Otsus

JUDGMENT OF THE COURT

21 March 20241

(Directive 2004/38/EC – Acts of general application to protect public health –

Conditions and safeguards for measures adopted on public health grounds – Free

movement – Fundamental rights and freedom of movement – Legitimate aim –

Implementation in a consistent and systematic manner – Proportionality in the strict

sense)

In Case E-5/23,

REQUEST to the Court under Article 34 of the Agreement between the EFTA States

on the Establishment of a Surveillance Authority and a Court of Justice by the Supreme

Court of Norway (Norges Høyesterett) in criminal proceedings against

LDL,

concerning the interpretation of the Agreement on the European Economic Area, in

particular Articles 28 and 36 thereof, and 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,

THE COURT,

composed of: Bernd Hammermann, Acting President (Judge-Rapporteur), Michael

Reiertsen, and Gunnar Þór Pétursson (ad hoc), Judges,

Registrar: Ólafur Jóhannes Einarsson,

1 Language of the request: Norwegian. Translations of national provisions are unofficial and based on those

contained in the documents of the case.

– 2 –

having considered the written observations submitted on behalf of:

− LDL, represented by John Christian Elden and Olaf Halvorsen Rønning,

advocates;

− the Norwegian Prosecution Authority (Påtalemyndigheten), represented by Alf

Butenschøn Skre, acting as Agent;

− the Norwegian Government, represented by Terje Aalia, Ida Thue and Pål

Wennerås, acting as Agents;

− the EFTA Surveillance Authority (“ESA”), represented by Erlend Møinichen

Leonhardsen, Kyrre Isaksen, Hildur Hjörvar and Melpo-Menie Joséphidès,

acting as Agents; and

− the European Commission (“the Commission”), represented by Elisabetta

Montaguti and Jonathan Tomkin, acting as Agents;

having regard to the Report for the Hearing,

having heard oral arguments of LDL, represented by Olaf Halvorsen Rønning; the

Norwegian Prosecution Authority, represented by Alf Butenschøn Skre; the Norwegian

Government, represented by Pål Wennerås; ESA, represented by Erlend Møinichen

Leonhardsen and Kyrre Isaksen; and the Commission, represented by Jonathan Tomkin,

at the hearing on 15 November 2023,

gives the following

Judgment

I Legal background

EEA law

1 Article 28 of the Agreement on the European Economic Area (“the EEA Agreement”

or “EEA”) reads:

1. Freedom of movement for workers shall be secured among EC Member

States and EFTA States.

2. Such freedom of movement shall entail the abolition of any discrimination

based on nationality between workers of EC Member States and EFTA States

as regards employment, remuneration and other conditions of work and

employment.

– 3 –

3. It shall entail the right, subject to limitations justified on grounds of public

policy, public security or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of EC Member States and EFTA

States for this purpose;

(c) to stay in the territory of an EC Member State or an EFTA State for

the purpose of employment in accordance with the provisions governing

the employment of nationals of that State laid down by law, regulation or

administrative action;

(d) to remain in the territory of an EC Member State or an EFTA State

after having been employed there.

4. The provisions of this Article shall not apply to employment in the public

service.

5. Annex V contains specific provisions on the free movement of workers.

2 Article 36(1) of the EEA Agreement reads:

Within the framework of the provisions of this Agreement, there shall be no

restrictions on freedom to provide services within the territory of the

Contracting Parties in respect of nationals of EC Member States and EFTA

States who are established in an EC Member State or an EFTA State other

than that of the person for whom the services are intended.

3 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 (OJ 2004 L 158, p. 77) (“the

Directive” or “Directive 2004/38”) was incorporated into the EEA Agreement by

Decision of the EEA Joint Committee No 158/2007 of 7 December 2007 (“JCD

158/2007”) (OJ 2008 L 124, p. 20; and Norwegian EEA Supplement 2008 No 26, p.

17), and is referred to at points 1 and 2 of Annex V (Free movement of workers) and

point 3 of Annex VIII (Right of establishment) to the EEA Agreement. Constitutional

requirements indicated by Iceland, Liechtenstein and Norway were fulfilled on 9

January 2009, and the decision entered into force on 1 March 2009.

4 Article 1 of JCD 158/2007 reads:

Annex VIII to the Agreement shall be amended as follows:

1) …

– 4 –

The provisions of the Directive shall, for the purposes of the

Agreement, be read with the following adaptations:

(a) The Directive shall apply, as appropriate, to the fields covered by

this Annex.

(b) The Agreement applies to nationals of the Contracting Parties.

However, members of their family within the meaning of the Directive

possessing third country nationality shall derive certain rights

according to the Directive.

(c) The words “Union citizen(s)” shall be replaced by the words

“national(s) of EC Member States and EFTA States”.

...

5 Article 1 of the Directive reads:

This Directive lays down:

(a) the conditions governing the exercise of the right of free movement

and residence within the territory of the Member States by nationals

of EC Member States and EFTA States and their family members;

(b) the right of permanent residence in the territory of the Member

States for nationals of EC Member States and EFTA States and their

family members;

(c) the limits placed on the rights set out in (a) and (b) on grounds of

public policy, public security or public health.

6 Article 4(1) of the Directive reads:

Without prejudice to the provisions on travel documents applicable to

national border controls, all nationals of EC Member States and EFTA States

with a valid identity card or passport and their family members who are not

nationals of a Member State and who hold a valid passport shall have the

right to leave the territory of a Member State to travel to another Member

State.

7 Article 5(1) of the Directive reads:

Without prejudice to the provisions on travel documents applicable to

national border controls, Member States shall grant nationals of EC Member

States and EFTA States leave to enter their territory with a valid identity card

or passport and shall grant family members who are not nationals of a

Member State leave to enter their territory with a valid passport.

– 5 –

No entry visa or equivalent formality may be imposed on nationals of EC

Member States and EFTA States.

8 Article 7(1) of the Directive reads, in extract:

All nationals of EC Member States and EFTA States shall have the right of

residence on the territory of another Member State for a period of longer

than three months if they:

(a) are workers or self-employed persons in the host Member State;

or

…

(d) are family members accompanying or joining a national of EC

Member States and EFTA States who satisfies the conditions referred

to in points (a), (b) or (c).

9 Chapter VI of the Directive entitled “Restrictions on the right of entry and the right of

residence on grounds of public policy, public security or public health” contains Articles

27 to 33. Article 27 of the Directive reads:

1. Subject to the provisions of this Chapter, Member States may restrict the

freedom of movement and residence of nationals of EC Member States and

EFTA States and their family members, irrespective of nationality, on

grounds of public policy, public security or public health. These grounds

shall not be invoked to serve economic ends.

2. Measures taken on grounds of public policy or public security shall comply

with the principle of proportionality and shall be based exclusively on the

personal conduct of the individual concerned. Previous criminal convictions

shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine,

present and sufficiently serious threat affecting one of the fundamental

interests of society. Justifications that are isolated from the particulars of the

case or that rely on considerations of general prevention shall not be

accepted.

