10.6092/issn.1561-8048/10789
Despite the Union’s limited competences in the field of healthcare, the European Union has promptly tried to contrast the negative effects resulting from the disorderly reaction of the Member States to the COVID-19 pandemic, to begin with those most likely to impinge on the proper functioning of the internal market. This report examines the Guidelines elaborated by the Commission in the aftermath of the sanitary crisis with particular regard to the free movement of healthcare personnel.
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COVID-19 and Labour Law:  Free Movement of Healthcare Personnel within the EU
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COVID-19 and Labour Law:  Free Movement of Healthcare Personnel within the EU
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COVID-19 and Labour Law: Free Movement of Healthcare                                  Italian Labour Law e-Journal
Personnel within the EU                                                              Special Issue 1, Vol. 13 (2020)
Giacomo Di Federico                                                    Covid-19 and Labour Law. A Global Review
giacomo.difederico@unibo.it                                                                        ISSN 1561-8048
                                                                    https://doi.org/10.6092/issn.1561-8048/10789




              COVID-19 and Labour Law:
     Free Movement of Healthcare Personnel within the
                          EU
                Giacomo Di Federico*

                                                   Abstract
     Despite the Union’s limited competences in the field of healthcare, the European Union has
     promptly tried to contrast the negative effects resulting from the disorderly reaction of the
     Member States to the COVID-19 pandemic, to begin with those most likely to impinge on the
     proper functioning of the internal market. This report examines the Guidelines elaborated by
     the Commission in the aftermath of the sanitary crisis with particular regard to the free
     movement of healthcare personnel.

     Keywords: Covid-19; EU law; Internal market; Healthcare personnel.




    The competences of the European Union in the field of healthcare are diverse in nature
 but substantially limited. The management and organization of the healthcare system fall
 within the responsibilities of the Member States1, and outside the specific areas indicated in
 the treaties, the Union cannot uniformize/harmonize domestic laws and regulations.2
    Common safety concerns in public health matters can only be addressed by coordinating
 and complementing the action of the Member States. In particular, the Union is called upon
 to encourage the complementarity of national health services in cross-border areas and
 concrete cooperation between the Member States3. To that effect, the Commission can
 establish guidelines and indicators, as well as organize the exchange of best practices. In
 addition, the European Parliament and the Council can adopt of legislative measures to
 monitor, detect and combat major cross-border health threats like the current COVID-19
 pandemic4. EU action, however, does not supersede national autonomy in the protection of
 health.

 *
   Associate Professor of European Union Law, University of Bologna, School of Law.
 1 Art. 168(7) TFEU.
 2 Cf. Arts 2(5), 6(a) and 168 (4) TFEU. Most notably the European Parliament and the Council, following the

 ordinary legislative procedure, can adopt: a) measures setting high standards of quality and safety of organs and
 substances of human origin, blood and blood derivatives; b) measures in the veterinary and phytosanitary fields;
 c) measures setting high standards of quality and safety for medicinal products and devices for medical use.
 3 Art. 168(2) TFEU.
 4 Art. 168(5) TFEU.
    Giacomo Di Federico                                                           Italian Labour Law e-Journal
                                                                                 Special Issue 1, Vol. 13 (2020)
                                                                    Covid-19 and Labour Law. A Global Review
                                                                                      Section: National Reports




