On September 14, 2022, the Appeals Court for Eidsivating issued a decision in favor of a Norwegian citizen who was fined for crossing into Norway illegally during a time when the border from Sweden at Linna, Norway, was closed during the COVID-19 pandemic. The Eidsivating court’s decision reverses a lower court’s judgment and annuls the previously issued fine.
Background to the Case
According to the court decision, the Norwegian government adopted several border measures to restrict the land-border crossing between Norway and Sweden during the COVID-19 pandemic. Specifically, through the adoption of individual shorter periods starting in March 2020 that were later extended, border measures restricting travel were effectively in force for more than 18 months, until October 2021.
The decision further states that one of the specific measures adopted by the government limited the number of border crossings between Sweden and Norway by closing several crossings for entry into Norway, while leaving those border crossings for exit to Sweden open.
Under the European Schengen border rules, border measures can be adopted for up to 30 days when “there is a serious threat to public order or internal security in a Member State.” (Schengen Borders Code art. 25.) Such measures can also be reintroduced for up to six months in certain instances (arts. 25, 27), but they cannot be reintroduced if “no new threat exists that would justify applying afresh the periods provided for in Article 25” (European Court of Human Rights (ECHR), Joined Cases C-368/20 and C-369/20).
Moreover, section 14 of the Norwegian Border Crossing Act provides as follows:
The internal Schengen border can be crossed anywhere unless border control has been temporarily reintroduced, see second and third paragraphs.
The ministry can decide to temporarily reintroduce border controls over all or parts of the internal Schengen border if there is a serious threat to public order or internal security.When border control is temporarily reintroduced, the internal Schengen border must be crossed at a border crossing point determined by the ministry. The rules in and in accordance with §§ 13, 15 and 16 apply as far as they are appropriate. (§ 14 Grenseloven (translation by author).)
A Norwegian citizen crossed into Norway using a closed border crossing in Linna, Norway, on August 19, 2021, and was fined for unlawfully entering into Norway.
Crossing from Sweden (another Schengen member state) into Norway falls under the Schengen rules and section 14 of the Border Crossing Act, which both regulate crossings at an inner Schengen border. Therefore, making such a crossing is typically lawful, unless border controls have been introduced.
During the COVID-19 pandemic, the Norwegian government announced several border measures restricting cross-border travel. The border measures in force when the Norwegian citizen crossed from Sweden into Norway had been introduced on May 3, 2021. These measures were an extension of previously adopted border control measures. On May 3, 2021, these measures were further extended for another 120 days.
The Appeals Court’s Analysis
Evaluating the lawfulness of the border restriction, the court found that the “[t]he decisive factor is … whether a new threat had arisen, which differed from the original threat, when the border measure was extended by 120 days on May 3, 2021.” The court specifically noted that “the Justice Department based the extension of the border measure for the duration of the period from February 10, 2021, until October 6, 2021, on new and more contagious strains of the virus.” In the view of the court, the justice department had thus not based the extended border measure on a new threat during this eight-month period, but on the same threat.
The court found that the government’s border measure, imposing the border crossing restriction for 120 days instead of the permitted 30 days, was unlawful, and therefore determined that the person who had violated the border rules was not required to pay the previously imposed fine. The court also noted that the entire border measure went further than what was permitted by the Schengen rules, as it exceeded the permissible six-month period.
The case can be appealed to the Norwegian Supreme Court, which must grant leave to hear the case. (§ 320 Straffeprosessloven (LOV 1981-05-22-5).)
Previous Lawful COVID Measures
The Appeals Court for Eidsivating had previously found that requiring travelers to stay at designated quarantine hotels during the pandemic did not violate the right to family life under the ECHR or rights to privacy under the Norwegian constitution.
Previous Criticism of Norwegian Border Measures
The European Free Trade Agreement Surveillance Authority had previously argued that the Norwegian COVID-19 border restrictions violated the rules of the European Economic Area Agreement. Specifically, in its letter of formal notice on its finding, the surveillance authority recognized that Norway had a right to restrict the movement of persons to achieve its public health objective of limiting the spread of the coronavirus, but argued that the rules and measures adopted were discriminatory and that Norway had not proved that the measure was necessary. The surveillance authority noted in particular that residents of Norway were allowed to enter Norway from other European Economic Area (EEA) countries after completing a quarantine period in designated quarantine hotels, and that there was no reason to believe that EEA citizens, who did not reside in Norway if subject to the same quarantine mandate, would constitute a higher risk of spreading the virus if they too were quarantined in such facilities.
Elin Hofverberg, Law Library of Congress
November 5, 2022
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