3. In order to ascertain whether the person concerned represents a danger

for public policy or public security, when issuing the registration certificate

or, in the absence of a registration system, not later than three months from

the date of arrival of the person concerned on its territory or from the date

of reporting his/her presence within the territory, as provided for in Article

5(5), or when issuing the residence card, the host Member State may, should

it consider this essential, request the Member State of origin and, if need be,

other Member States to provide information concerning any previous police

– 6 –

record the person concerned may have. Such enquiries shall not be made as

a matter of routine. The Member State consulted shall give its reply within

two months.

4. The Member State which issued the passport or identity card shall allow

the holder of the document who has been expelled on grounds of public

policy, public security, or public health from another Member State to re-

enter its territory without any formality even if the document is no longer

valid or the nationality of the holder is in dispute.

10 Article 29(1) of the Directive reads:

The only diseases justifying measures restricting freedom of movement shall

be the diseases with epidemic potential as defined by the relevant instruments

of the World Health Organisation and other infectious diseases or contagious

parasitic diseases if they are the subject of protection provisions applying to

nationals of the host Member State.

11 Article 30 of the Directive reads:

1. The persons concerned shall be notified in writing of any decision taken

under Article 27(1), in such a way that they are able to comprehend its

content and the implications for them.

2. The persons concerned shall be informed, precisely and in full, of the

public policy, public security or public health grounds on which the decision

taken in their case is based, unless this is contrary to the interests of State

security.

3. The notification shall specify the court or administrative authority with

which the person concerned may lodge an appeal, the time limit for the

appeal and, where applicable, the time allowed for the person to leave the

territory of the Member State. Save in duly substantiated cases of urgency,

the time allowed to leave the territory shall be not less than one month from

the date of notification.

12 Article 31 of the Directive reads:

1. The persons concerned shall have access to judicial and, where

appropriate, administrative redress procedures in the host Member State to

appeal against or seek review of any decision taken against them on the

grounds of public policy, public security or public health.

2. Where the application for appeal against or judicial review of the

expulsion decision is accompanied by an application for an interim order to

suspend enforcement of that decision, actual removal from the territory may

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not take place until such time as the decision on the interim order has been

taken, except:

— where the expulsion decision is based on a previous judicial

decision; or

— where the persons concerned have had previous access to judicial

review; or

— where the expulsion decision is based on imperative grounds of

public security under Article 28(3).

3. The redress procedures shall allow for an examination of the legality of

the decision, as well as of the facts and circumstances on which the proposed

measure is based. They shall ensure that the decision is not disproportionate,

particularly in view of the requirements laid down in Article 28.

4. Member States may exclude the individual concerned from their territory

pending the redress procedure, but they may not prevent the individual from

submitting his/her defence in person, except when his/her appearance may

cause serious troubles to public policy or public security or when the appeal

or judicial review concerns a denial of entry to the territory.

National law and practice

13 The national law and practice on 2 May 2021, the date of the indicted offence (“the

material time”), is set out in the following paragraphs.

14 The Norwegian framework for the control of communicable diseases was set out in the

Act of 5 August 1994 No 55 relating to the control of communicable diseases (lov 5.

august 1994 nr. 55 om vern mot smittsomme sykdommer (smittevernloven)) (“the

CCDA”).

15 Section 1-5 of the CCDA read:

Measures for control of communicable diseases pursuant to this Act shall be

based on a clear medical justification, be necessary for the purpose of

controlling infection and appear appropriate after an overall assessment.

Upon the implementation of measures for control of communicable diseases,

emphasis shall be given to voluntary participation by the person or persons

concerned by the measure.

16 Section 4-3 of the CCDA read:

The King may issue regulations to prevent communicable diseases from being

brought into the country or spread to other countries (quarantine measures),

including provisions regarding measures in respect of persons, animals,

means of transport, goods and objects which may conceivably transmit

– 8 –

communicable diseases. In the regulations the King may also establish

further requirements for examinations, removal of sources of contagion and

documentation in connection with entry into and departure from Norway and

in connection with the import and export of goods.

In order to prevent or hinder the spread of COVID-19, the King may issue

regulations governing where and how persons entering Norway shall

undergo quarantine. The King may also issue regulations governing

deductibles for persons in quarantine or their employers or clients to cover

costs of the quarantine stay.

The King may issue regulations governing procedural rules for decisions

taken pursuant to regulations under the second paragraph. In that

connection, exceptions may be made from Chapters IV, V and VI of the Public

Administration Act (forvaltningsloven).

17 Section 4-3a of the CCDA conferred authority to enact rules on isolation of infected

persons and rules governing “infection-related quarantine” (smittekarantene) or

“waiting quarantine” (ventekarantene). Infection-related quarantine was directed at

persons having had close contact with an infected or presumably infected person, whilst

waiting quarantine concerned persons living in the same household as a person placed

in infection-related quarantine.

18 Section 8-1 of the CCDA provided that intentional or negligent violation of the act or

measures enacted on the basis of the act constituted a punishable offence.

19 In light of the COVID-19 pandemic, Norway adopted the Regulation on measures for

the control of communicable diseases during the COVID-19 outbreak (“the COVID-19

Regulation”) (forskrift om smitteverntiltak mv. ved koronautbruddet (covid-19-

forskriften)).

20 Letter (a) of the first paragraph of Section 4 of the COVID-19 Regulation read, in

extract:

... persons entering Norway from an area with an obligation to quarantine as

set out in Appendix A shall go into quarantine for a period of 10 days. ...

21 Section 4d of the COVID-19 Regulation contained requirements for testing for SARS-

CoV-2 at border crossings.

22 The first paragraph of Section 5 of the COVID-19 Regulation read:

Persons in entry quarantine shall stay at a quarantine hotel at the first point

of entry in the Kingdom during the period of quarantine.

23 Letters (a) and (c) of the second paragraph of Section 5 of the COVID-19 Regulation

read:

– 9 –

The obligation to stay at a quarantine hotel shall not apply in respect of

persons who fulfil the conditions in Section 4d and who:

a. upon entry, are able to document that they are resident in Norway and

that the travel was necessary, and who stay at the residence or other

suitable location where it is possible to avoid close contact with others,

with a separate bedroom, separate bathroom and separate kitchen or the

possibility of having meals provided. …

c. upon entry, are able to document that they own or rent a permanent

residence in Norway where they can undergo quarantine in a separate

living space with a bedroom, bathroom and kitchen, and that the travel

was necessary. A lease as referred to in the first sentence must have a

minimum duration of six months. …

24 The fifth paragraph of Section 5 of the COVID-19 Regulation read:

Work-related travel will be deemed necessary under letters (a) and (c) of the

second paragraph when confirmation from an employer or client is provided.

For persons who are resident in Norway, see letter (a) of the second

paragraph, and temporarily work abroad, study abroad or are

accompanying members of the household of persons who work or study

abroad, travel into and out of Norway during the period they are based

abroad shall be considered necessary. Travel will also be necessary if it is

justified on compelling welfare-related grounds such as spending time with

minor children, visiting close relatives who are seriously ill or dying, or

attendance at the burials or funerals of close relatives.