    The identification, assessment and communication of current and emerging threats to
human health from communicable diseases is entrusted to the European Centre for Disease
Prevention and Control (ECDC), which operates in close liason with the Member States5. In
order to fight against health scourges, the EU also relies on the Health Security Committee,
with the task of supporting the exchange of information and ensuring coordination
activities6, as well as on the EU Civil Protection Mechanism, aimed at guaranteeing the
adequacy of the response in the immediate aftermath of a disaster.7 This mechanism can be
activated via the Early Warning and Response System of the European Union (EWRS)
whenever the emergency surpasses the capabilities of the individual Member States
concerned.8 Assistance and expertise can be mobilized by the Emergency Response
Coordination Centre (ERCC), which provides a 24/7 service. Most notably, Emergency
medical teams (EMTs) can be deployed inside and outside Europe with a view to support
and sustain the healthcare personnel operating in the affected countries9.
    It is within this legal and operational framework that the Commission has adopted a
number of guidelines aimed at safeguarding the internal market. Indeed, as a reaction to
COVID19 Member States have by and large reintroduced checks at their borders, which not
only represents a restriction to the supply of medical equipment, but also limits the free
movement rights of healthcare personnel. Hence, on 16 March 2020, the Commission has
released Guidelines for border management measures to protect health and ensure the availability of goods
and essential services, where it insists on the need to permit and facilitate the crossing of frontier
workers10. Checks should be substantiated (e.g. supported by ECDC recommendations), duly
motivated and non-discriminatory; medical and para-medical personnel involved in the
controls should be adequately trained and equipped.
    More detailed guidelines to facilitate cross-border movement of healthcare workers,
including when this implies using a Member State only as a transit country, can be found in
the Communication from the Commission on the implementation of the Green Lanes under the Guidelines
for border management measures to protect health and ensure the availability of goods and essential services,
of 23 March11, and in Communication concerning the exercise of the free movement of workers during
COVID-19 outbreak, of 30 March12. Whilst the former generally urges the competent national
authorities to set up safe passage corridors in each necessary direction (green lanes), the latter
clarifies the categories of (employed and self-employed) workers with critical occupations
and the practical arrangements to be put in place.



5 Regulation (EC) No 851/2004.
6 Decision No 1082/2013/EU. See also:
https://ec.europa.eu/health/preparedness_response/risk_management/hsc_en.
7 https://ec.europa.eu/echo/what/civil-protection/mechanism_en.
8 https://www.ecdc.europa.eu/en/early-warning-and-response-system-ewrs.
9 Medical teams are part of the European Medical Corps (EMC), which gathers all medical response capacities

committed by the Member States to the EU Civil Protection Pool. See further
https://ec.europa.eu/echo/what-we-do/civil-protection/european-medical-corps_en. The EU covers 75% of
transportation costs, as well as 75% operating costs if deployed inside the EU.
10 C(2020) 1753 final.
11 C(2020) 1897 final.
12 C(2020) 2051 final.



https://doi.org/10.6092/issn.1561-8048/10789                                                                   2
     Giacomo Di Federico                                                           Italian Labour Law e-Journal
                                                                                  Special Issue 1, Vol. 13 (2020)
                                                                     Covid-19 and Labour Law. A Global Review
                                                                                       Section: National Reports




    With particular regard to the healthcare sector – above and beyond doctors and nurses
(health professionals) – the communication mentions: paramedical professionals; personal
care workers in health services, including care workers for children, persons with disabilities
and the elderly; scientists in health-related industries; workers in pharmaceutical and medical
devices industry; workers involved in the supply of goods, in particular for the supply chain
of medicines, medical supplies, medical devices and personal protective equipment, including
their installation and maintenance. These categories of workers should benefit from
dedicated lanes at the border. Since crossing operations, including checks and screenings,
should take no longer than 15 minutes, Member States are invited to allow workers to remain
in their vehicles during the relevant operations, limit temperature measurement to three times
a day and contemplate the issuance of specific stickers to secure burden-free and fast
procedures for those needing to enter the territory of the Member State of employment.
Nonetheless, should fever be present the border authorities are entitled to discontinue the
journey, making sure that the individual has access to appropriate health care on a non-
discriminatory basis with respect to the nationals of the Member State of employment.
    The contribution of healthcare workers in the fight against COVID-19 has more recently
been addressed in the Guidelines on EU Emergency Assistance in Cross-Border Cooperation in
Healthcare of 6 April 202013. Besides the supply of medical equipment, the ongoing sanitary
crisis calls for mutual support in terms of healthcare facilities, medical personnel and clinical
management of patients, as well as proper arrangements for cross-border patient assistance.
    Cooperation between the hospitals indicated by the Member States as reference centers
for COVID-19 is of the utmost importance, especially in relation to intensive care places14.
If fully exploited, existing cross-border bi-lateral and regional agreements and contact points
are considered capable of optimizing the available resources15. More generally, without
endangering their own health systems, Member States are invited to collaborate in a spirit of
solidarity by sending appropriately qualified medical personnel to overstretched healthcare
facilities located in other Member States16. The Commission will coordinate the requests for
assistance and the signaled availabilities through the Health Security Committee and the Early
Warning and Response System (EWRS), and co-fund the emergency transport of patients
and medical teams across borders through the EU Civil Protection Mechanism17.
    One of the major challenges in terms of cross-border medical assistance is the recognition
of Health Professional Qualifications. Strategical workers in the fight against COVID19,
such as doctors (with basic medical training and with specializations in respiratory medicine,
immunology or communicable diseases) and general care nurses, are subject to an automatic

