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27 January 2021
Since the World Health Organisation declared the COVID-19 outbreak a pandemic on 11 March 2020, governments worldwide have made significant efforts to cope with this unforeseen situation and control the spread of the virus. Numerous legal provisions, both temporary and permanent, have been introduced in an attempt to strike a delicate balance between public health and safety, individual freedoms and economic stability. As a result, a complex maze of laws, regulations, directives, recommendations and instructions has made it difficult to identify the obligations of air passengers.
This article is the third in a series which provides a snapshot of new Spanish legislation that affects the air travel industry.(1) At the time of writing, the pandemic is far from under control, although substantial progress has been made with the approval of rapid detection tests and the imminent deployment of vaccines. Nonetheless, many of the measures passed by governments in recent months appear to be here to stay, so this series may also provide a glimpse of the new normal insofar as aviation legislation is concerned.
In order to protect their citizens, most governments introduced travel bans or restrictions at the start of the pandemic, often citing 'public order' or 'public safety' to override existing domestic and international legal provisions. The European Commission was naturally wary of such restrictions, and on 30 March 2020 it published Communication 2020/C 102 I/02, which provided guidance on:
On 12 June 2020, in anticipation of the lifting of non-essential travel bans, the European Commission issued Communication 2020/C 197 I/01 (Guidance for a Phased and Coordinated Resumption of Visa Operations), whereby it encouraged member states to start preparing for the development of new protocols and provided a series of common principles for visa operations. Further, by way of EU Recommendation 2020/912 on the temporary restriction of non-essential travel into the European Union and the possible lifting of such restriction, member states were asked to gradually lift the temporary restrictions with regard to residents of third countries listed in an annex from 1 July 2020.
Further to said EU recommendations, on 17 July 2020 the Spanish government published Order INT/657/2020 on temporary restrictions on travel (which has been extended and amended many times since). Essentially, travel restrictions are in place until at least 31 January 2021 and will in all likelihood be extended. Spain has established temporary controls at its intra-EU borders. At present, only the following people are allowed to enter Spain by air:
Further EU measures in response to second wave
On 13 October 2020, in light of the second wave of the pandemic that hit most European countries in Autumn 2020, the European Commission published EU Recommendation 2020/1475 on a coordinated approach to the restriction of free movement in response to the COVID-19 pandemic. This recommendation:
On 30 October 2020 EU Recommendation 2020/1632 on a coordinated approach to the restriction of free movement in response to the COVID-19 pandemic in the Schengen area was issued. This recommendation asks member states to apply the principles, common criteria and common framework of measures set out in EU Recommendation 2020/1475 when ensuring, within the Schengen area, the absence of checks on persons, whatever their nationality, at internal borders.
Spanish measures on sanitary controls at airports
On 11 November 2020 Spain implemented the above EU recommendations by way of a General Directorate of Public Health resolution relating to sanitary controls at Spanish entry points. Thus, the following rules apply from 23 November 2020 until the government declares an end to the sanitary crisis:
Documents written in other languages require an official Spanish translation.
The list of high-risk countries is reviewed every two weeks and published on the Ministry of Health's website ('www.mscbs.gob.es') or at 'www.spth.gob.es'. The new lists take effect within seven days of their publication to enable airlines, travel agencies and touristic operators to adjust their customer information. The current list includes the following countries and regions:
Rapid antigen tests
Although Spain has declared that only PCR tests are acceptable to gain entry into the country, due to the quick evolution of tests to detect COVID-19, on 18 November 2020 the European Commission published EU Recommendation 2020/1743 on the use of rapid antigen tests for the diagnosis of SARS-CoV-2 infection to ensure the free movement of persons and the functioning of the internal market. This recommendation sets out guidance for member states regarding the use of rapid antigen tests to detect SARS-CoV-2 and recommends that rapid antigen tests be conducted in addition to reverse transcription-PCR tests in clearly defined settings where the deployment of antigen tests is appropriate, with the aim of:
The Spanish government is expected to pass legislation shortly to account for this latest EU recommendation.
Restrictions on UK flights
In light of the discovery of a new variant of COVID-19 in the United Kingdom, and to mitigate its potential impact in Spain, on 22 December 2020 the Spanish government issued Order PCM/1237/2020, limiting flights from UK airports to aircraft exclusively transporting Spanish or Andorran citizens or residents. Other types of flight or aircraft (eg, state aircraft, search and rescue flights, non-commercial stopovers in Spain, cargo flights, positioning flights and humanitarian and medical emergency flights) are not covered by the restrictions. Initially intended to expire on 5 January 2021, and taking into account that the situation in the United Kingdom remains high risk, the restrictions have been subsequently extended until 2 February 2021 by Orders PCM/1295/2020 and PCM/14/2021.
For further information on this topic please contact Sergi Giménez Binder at Augusta Abogados by telephone (+34 933 621 620) or email (firstname.lastname@example.org). The Augusta Abogados website can be accessed at www.augustaabogados.com.
(1) For earlier articles in the series please see "The new normal? COVID-19 legislation: subsidies, consumer protection and air transport" and "The new normal? COVID-19 legislation: safety measures".
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