25 The seventh paragraph of Section 5 of the COVID-19 Regulation read:

Persons in entry quarantine may only be outside their place of residence if

they can avoid close contact with people other than those with whom they

reside. Persons in quarantine may not be at a workplace where other persons

are also present, or at schools or kindergartens. The use of public transport

is not permitted.

26 The first paragraph of Section 22 of the COVID-19 Regulation read:

Individuals staying at a quarantine hotel during the quarantine period under

Section 5 shall pay a deductible of NOK 500 per day. If a person has an

employer or client in Norway, that party shall pay the deductible of NOK 500

per day.

27 Further rules on the quarantine hotels system were set out in the Revised Circular on

quarantine hotels (G-2021-12) of 27 March 2021. Point 4 of the Circular contained

some guidance on compliance checks at quarantine hotels. Point 4(h) of the Circular

stated that the municipality, in cooperation with the hotel, had to establish a control

– 10 –

system to ensure that those in quarantine complied with the guidelines and stayed at the

hotel. If a breach of the quarantine obligation was revealed, the police were to be

contacted to consider potential criminal sanctions. It was also stated therein that the use

of coercion in the implementation of the quarantine hotel scheme was not permitted.

28 Point 19 of Council Recommendation (EU) 2020/1475 of 13 October 2020 on a

coordinated approach to the restriction of free movement in response to the COVID-19

pandemic (OJ 2020 L 337, p. 3) read as follows:

Travellers with an essential function or need should not be required to

undergo quarantine while exercising this essential function, in particular:

(a) Workers or self-employed persons exercising critical occupations

including health care workers, frontier and posted workers as well as

seasonal workers as referred to in the Guidelines concerning the exercise of

the free movement of workers during the COVID-19 outbreak;

(b) transport workers or transport service providers, including drivers of

freight vehicles carrying goods for use in the territory as well as those merely

transiting;

(c) patients travelling for imperative medical reasons;

(d) pupils, students and trainees who travel abroad on a daily basis;

(e) persons travelling for imperative family or business reasons;

(f) diplomats, staff of international organisations and people invited by

international organisations whose physical presence is required for the well-

functioning of these organisations, military personnel and police officers,

and humanitarian aid workers and civil protection personnel in the exercise

of their functions;

(g) passengers in transit;

(h) seafarers;

(i) journalists, when performing their duties.

II Facts and procedure

29 The facts and background of the criminal proceedings against LDL are summarised in

the following manner in the Court of Appeal’s judgment, with references to further

descriptions in Østre Innlandet District Court’s judgment:

The indicted is a Swedish national, but is resident together with his wife at

Bruvoll in Nord-Odal (in Norway). His parents and siblings reside in Sweden.

– 11 –

For about a week from the end of April until the beginning of May 2021, he went

to Sweden to visit his father in Karlstad in Värmland. The reason for the travel,

as well as the further course of events, are described as follows in the District

Court’s judgment:

‘His father was very distraught after his brother (the indicted’ s uncle)

had recently passed away. In Karlstad, the indicted was also together with

his brothers and his father’s cohabiting partner. The indicted was to

return to Norway because he has permanent residence here, where he

resides with his wife.

On the way home, the indicted was stopped at the border at Magnormoen.

He was ordered to the quarantine hotel, but instead, he opted to return

home to undergo the quarantine at home. His wife was in Oslo at that

time, so the indicted considered it acceptable to undergo quarantine at

home. Trysil municipality attempted to contact him by telephone on 2 and

3 May but were unable to reach him.’

30 LDL has resided and worked in Norway since the autumn of 2016.

31 According to the request, Section 4 of the COVID-19 Regulation provided for a general

obligation to quarantine for persons entering Norway from an area with an obligation

to quarantine as set out in Appendix A, but with a certain number of exceptions, which

according to the request, were to be viewed in connection with the recommendations

laid down in point 19 of Council Recommendation (EU) 2020/1475. The obligation to

quarantine was not contingent on an individual decision having been adopted against

the person concerned. Principally, depending on whether or not the travel was to be

deemed necessary under Section 5 of the COVID-19 Regulation, the traveller had to

undergo the period of quarantine at a quarantine hotel. This obligation was also not

contingent on an individual decision having been adopted against the traveller.

32 According to the request, the requirements for the entry quarantine were tightened in

March 2021, by expanding the categories of persons to which the obligation to undergo

entry quarantine at a quarantine hotel applied. Until 18 March 2021, the question of an

obligation to undergo quarantine at a quarantine hotel had been linked to whether the

traveller had a suitable location to undergo quarantine. The amendment entailed that,

from 19 March 2021, the purpose of the travel could trigger the obligation to quarantine

at a quarantine hotel irrespective of whether the traveller had a suitable quarantine

location.

33 Further, the quarantine period could be shortened if the traveller could document a

negative COVID-19 test result. At the material time, such a test could at the earliest be

taken seven days after entry into Norway. Such a test was to be offered to persons

staying at a quarantine hotel. Thus, persons under an obligation to quarantine at a

quarantine hotel under Section 5 of the COVID-19 Regulation had to pay a minimum

deductible for seven days – a total of NOK 3500 – for the stay.

– 12 –

34 As stated in the request, violation of the provisions of the COVID-19 Regulation was

largely subject to criminal sanctions. The threat of criminal sanctions followed from

Section 8-1 of the CCDA, but also from Section 24 of the COVID-19 Regulation.

Section 24 of the COVID-19 Regulation provided that intentional or grossly negligent

violation of Section 5 of the COVID-19 Regulation – the obligation to undergo the stay

at a quarantine hotel – was punishable by fine or imprisonment up to six months.

35 On 25 June 2021, the Chief of Police of Innlandet County (Politimesteren i Innlandet)

issued LDL with an optional penalty writ (forelegg) for violation of Section 7-12 of the

CCDA, read in conjunction with Section 24 of the COVID-19 Regulation and Section

4-3 of the CCDA, read in conjunction with a combined reading of Sections 4 and 5 of

the COVID-19 Regulation. The grounds for the penalty writ were described as follows:

Sunday 2 May 2021, at around 20:00, he entered Norway via Magnormoen.

Under the applicable provisions on control of communicable diseases, he was to

stay at a quarantine hotel, and a room was organised at Kjølen hotel, but despite

of this he never presented himself at Kjølen hotel.

36 LDL did not accept the optional penalty writ and the case was referred to Østre

Innlandet District Court for judgment.

37 On 28 February 2022, Østre Innlandet District Court delivered judgment in which LDL

was convicted as charged in the optional penalty writ and ordered to pay a fine of NOK

24 000 and costs in favour of the State of NOK 4 000.

38 The District Court held that the rules on quarantine hotels were not contrary to the

CCDA, the Constitution (Grunnloven) or the European Convention on Human Rights

(“ECHR”). Accordingly, in the District Court’s view, the order for a quarantine hotel

was valid, with the result that LDL could be sanctioned for failing to undergo the

quarantine period at a quarantine hotel. The District Court did not, however, consider

whether the rules on quarantine hotels were compliant with Directive 2004/38 or the

EEA Agreement.

39 LDL appealed to Eidsivating Court of Appeal on the point of the application of the law

concerning the question of guilt. By decision of Eidsivating Court of Appeal of 29 April

2022, the appeal was referred to appeal proceedings.