13 C(2020) 2153 final.
14 Hospital treatment, for instance, has been offered to Italian and French patients from several German Länder
(https://www.reuters.com/article/us-health-coronavirus-germany-italy/germany-treats-first-italians-as-
coronavirus-care-crosses-borders-idUSKBN21B2GL).
15 See further Study on Cross-Border Cooperation: Capitalising on existing initiatives for cooperation in cross-

border regions.
16 On 7 April 2020 a team of European doctors and nurses from Romania and Norway was effectively

dispatched to Milan and Bergamo (Press release IP/20/613).
17 The costs related to cross-border healthcare assistance could be supported by the Emergency Support

Instrument (see Proposal for a Council Regulation activating ESI) and further resources could be sought
through the European Solidarity Fund.

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     Giacomo Di Federico                                                        Italian Labour Law e-Journal
                                                                               Special Issue 1, Vol. 13 (2020)
                                                                  Covid-19 and Labour Law. A Global Review
                                                                                    Section: National Reports




recognition procedure pursuant to Directive 2005/36/EC (as amended in 2013). In this
respect, the Commission reminds the Member States that the Directive does not prevent
Member States from being more flexible when it comes to accepting incoming health
professionals: administrative formalities could be removed (e.g. prior declaration, prior check
for qualifications) and application procedures could be speeded up (e.g. shorter deadlines,
fewer supporting documents, more relaxed stance towards compensation measures).
    Besides those aspects pertaining to prior authorization and reimbursement mechanisms,
which the competent national authorities shall manage in accordance with Regulation
883/2004/EC, the transfer of patients discharges on the medical staff involved the
responsibility to ensure continuity of care through the sharing of patient summaries, medical
records and prescriptions issued in another Member State pursuant to Directive
2001/24/EU18. In addition, as previously mentioned, an effective response to the sanitary
crisis also rests on the sharing of knowledge. In this regard, healthcare professionals are
invited to use the Clinical Management Support System, which was launched on 24 March
in order to ensure a timely exchange of experience between clinicians from across the EU
(and EEA) concerning severe cases19.
    It follows from the above that despite the Union’s limited competences in the field of
healthcare, the Commission has promptly tried to contrast the negative effects resulting from
the disorderly reaction of the Member States to the COVID-19 pandemic, to begin with
those most likely to impinge on the proper functioning of the internal market. With this in
mind, further guidance on aspects relevant for the cross-border mobility of healthcare
professionals will soon be made available and should be closely monitored.




Copyright © 2020 Giacomo Di Federico. This article is released under a Creative Commons
Attribution 4.0 International License




18See https://ec.europa.eu/health/ehealth/electronic_crossborder_healthservices_en.
19More concretely, the CMSS enables clinicians working in a hospital treating complex COVID-19 cases to use
the Web Conferencing system and be supported by a dedicated Helpdesk managed by DG SANTE.

https://doi.org/10.6092/issn.1561-8048/10789                                                                 4
