LAST UPDATE | 2 Oct 2020

RYANAIR’S CHIEF EXECUTIVE has called on the Irish government to “immediately adopt the European traffic light system” following today’s high court ruling against the airline in its challenge to the State’s Covid-19 travel advice.

In its action, Ryanair claimed the measures, which the airline said amount to “international travel restrictions”, were unlawful and amounted to a disproportionate interference of it and its passengers’ rights.

The airline sought various orders and declarations including one setting aside measures announced in late July.

The State had argued that the measures announced were not mandatory but advisory in nature and do not impose a legal restriction on travel in and out of the country. It also claimed that Ryanair had no legal basis to bring its challenge against the measures and that the courts cannot intervene with this advice.

In his judgement today Mr Justice Garrett Simons found that the government acted lawfully in providing travel advice and public health advice in respect of the coronavirus pandemic on a non-statutory basis.

“The government is entitled, in the exercise of the executive power, to provide such advice to the public. Its entitlement to do so has not been ousted by the enactment of legislation in the field, such as the Health Act 1947 and the Health Act 1970.

‘Abandoned’

Following today’s ruling, Ryanair’s Eddie Wilson accused the government of “abandoning aviation” since 1 July “when everybody else has returned to travel” adding that there had been no scientific basis to restrict travel. 

“We need the government to not only to adopt it on the 13 October but to come out today and say that Ireland is going to push for this traffic light system that will give stability and certainty so people can actually return to travel and restore connectivity in this country,” Wilson told RTÉ’s News at One. 

“Public health advice in relation to travel has been disproportionate and wrong. The European Centre for Disease Control has had rules on this since 1 July and Ireland has gone off on a tangent.” 

The traffic light policy, which is to be agreed upon by the EU Council of Ministers on 15 October, would use a traffic light system to mark countries as green, orange, or red depending on their rate of Covid-19 cases. 

Judge Simons said today that the government’s advice to avoid non-essential travel and to restrict movements on entry to the State is “just that: advice”.

“The government merely requests that persons entering the State from a country not on the ‘green list’ restrict their movements for 14 days. As of August 2020, there had been no legal requirement to do so.

“If and insofar as the failure to observe the advice may result in a financial disadvantage for certain classes of individual, eg those in receipt of jobseeker’s benefit, there is a specific legal basis for same under the social welfare legislation which has not been challenged.”

He said the government’s official websites resent an accurate portrayal of the legal status of this advice.

The ruling states that the publication of travel advice and public health advice is consistent with EU law.

“In particular, it does not breach the right to freedom of movement provided for under Articles 20 and 21 of the Treaty on the Functioning of the European Union.

“Ryanair conceded that a Member State, such as the Irish State, is, in principle, entitled to derogate from EU law rights on the grounds of public health. This concession was sensibly made. Insofar as the right to free movement is concerned, for example, express provision is made under the Citizenship Directive (Directive 2004/38/EC) for measures restricting freedom of movement on the grounds of public health.”

Judge Simons said it is “important to emphasise what this judgement is not about”.

He said Ryanair has been careful in its written and oral submissions not to challenge the underlying merits of the travel advice.

“Ryanair’s principal complaint is that, as a matter of domestic constitutional law, the government in publishing the impugned travel advice exceeded its executive powers and trespassed upon the legislative power. These arguments have been rejected for the reasons detailed earlier.

“In consequence of the narrow focus of the case as pleaded and argued, however, this judgement has nothing to say in respect of the wisdom or otherwise of the travel advice. In particular, it has nothing to say on the methodology or criteria by which the “green list” of countries had been prepared.

Ireland’s Green List for travel precautions remained unchanged today after undergoing a weekly review. No countries have been added or removed from the list, leaving Cyprus, Finland, Latvia and Liechtenstein as the four countries in place.

People who travel from any of those four countries to Ireland are not required to restrict their movements after entering Ireland.

At the other side, restrictions are in place for travellers arriving from Ireland in all four of the countries. It is likely the list will be dropped in favour of as the EU-wide traffic light system for travel around Europe.

Countries with a 14-day incidence of less than 25 per 100,000, and less than 3% positive test rate, will be considered green. Orange countries will have an incidence of less than 50 cases per 100,00, and countries will be considered red if there are more than 50 cases per 100,000.

In Ireland, the national 14-day incidence rate is 92.06 per 100,000 as of 30 September, having tripled since 1 September when it was 33.12 per 100,000.

- With reporting from Adam Daly