40 Subsequently, on 6 July 2022, Eidsivating Court of Appeal delivered judgment in the

case. In the judgment, the Court of Appeal considered whether the rules on quarantine

hotels were contrary to EEA law but concluded that they were not. The Court of Appeal

further held, as the District Court had held previously, that the rules were not contrary

to the CCDA, the Constitution or the ECHR, and accordingly concluded that the rules

were valid. Thus, LDL’s appeal was dismissed.

41 LDL appealed to the Supreme Court on the points of the application of the law

concerning the question of guilt and the procedure before the Court of Appeal. By

decision of 25 November 2022 of the Appeals Selection Committee of the Supreme

– 13 –

Court (Høyesteretts ankeutvalg), LDL was granted leave to appeal “on the point of the

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 [CCDA], the Constitution, the

European Convention on Human Rights or EEA law”. Leave to appeal was refused as

to the remainder.

42 Against this background, the Supreme Court of Norway decided to refer the following

questions to the Court:

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

– 14 –

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 the parties

concerned 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?

43 Reference is made to the Report for the Hearing for a fuller account of the legal

framework, the facts, the procedure and the proposed answers submitted to the Court.

Arguments of the parties are mentioned or discussed hereinafter only insofar as is

necessary for the reasoning of the Court.

III Answer of the Court

Questions 1, 2 and 3

44 By its first question, the referring court asks, in essence, under which provisions of the

Directive the restriction related questions in this case should be examined. By its second

question, the referring court asks, in essence, whether Articles 28 or 36 EEA provide

more extensive rights than the Directive for an individual such as LDL to enter and

reside in Norway. Furthermore, by its third question, the referring court asks, in essence,

if the answer to the second question is in the affirmative, whether an examination of

Article 36 EEA is material in circumstances such as in the main proceedings if a

restriction of Article 28 EEA may be justified. The Court finds it appropriate to answer

these questions together.

– 15 –

45 In order to determine whether national legislation falls within the scope of one or other

of the fundamental freedoms guaranteed by the EEA Agreement, it is clear from

established case law that the purpose of the legislation concerned must be taken into

consideration. Moreover, in principle, a measure in dispute will be examined only in

relation to one of those two freedoms if it appears, in the circumstances of the case, that

one of them is entirely secondary in relation to the other and may be considered together

with it. Furthermore, the Court takes account of the facts of the individual case in order

to determine whether the situation to which the dispute in the main proceedings relates

falls within the scope of one or another of those provisions (see Joined Cases E-3/13

and E-20/13 Olsen and Others [2014] EFTA Ct. Rep. 400, paragraphs 111, 112 and 117

and case law cited).

46 It follows from the request that the purpose of the measure in the main proceedings,

which concerned an obligation to undergo a period of quarantine at a quarantine hotel

for persons entering Norway from specified areas abroad, including from within the

EEA, was to protect public health, and the measure was one of numerous measures

which sought to control COVID-19.

47 The Court recalls that any EEA national who exercises the right of freedom of

movement to seek employment, or has been employed in an EEA State other than that

of residence, falls within the scope of Article 28 EEA (see Case E-4/19 Campbell,

judgment of 13 May 2020, paragraph 50 and case law cited). The same applies to those

EEA nationals who have taken up employment and residence in an EEA State other

than that of their origin.

48 Accordingly, a factual situation such as the one giving rise to the dispute in the main

proceedings comes, in principle, within the scope of Article 28 EEA, which secures

freedom of movement for workers, and Article 7(1)(a) of the Directive, given that LDL,

who is a Swedish national, resides in Norway and pursues an activity there as an

employed person.

49 The Court observes that the purpose of the Directive, as may be seen from recitals 1 to

4 thereof, is to facilitate the exercise of the primary and individual right to move and

reside freely within the territory of the EEA States (compare the judgment in Coman

and Others, C-673/16, EU:C:2018:385, paragraph 18 and case law cited). However,

this right is not unconditional and may be subject to the limitations and conditions

imposed by the EEA Agreement and by the measures adopted to give it effect (compare

the judgment in Orfanopoulos and Oliveri, C-482/01 and C-493/01, EU:C:2004:262,

paragraph 47).

50 As regards the limitations and conditions laid down by the EEA Agreement and the

measures adopted to give it effect, it is important in this case to note particularly the

provisions of the Directive. In circumstances such as those of the main proceedings,

neither Article 28 EEA nor Article 36 EEA provides for a more extensive right for an

individual such as LDL to enter and reside in Norway than the Directive.

– 16 –

51 As set out in its Article 1, the Directive lays down the conditions governing the exercise

of the right of free movement and residence within the territory of the EEA States by

EEA nationals and their family members, their right of permanent residence in the

territory of an EEA State and the limits placed on these rights on grounds of public

policy, public security or public health. The objective of the Directive is to facilitate

and strengthen the exercise of the primary and individual right to move and reside freely

within the territory of the EEA States. Since the freedom of movement for persons is

one of the foundations of the Directive, any limitations to that freedom must be

interpreted strictly. In the light of the context and the aims pursued by the Directive, the

provisions of that directive cannot be interpreted restrictively, and must not in any event

be deprived of their practical effect (see Campbell, cited above, paragraph 57 and case

law cited).

52 In that regard, it should be recalled that, under Article 27(1) of the Directive, which falls

within Chapter VI of that directive, entitled “Restrictions on the right of entry and the

right of residence on grounds of public policy, public security and public health”, and

gives concrete expression to Article 1(c) thereof, EEA States may, subject to the

provisions of that chapter, restrict the freedom of movement and residence of EEA

nationals and their family members, irrespective of nationality, on grounds of public

policy, public security or public health, provided that those grounds are not invoked to

serve economic ends (compare the judgment in Nordic Info, C-128/22, EU:C:2023:951,

paragraph 50).

53 It must further be recalled that any interpretation of the Directive must be exercised in

the light of and in line with fundamental rights and freedoms. It should be added that

recital 5 of the Directive links the derived family rights to the EEA national’s freedom

and dignity while recital 6 confirms that “maintaining the unity of the family in a

broader sense” is one of the objectives of the Directive (see Case E-1/20 Kerim,

judgment of 9 February 2021, paragraph 42 and case law cited).

54 It is settled case law that fundamental rights form part of the general principles of EEA

law. The Court has held that the provisions of the ECHR and the judgments of the

European Court of Human Rights (“ECtHR”) are important sources for determining the

scope of these fundamental rights. In that regard, it must be noted that the EEA States,

in particular their courts, must not only interpret their national law in a manner

consistent with EEA law but are also under an obligation to ensure that the interpretation

and application of acts incorporated into the EEA Agreement does not result in a

conflict with fundamental rights protected by EEA law (see Kerim, cited above,

paragraph 43 and case law cited).

