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Title III chapter II of the Schengen border control code describes the possibility of reintroducing temporary border controls, but I can't find what basis there is to remove the right to free movement under EU law? Especially interested in knowing the limitations to their ability to close their border.

The context is Slovakia closing its border for anybody who doesn't have a temporary or permanent residence in Slovakia. Do note, under EU law you do not need temporary or permanent residence in a country to live and even work there, thus this means that I now know of people who now can not leave Slovakia without losing the ability to return.

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Note that the reintroduction of border controls provided for in the Schengen Borders Code does not restrict free movement more than slightly: EU citizens and others who enjoy free movement should be allowed to cross those borders after being subjected to the border controls (unless they can be excluded on the grounds set forth in directive 2004/38/EC).

I can't find what basis there is to remove the right to free movement under EU law?

The right of free movement in EU law stems from the treaties establishing the EU. For example, article 45 of the consolidated treaties concerns free movement of workers. Its third paragraph includes the words

subject to limitations justified on grounds of public policy, public security or public health

The broader application of free movement is found in Directive 2004/38/EC. This similarly allows exceptions for public policy, public security or public health, as provided in Chapter VI. Article 27 sets forth the general principles, including

Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. ...

Article 29(1):

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.

The directive does appear to require individual determinations to be made in order to restrict free movement, which suggests that wholesale closing of the border may be contrary to Union law. This is not entirely clear, however.

In any event, any person who enjoys free movement should be able to appeal their exclusion from Slovakia under Article 31(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.

It may prove difficult in practice, however, for people to get an individualized "decision taken against them" that they can appeal. If that happens, one way to approach this would be to try SOLVIT, although it's not likely to yield quick results.

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  • Yeah, I found that directive not long before you posted this answer and been reading and rereading that chapter. It's very confusing how the health exceptions should look. I feel like the intend is indeed "individual determinations", but can't put my finger on it whether that's the case. Anyway, any idea how to read the "irrespective of nationality", does that mean that discriminating based on nationality is or isn't allowed? (Slovakia allows Slovak nationals in) Mar 12 '20 at 21:20
  • @DavidMulder my understanding (assumption, really) is that member states may discriminate on grounds of (inter alia) public health because they have to accept their nationals no matter what. The phrase "irrespective of nationality" is always used to describe family members or children of Union citizens (because they enjoy the right even if they are not union citizens).
    – phoog
    Mar 12 '20 at 21:38
  • "they have to accept their nationals no matter what" Not sure where that's coming from~ I thought discrimination based on nationality isn't allowed (well, technically nationality isn't explicitly on the list of the border guard discrimination list, racial or ethnic origin are... and they just can't discriminate nationals and residents, which they aren't...). What irks me strongly is that I feel like I should have the right to go to Slovakia and be put in the same quarantine rules as all Slovak nationals 😅 . Plus that people coming from Hungary (13 cases) would be a threat to public health... Mar 12 '20 at 22:00
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    Note that the WHO has actually declared COVID-19 to be a pandemic. Mar 13 '20 at 6:03
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    who.int/csr/disease/swineflu/frequently_asked_questions/… provides a definition from WHO.
    – Clearer
    Mar 13 '20 at 9:53
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While Schengen is mainly about border controls, freedom of movement rights stem mainly from the Citizens' Rights Directive.

In terms of restricting freedom of movement, Article 27(1):

Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens 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.

and especially relevant in this case, Article 29(1):

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.

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