including people living in institutional settings, people with disabilities, homeless people, Roma and migrants, at increased risk of infection. Physical and social distancing measures to contain the outbreak, including forms of quarantine, affect inter alia the rights to liberty and security, private and family life, freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and of association, freedom of the arts and sciences, and freedom of movement and of residence. Closure of educational centres and businesses has an immediate impact on the right to education and on economic and labour rights.
In particular, worker’s rights are at high risk, as emphasised by the FRA. On the occasion of the International Workers’ Day, the EU Agency noted that under the ongoing circumstances employers may try to circumvent legal provisions protecting workers from unjustified dismissal and offering social security and social assistance. It also highlighted that workers with informal employment agreements, and limited access to healthcare and social protection before the pandemic, are particularly at risk now. Moreover, some workers may suffer disproportionately from restrictions due to the containment measures put in place by national authorities, such as parents of young children and single parent families, employees with health issues and disabilities, and migrant workers transported to work in agriculture or to provide social care. A specific call has been made to governments and employers to ensure fair working conditions, including safeguarding requirements to avoid putting workers at risk of infection by not respecting physical distancing rules.
According to Article 52(1) of the Charter, the exercise of EU fundamental rights and freedoms may be limited if necessary to meet objectives of general interest recognised by the EU or to protect the rights and freedoms of others. Such limitations must be provided for by law, respect the essence of the affected rights and freedoms, and respect the principle of proportionality. Similar conditions are enshrined in the ECtHR’s case law for the limitation of human rights under the ECHR. Under the current circumstances, most restrictive measures put in place by Member States seem to have a legitimate aim. Nevertheless, as pointed out by the FRA, national courts, as well as EU courts and the ECtHR, will have a crucial role to play in assessing the necessity and proportionality of governmental measures.
The report is available here.
Dolores Utrilla is Assistant Editor at EU Law Live and Associate Professor at the University of Castilla-La Mancha.