55 The right to leave the territory of an EEA State to travel to another EEA State (“right of

exit”) and the right to be admitted to the territory of an EEA State (“right of entry”)

form part of the freedom of movement, which is apparent from a reading of Article 1(a)

of the Directive in conjunction with Articles 4 and 5 (compare the judgment in Nordic

Info, cited above, paragraph 55). In general, since the hotel quarantine obligation, at

issue in the main proceedings, concerned persons entering Norway, it affected the right

of entry provided by Article 5 of the Directive and for those who aimed to return to

– 17 –

Norway after leaving, it also affected the right of exit provided by Article 4 of the

Directive.

56 According to the request, LDL is a Swedish national, who had been residing and

working in Norway for a period of more than three months. For a person such as LDL

an obligation to quarantine in a quarantine hotel affected the conditions under which he

could travel to another EEA State and return to his place of residence. Therefore, in the

circumstances of the main proceedings, the measure in dispute affected how LDL could

exercise his right of residence pursuant to Article 7(1)(a) of the Directive. In

circumstances such as those of the main proceedings, it is not necessary to examine

Articles 4 and 5 of the Directive. In this respect, the Court notes that, regardless of

which provision of the Directive may be applicable in a concrete case, any restriction

of the freedom of movement and residence under the Directive must comply with the

requirements laid down in Chapter VI of the Directive. Furthermore, the interpretation

of the Directive must be exercised in the light of and in line with fundamental rights

and freedoms that form part of the general principles of EEA law.

57 Due to the applicability of Article 7 of the Directive and, in particular, the circumstances

set out in the request, there is no need to examine Article 28 EEA separately (see, to

that effect, Case E-26/13 Gunnarsson [2014] EFTA Ct. Rep. 254, paragraph 93).

58 In light of the above, the answer to the first question must be that a restrictive measure,

under circumstances such as those in the main proceedings, is to be examined with

regard to the right of residence in Article 7(1)(a) of the Directive. Any interpretation of

that Directive must be exercised in the light of and in line with fundamental rights and

freedoms that form part of the general principles of EEA law. The answer to the second

question must be that, in circumstances such as those of the main proceedings, neither

Article 28 EEA nor Article 36 EEA provides for a more extensive right for an individual

such as LDL to enter and reside in an EEA State such as Norway than the Directive.

Due to the applicability of Article 7(1)(a) of the Directive and the particular

circumstances set out in the request there is no need to examine Article 28 EEA

separately. The answer to the third question must be that, in principle, a measure in

dispute is examined only in relation to one of two freedoms if it appears, in the

circumstances of the case, that one of them is entirely secondary in relation to the other

and may be considered together with it. In the circumstances set out in the request, the

right to receive services as a traveller in another EEA State under Article 36 EEA is

entirely secondary to the right of free movement of workers.

Questions 4 and 9

59 By its fourth question, the referring court asks, in essence, whether Chapter VI of the

Directive allows for the introduction of restrictions on rights under that directive in the

form of regulations of general application with the objective of safeguarding public

health. Furthermore, by its ninth question, the referring court asks, in essence, what are

the implications for the assessment of the restrictions if Articles 30 and 31 of the

Directive, which, inter alia, concern safeguards for individual legal certainty, are

applicable, but were potentially not fulfilled. Considering that Articles 30 and 31 of the

– 18 –

Directive are part of Chapter VI, the Court finds it appropriate to examine these

questions together.

60 With regard to measures restricting the rights under the Directive with the objective of

safeguarding public health, first, the conditions set out in Articles 27 and 29 of the

Directive must be observed. The Court recalls that, pursuant to Article 27(1) of the

Directive, EEA States may, subject to the provisions of Chapter VI, restrict the freedom

of movement and residence of EEA nationals and their family members, irrespective of

nationality, on grounds of public policy, public security or public health, provided that

those grounds are not invoked to serve economic ends.

61 Article 29(1) of the Directive, which is devoted more specifically to measures restricting

freedom of movement on public health grounds, provides that only certain diseases,

namely diseases with epidemic potential as defined by the relevant instruments of the

WHO and other infectious diseases or contagious parasitic diseases, may justify such

measures, provided that they are the subject of protection provisions applying to

nationals of the host EEA State, that is to say, in accordance with point 3 of Article 2

of the Directive, the EEA State to which an EEA national moves in order to exercise

his or her right of free movement and residence (compare the judgment in Nordic Info,

cited above, paragraph 51).

62 It is apparent from the wording of Articles 27(1) and 29(1) of the Directive that an EEA

State may, for non-economic ends and in compliance with the conditions laid down in

Chapter VI of the Directive, adopt such measures solely on account of certain diseases

which are the subject of protection provisions applying to its own nationals, namely

diseases with epidemic potential as defined by the relevant instruments of the WHO or

other infectious diseases or contagious parasitic diseases. Therefore, a fortiori, EEA

States in that context may adopt on the basis of those provisions measures restricting

freedom of movement in order to respond to a threat linked to a contagious infectious

disease which is of a pandemic nature recognised by the WHO (compare the judgment

in Nordic Info, cited above, paragraphs 52 and 53).

63 According to the request and subject to verification by the referring court, the measures

in the main proceedings were adopted not to serve economic ends, but in order to protect

the population and to prevent the spread of the infectious and contagious COVID-19

disease in Norway, which had been classified as a pandemic by the WHO on 11 March

2020 and was still classified as such during the period at issue in the main proceedings.

Subject to that reservation, the conditions set out in Article 29(1) of the Directive appear

to be fulfilled.

64 The scope of Article 27(1) and Article 29(1) of the Directive is not restricted to the right

of entry, but covers all components of the freedom of movement (compare the judgment

in Nordic Info, cited above, paragraphs 56 and 57).

65 It follows from established case law that all measures which prohibit, impede or render

less attractive the exercise of the freedom of movement of EEA nationals and their

– 19 –

family members must be regarded as “restrictions” on that freedom (compare the

judgment in Nordic Info, cited above, paragraph 58 and case law cited).

66 Measures restricting freedom of movement which an EEA State may adopt on public

health grounds under Article 27(1) and Article 29(1) of the Directive may also include

measures which have the effect of impeding or rendering less attractive the right of the

persons concerned to enter or leave that territory, such as an obligation for travellers

entering that territory to undergo screening tests and to observe quarantine (compare

the judgment in Nordic Info, cited above, paragraph 59).

67 Unlike Article 27(2) of the Directive in relation to measures taken on grounds of public

policy or public security, neither Article 27(1) nor Article 29(1) of the Directive

precludes measures adopted on public health grounds from being laid down in the form

of an act of general application. While the terms and expressions used in Articles 30 to

32 of the Directive call to mind restrictive measures laid down in the form of an

individual decision, they do not prevent restrictive measures adopted in accordance with

Articles 27(1) and 29(1) on public health grounds being laid down in the form of an act

of general application. Hence, restrictions based on grounds of public health may,

depending on the circumstances and in particular the health situation, be adopted in the

form of an act of general application which applies without distinction to any person in

a situation covered by that act (compare the judgment in Nordic Info, cited above,

paragraphs 63, 66 and 70).

68 However, the conditions and safeguards set out in Chapter VI, in particular in Articles

30 to 32, must also be applied in the case of restrictive measures adopted in the form of

an act of general application. All of the conditions and safeguards laid down in Articles

30 to 32 of the Directive give effect to the principle of legal certainty, the principle of

good administration and the right to an effective judicial remedy; those principles and

that right apply to restrictive measures adopted both in the form of individual decisions

and in the form of acts of general application (compare the judgment in Nordic Info,

cited above, paragraphs 65, 67 and 70). Having regard to Article 30(1) and (2) of the

Directive, any act of general application laying down measures restricting freedom of

movement on public health grounds must be brought to the attention of the public by

an official publication of the EEA State which adopts it and by means of sufficient

official media coverage so that the content and effects of that act can be understood, as

well as the specific and full public health grounds relied on in support of that act, and

that the remedies and time limits for challenging it are specified (compare the judgment

in Nordic Info, cited above, paragraph 71). It is for the referring court to assess having

regard to all the information that was available to the persons concerned at the material

time whether the act in question fulfilled this requirement.

69 Furthermore, in order to comply with the procedural safeguards referred to in Article

31 of the Directive, the act of general application must be open to challenge in judicial

and, where appropriate, administrative redress procedures. In that regard, where

national law does not allow persons covered by a situation defined in general terms by

that act to challenge the validity of such an act directly in an independent action, it must

at least provide for the possibility of challenging that validity incidentally in an action

– 20 –

the outcome of which depends on whether that act is valid (compare the judgment in

Nordic Info, cited above, paragraph 72).

70 In addition, an individual cannot be forced to be subject to criminal proceedings and to

any penalties that may result as the sole form of legal remedy for disputing the

compatibility of the national provision at issue with EEA law. Such a sole avenue would

not be sufficient to secure the effective judicial protection required by EEA law

(compare the judgment in Unibet, C-432/05, EU:C:2007:163, paragraph 64). It is for

the referring court to determine whether national law provided sufficient safeguards in

this regard.

71 Moreover, it follows from Article 30(3) of the Directive that the public must be

informed, either in the act itself or by means of official publications or websites which

are free of charge and easily accessible, of the court or administrative authority before

which the act of general application may, where applicable, be challenged and of the

time limits for the respective challenges (compare the judgment in Nordic Info, cited

above, paragraph 73).

72 With regard to the question concerning implications for the restrictions in the event that

Articles 30 and 31 of the Directive have been infringed, it must be observed that the

safeguards contained in those Articles have different objectives. The aim of the

notification requirements in Article 30 is to put the individual in a position where he or

she may effectively consider whether any restrictions actually apply, so that he or she

may avoid breaching any decision taken against him or her. Accordingly, this

requirement is inherently linked with the decision restricting the rights under the

Directive, irrespective of whether it takes the form of an individual decision or an act

of general application. Moreover, a decision to penalise a person for breaching a

decision which does not fulfil the requirements of Article 30 of the Directive would be

liable to infringe the fundamental requirements of accessibility and foreseeability

protected by the general EEA principles of legal certainty and proportionality and

Article 7 of the ECHR. Conversely, the procedural safeguards in Article 31 of the

Directive aim to secure effective redress procedures after a decision has been taken

against a person or when it is claimed that a person has breached any decisions taken

against him or her. Such subsequent judicial and/or administrative redress procedures

are fundamental for ensuring the effective protection of substantive EEA rights. In this

context, it must be borne in mind that national courts are bound under the principle of

sincere cooperation in Article 3 EEA, for the matters within their jurisdiction, to ensure

the full effectiveness of EEA law when they determine the disputes before them (see

Case E-2/21 Norep AS, judgment of 14 December 2021, paragraph 43).

73 In light of the above, the answer to the fourth question must be that restrictions based

on grounds of public health may, depending on the circumstances and in particular the

health situation, be adopted in the form of an act of general application which applies

to any person in a situation covered by that act, while the conditions and safeguards laid

down in Articles 30 and 31 of the Directive must be applied in the case of restrictive

measures adopted in this form. The answer to the ninth question must be that when

– 21 –

considering whether the restrictions are justified, it must be verified whether the

procedural guarantees in Articles 30 and 31 of the Directive have been fulfilled.

Questions 5, 6, 7, 8, 10 and 11

74 By its fifth question, the referring court asks, in essence, whether it is of relevance for

the suitability of the measures that only certain groups had to go to a quarantine hotel,

if the authorities are free to determine the degree of protection and the adoption of even

more invasive measures, such as the total or partial closure of the borders, or a

requirement that all travellers undergo the period of quarantine in a quarantine hotel,

are not precluded by EEA law.

75 By its sixth question, the referring court enquires, in essence, whether it is of relevance

for the suitability of the measures, as regards their consistency, 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, 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.

76 Furthermore, by its seventh question, the referring court seeks guidance, in essence, as

to the relevance of the need to introduce general and simple rules which can be easily

understood and applied by parties concerned and easily managed and supervised for

compliance by the authorities in a pandemic situation.

77 By its eighth question, the referring court asks, in essence, whether it is compatible with

the requirement to pursue legitimate aims 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.

78 Finally, by its tenth and eleventh questions, the referring court seeks guidance as to

whether the requirement of proportionality in the narrow sense of the term (stricto

sensu) applies in the case at hand and, if so, the legal content and the legal subject-

matter to be examined in the present case.

79 The Court finds it appropriate to answer these questions together since they all concern

aspects of the justification of the measure in question in the main proceedings with

regard to the principle of proportionality.

80 Article 31(1) and (3) of the Directive provides that the persons concerned must have

access to judicial and, where appropriate, administrative redress procedures in the host

EEA State to challenge, inter alia, the proportionality of a decision taken against them

on grounds of public health (compare the judgment in Nordic Info, cited above,

paragraph 75).

81 It follows, inter alia, from these provisions that any measure restricting freedom of

movement adopted on public health grounds on the basis of Article 27(1) and Article

29(1) of the Directive must be proportionate. The principle of proportionality, having

– 22 –

its foundations in the protection of fundamental rights and freedoms, constitutes a

general principle of EEA law and is binding on EEA States when they are implementing

an act such as the Directive (see, to that effect, Case E-2/20 Norway v L, judgment of

21 April 2021, paragraphs 50 and 54 and case law cited, and compare the judgment in

Nordic Info, cited above, paragraph 76).

82 The requirement of proportionality specifically requires verification that measures such

as those at issue in the main proceedings, first, are appropriate for attaining the objective

pursued, in this case the protection of public health, second, are limited to what is

strictly necessary, in the sense that that objective could not reasonably be achieved in

an equally effective manner by other means less prejudicial to the rights and freedoms

guaranteed to the persons concerned, and, third, are not disproportionate to that

objective, which implies, in particular, a balancing of the importance of the objective

and the seriousness of the interference with those rights and freedoms (see, to that effect,

Case E-8/20 Criminal proceedings against N, judgment of 5 May 2021, paragraphs 91,

93, 94 and 95 and case law cited, and compare the judgment in Nordic Info, cited above,

paragraph 77).

83 In order to assess whether an EEA State has observed the principle of proportionality

in the area of public health, account must be taken of the fact that the health and life of

humans rank foremost among the assets and interests protected by EEA law and that it

is for the EEA States to determine the degree of protection which they wish to afford to

public health and the way in which that degree of protection is to be achieved. Since

that level may vary from one EEA State to another, EEA States should be allowed some

measure of discretion. Consequently, the fact that one EEA State imposes less strict

rules than another EEA State does not mean that the latter’s rules are disproportionate

(see Case E-16/10 Philip Morris [2011] EFTA Ct. Rep. 330, paragraph 80 and case law

cited, and compare the judgment in Nordic Info, cited above, paragraph 78 and case law

cited).

84 If there is uncertainty as to the existence or extent of risks to human health, an EEA

State must be able, under the precautionary principle, to take protective measures

without having to wait until the reality of those risks becomes fully apparent. In

particular, EEA States must be able to take any measure capable of reducing, as far as

possible, a health risk (see Case E-9/16 ESA v Norway [2017] EFTA Ct. Rep. 299,

paragraph 77 and case law cited, and compare the judgment in Nordic Info, cited above,

paragraph 79 and case law cited).

85 Furthermore, when imposing restrictive measures on public health grounds, EEA States

must be able to adduce appropriate evidence to show that they have indeed carried out

an analysis of the appropriateness, necessity and proportionality of the measures at issue

and to present any other evidence substantiating their arguments. Such a burden of proof

cannot, however, extend to creating the requirement that the competent national

authorities must prove, positively, that no other conceivable measure could enable the

legitimate objective pursued to be attained under the same conditions (compare the

judgment in Nordic Info, cited above, paragraph 80 and case law cited).

– 23 –

86 It is for the referring court, which has sole jurisdiction to assess the facts of the main

proceedings and interpret the national legislation, to verify, in accordance with the rules

of evidence of national law, provided the effectiveness of EEA law is not undermined,

whether the restrictive measures in question satisfied the requirement of proportionality.

However, the Court may, where appropriate, provide clarification designed to give the

national court guidance in its interpretation (see Kerim, cited above, paragraph 52 and

case law cited).

87 Concerning the appropriateness of such measures for attaining the objective of

protecting public health in the context of a disease classified as a pandemic by the

WHO, the referring court will have to ascertain whether, in the light of the scientific

data commonly accepted at the material time concerning COVID-19, of the trend in

cases of infection and mortality due to that virus and in view of the degree of uncertainty

that might prevail in that regard, the adoption of those measures and the criteria for their

implementation were appropriate, having regard to the national healthcare system being

overwhelmed or the risk thereof (compare the judgment in Nordic Info, cited above,

paragraph 82 and case law cited). Hence, for attaining the objective of protecting public

health in this context the measure of general application must have due regard to the

considerations of the risk to human health due to infection.

88 The referring court will also have to take into account the fact that the restrictive

measures at issue in the main proceedings were adopted in the context of similar

measures adopted by the other EEA States (compare the judgment in Nordic Info, cited

above, paragraph 83 and case law cited).

89 The Court also recalls that restrictive measures such as those at issue in the main

proceedings can be regarded as capable of ensuring the public health objective pursued

only if they genuinely reflect a concern to attain it and are implemented in a consistent

and systematic manner (see Criminal proceedings against N, cited above, paragraph 93

and case law cited and compare, to that effect, the judgment in Nordic Info, cited above,

paragraph 84 and case law cited).

90 In this regard the Court underlines that deterring people from travelling abroad cannot

be a legitimate aim in itself but may be a justifiable means to achieve the public health

objective to reduce the total infection pressure in a situation such as that at issue in the

main proceedings.

91 Furthermore, the referring court will have to ascertain whether the abovementioned

restrictive measures were limited to what was strictly necessary and whether there were

means less prejudicial to the free movement of persons but equally effective for

achieving the public health objective (see Criminal proceedings against N, cited above,

paragraph 94 and case law cited, and compare the judgment in Nordic Info, cited above,

paragraph 87).

92 With regard to the assessment whether measures that were less restrictive but equally

effective existed, it is necessary to take into account the measure of discretion enjoyed

by the EEA States in the field of the protection of public health, on account of the

– 24 –

precautionary principle, as already mentioned (compare the judgment in Nordic Info,

cited above, paragraph 90). Given this, there is the possibility to take protective

measures when scientific investigation has identified a plausible risk and corresponding

strategies capable of reducing the health risk.

93 Moreover, according to settled case law, EEA States cannot be denied the possibility of

attaining an objective such as the protection of public health by the introduction of

general and simple rules which will be easily understood and applied by individuals and

easily managed and supervised by the competent authorities (compare, to that effect,

the judgments in Commission v Italy, C-110/05, EU:C:2009:66, paragraph 67; and

Commission v Portugal, C-126/15, EU:C:2017:504, paragraph 84). Particularly in the

context of a pandemic and with regard to the legal safeguards required by Article 30 of

the Directive, such considerations may become increasingly important for achieving the

public health objective. That said, such general and simple rules must comply with the

general principles of EEA law including the principles of proportionality and legal

certainty. The Court observes that, in general, an increased financial burden and

administrative difficulties do not constitute grounds that can justify a restriction on a

fundamental freedom guaranteed by EEA law (compare the judgments in Airbnb

Ireland and Airbnb Payments UK, C-83/21, EU:C:2022:1018, paragraph 74 and case

law cited, and Gottardo, C-55/00, EU:C:2002:16, paragraph 38).

94 As regards the question of proportionality in the strict sense, the referring court will

have to ascertain whether the measures at issue were disproportionate in relation to the

public health objective pursued, having regard to the impact that those measures may

have had on the free movement of EEA nationals and their family members and on

fundamental rights which form part of the general principles of EEA law. The Court

has held that the provisions of the ECHR, such as Article 8(1), the right to respect for

private and family life, and the judgments of the ECtHR are important sources for

determining the scope of these fundamental rights. In this respect, the Court notes that

in their written observations, the Norwegian Prosecution Authority and the Norwegian

Government have referred to the positive obligation under Article 2 ECHR, which

safeguards the right to life, to protect human life and health, as also noted by the

Commission at the hearing. Furthermore, it follows from the request that the preparatory

works to the COVID-19 Regulation explicitly refer to the State’s duty to implement

measures to safeguard the right to life and health protected by, inter alia, Article 2(1)

ECHR. In addition, ESA referred, in its written observations, to Article 5 ECHR, which

enshrines the right to liberty and security. In that regard, it must be noted that the EEA

States, in particular their courts, must not only interpret their national law in a manner

consistent with EEA law but are also under an obligation to ensure that the interpretation

and application of acts incorporated into the EEA Agreement does not result in a

conflict with fundamental rights protected by EEA law (see Kerim, cited above,

paragraph 43 and case law cited, and compare the judgment in Nordic Info, cited above,

paragraph 92).

95 Hence, the objective of protecting public health referred to in Articles 27(1) and 29(1)

of the Directive may not be pursued by a national measure without having regard to the

fact that the national measure must be reconciled with the fundamental rights and

– 25 –

principles affected by that measure, by properly balancing that objective of general

interest against the rights and principles at issue, in order to ensure that the

disadvantages caused by that measure are not disproportionate to the aims pursued.

Moreover, the question of whether a limitation on free movement may be justified must

be assessed by measuring the seriousness of the interference which such a limitation

entails, and by verifying that the importance of the objective of general interest pursued

by that limitation is proportionate to that seriousness (see, to that effect, Norway v L,

cited above, paragraphs 50 to 54 and case law cited, and compare the judgment in

Nordic Info, cited above, paragraph 93 and case law cited).

96 In light of the above, the answer to the fifth and sixth questions must be that if there is

uncertainty as to the existence or extent of risks to human health, an EEA State must be

able to take protective measures, in accordance with the precautionary principle,

without having to wait until the reality of those risks becomes fully apparent and, in

particular, EEA States must be able to take any measure capable of reducing, as far as

possible, a health risk for attaining the objective of protecting public health. Restrictive

measures such as those at issue in the main proceedings may be regarded as capable of

ensuring the public health objective pursued only if they genuinely reflect a concern to

attain it and are implemented in a consistent and systematic manner. The referring court

will have to ascertain whether the abovementioned restrictive measures were limited to

what was strictly necessary and whether there were means less prejudicial to the free

movement of persons but equally effective for achieving the public health objective.

97 The answer to the seventh question must be that EEA States cannot be denied the

possibility of attaining the objective of protecting public health by the introduction of

general and simple rules which will be easily understood and applied by individuals and

easily managed and supervised by the competent authorities. Such general and simple

rules must comply with the general principles of EEA law including the principles of

proportionality and legal certainty. In general, an increased financial burden and

administrative difficulties do not constitute grounds that can justify a restriction on a

fundamental freedom guaranteed by EEA law.

98 The answer to the eighth question must be that in light of the freedom of movement

deterring people from travelling abroad cannot be a legitimate aim in itself, but may be

a justifiable means to achieve the public health objective to reduce the total infection

pressure in a situation such as that at issue in the main proceedings.

99 The answer to the tenth and eleventh questions must be that, as regards the question of

proportionality in the strict sense, the referring court must ascertain whether the

measures were disproportionate in relation to the public health objective pursued,

having regard to the impact that those measures may have had on free movement and

fundamental rights being part of the general principles of EEA law. Hence, the objective

of protecting public health referred to in Articles 27(1) and 29(1) of the Directive may

not be pursued by a national measure without having regard to the fact that the national

measure must be reconciled with the fundamental rights and principles affected by that

measure. In addition, the objective of general interest must be properly balanced against

the rights and principles at issue, in order to ensure that the disadvantages caused by

– 26 –

that measure are not disproportionate to the aims pursued. Moreover, the question of

whether a limitation on free movement and fundamental rights may be justified must be

assessed by measuring the seriousness of the interference which such a limitation entails

and by verifying that the importance of the objective of general interest pursued by that

limitation is proportionate to that seriousness.

IV Costs

100 Since these proceedings are a step in the proceedings pending before the Norwegian

Supreme Court, any decision on costs for the parties to those proceedings is a matter

for that court. Costs incurred in submitting observations to the Court, other than the

costs of those parties, are not recoverable.

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On those grounds,

THE COURT

in answer to the questions referred to it by the Norwegian Supreme Court hereby gives

the following Advisory Opinion:

1. A restrictive measure, under circumstances such as those of the

main proceedings, is to be examined with regard to the right of

residence in Article 7(1)(a) of 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. Any interpretation

of that Directive must be exercised in the light of and in line with

fundamental rights and freedoms that form part of the general

principles of EEA law.

2. In circumstances such as those of the main proceedings, neither

Article 28 EEA nor Article 36 EEA provides for a more extensive

right for an individual such as LDL to enter and reside in an EEA

State such as Norway than Directive 2004/38/EC. Due to the

applicability of Article 7(1)(a) of Directive 2004/38/EC and the

particular circumstances set out in the request there is no need to

examine Article 28 EEA separately.

3. In principle, a measure in dispute is examined only in relation to one

of two freedoms if it appears, in the circumstances of the case, that

one of them is entirely secondary in relation to the other and may be

considered together with it. In the circumstances set out in the

request, the right to receive services as a traveller in another EEA

State under Article 36 EEA is entirely secondary to the right of free

movement of workers.

4. Restrictions based on grounds of public health may, depending on

the circumstances and in particular the health situation, be adopted

in the form of an act of general application which applies without

distinction to any person in a situation covered by that act, while the

conditions and safeguards laid down in Articles 30 and 31 of

Directive 2004/38/EC must be applied in the case of restrictive

measures adopted in this form.

5. When considering whether the restrictions at issue are justified it

must be verified whether the procedural guarantees in Articles 30

and 31 of Directive 2004/38/EC have been fulfilled.

6. If there is uncertainty as to the existence or extent of risks to human

health, an EEA State must be able to take protective measures, in

– 28 –

accordance with the precautionary principle, without having to wait

until the reality of those risks becomes fully apparent and, in

particular, EEA States must be able to take any measure capable of

reducing, as far as possible, a health risk for attaining the objective

of protecting public health. Restrictive measures such as those at

issue in the main proceedings may be regarded as capable of

ensuring the public health objective pursued only if they genuinely

reflect a concern to attain it and are implemented in a consistent and

systematic manner. The referring court will have to ascertain

whether the abovementioned restrictive measures were limited to

what was strictly necessary and whether there were means less

prejudicial to the free movement of persons but equally effective for

achieving the public health objective.

7. EEA States cannot be denied the possibility of attaining the

objective of protecting public health by the introduction of general

and simple rules which will be easily understood and applied by

individuals and easily managed and supervised by the competent

authorities. Such general and simple rules must comply with the

general principles of EEA law including the principles of

proportionality and legal certainty. In general, an increased

financial burden and administrative difficulties do not constitute

grounds that can justify a restriction on a fundamental freedom

guaranteed by EEA law.

8. In light of the freedom of movement deterring people from

travelling abroad cannot be a legitimate aim in itself, but may be a

justifiable means to achieve the public health objective to reduce the

total infection pressure in a situation such as that at issue in the main

proceedings.

9. As regards the question of proportionality in the strict sense, the

referring court must ascertain whether the measures were

disproportionate in relation to the public health objective pursued,

having regard to the impact that those measures may have had on

free movement and fundamental rights being part of the general

principles of EEA law. Hence, the objective of protecting public

health referred to in Articles 27(1) and 29(1) of Directive

2004/38/EC may not be pursued by a national measure without

having regard to the fact that the national measure must be

reconciled with the fundamental rights and principles affected by

that measure. In addition, the objective of general interest must be

properly balanced against the rights and principles at issue, in order

to ensure that the disadvantages caused by that measure are not

disproportionate to the aims pursued. Moreover, the question of

whether a limitation on free movement and fundamental rights may

be justified must be assessed by measuring the seriousness of the

– 29 –

interference which such a limitation entails and by verifying that the

importance of the objective of general interest pursued by that

limitation is proportionate to that seriousness.

Bernd Hammermann Michael Reiertsen Gunnar Þór Pétursson

Delivered in open court in Luxembourg on 21 March 2024.

Ólafur Jóhannes Einarsson Bernd Hammermann

Registrar Acting President