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Applying the Proportionality Principle to COVID-19 Certificates

Published online by Cambridge University Press:  05 July 2021

Evelyn PARIS Open the ORCID record for Evelyn PARIS [Opens in a new window]
Evelyn PARIS*
Affiliation:
Independent scholar, Master in European Affairs from the School of Public Affairs, Sciences Po, Paris, France (alumna); email: [email protected].
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Abstract

With the SARS-CoV-2 pandemic entering its second year, public and private actors alike grow eager to achieve some semblance of normality. In this context, the idea of “vaccination passports” or “immunity certificates” as a means of resuming social and economic activity has been gaining momentum all around the world. This article aims to provide a legal analysis of this initiative through the lens of the proportionality principle. A proportionality test is conducted in order to determine whether the degree of infringement of the human rights implicated is balanced by the potential of a certification system to mitigate the risks of the virus. The results from this analysis show that the targeted aims can be achieved through already existing measures with a lesser impact on civil and fundamental human rights. Moreover, in a context of uncertainty around the immunopathology of COVID-19, the introduction of these certificates presents ethical and scientific challenges, which lead us to believe that this measure is unlikely to play a central role in stopping the spread of the disease, and it could set the pace for a dangerous precedent, allowing for extensive discrimination and exacerbating already existing inequalities and disparities.

Type
Symposium on COVID-19 Certificates
Information
European Journal of Risk Regulation , Volume 12 , Special Issue 2: Symposium on COVID-19 Certificates and Special Issue on the Global Governance of Alcohol , June 2021 , pp. 287 - 297
Copyright
© The Author(s), 2021. Published by Cambridge University Press

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References

1 As of 16 May 2021, the Johns Hopkins Coronavirus Resource Center reports 162,564,670 cases of COVID-19 registered globally and 3,370,617 global deaths in relation to COVID-19. Johns Hopkins University, “COVID-19 Dashboard by the Center of System Science and Engineering” < https://coronavirus.jhu.edu/map.html> (last accessed 16 May 2021).

2 Even though the terms “immunity certificate” and “vaccination certificate” have become interchangeable in journalistic writing, for the purpose of this article we will refer to “immunity certificates” or “recovery certificates” as the official documents attesting “that an individual has been infected and is purportedly immune to SARS-CoV-2”, per the definition employed by AL Phelan, “COVID-19 immunity passports and vaccination certificates: scientific, equitable and legal challenges” (2020) 395(10236) The Lancet <https://doi.org/10.1016/S0140-6736(20)31034-5> (all electronic resources, unless specified otherwise, were last accessed on 12 April 2021); while “vaccination certificates” will solely refer to official documents providing proof that an individual has been fully vaccinated against COVID-19.

3 Chile was amongst the first countries to issue “release certificates” to patients having recovered from COVID-19, while countries such as Germany, Finland, Italy, the USA and the UK showed interest in the use of immunity passports in the first months of the pandemic.

4 Countries such as Greece started issuing “green passes” to all of their vaccinated citizens as early as February 2021 and pushed for the adoption of a common measure at the EU level to facilitate free movement. The International Air Transport Association (IATA) has also been one of the early supporters of the measure. Euronews, “Greece issues COVID vaccine certificates to those who have had both doses” (23 February 2021) <https://www.euronews.com/travel/2021/02/23/greece-issues-covid-vaccine-certificates-to-those-who-have-had-both-doses>.

5 WHO, “Immunity passports in the context of COVID-19” (24 April 2020) <https://www.who.int/news-room/commentaries/detail/immunity-passports-in-the-context-of-covid-19>.

6 WHO, “Interim position paper: considerations regarding proof of COVID-19 vaccination for international travellers” (5 February 2021) <https://www.who.int/news-room/articles-detail/interim-position-paper-considerations-regarding-proof-of-covid-19-vaccination-for-international-travellers>.

7 SR Kelleher, “These European countries are launching vaccine passports” (Forbes, 5 February 2021) <https://www.forbes.com/sites/suzannerowankelleher/2021/02/05/these-european-countries-are-launching-vaccine-passports/?sh=7e2a81a777a5>.

8 R Wilf-Miron, V Myers and M Saban, “Incentivizing vaccination uptake. The “Green Pass” proposal in Israel” (2021) JAMA <https://jamanetwork.com/journals/jama/fullarticle/2777686>.

9 European Commission, COM(2021) 130 final (17 February 2021) and European Commission, COM(2021) 140 final (17 February 2021).

10 According to the European Parliament, the certificate, which shall be called “EU COVID-19 Certificate”, as opposed to the “Digital Green Certificate”, should have its use limited in time to a maximum of twelve months and should “neither serve as a travel document nor become a precondition to exercise the right to free movement”. Moreover, according to the European Parliament, the measure should ensure that holders of the certificate are not subject to additional travel restrictions and the EU should ensure universal, free-of-charge testing. European Parliament, “EU COVID-19 certificate must facilitate free movement without discrimination” (29 April 2021) <https://www.europarl.europa.eu/news/en/press-room/20210422IPR02606/eu-covid-19-certificate-must-facilitate-free-movement-without-discrimination> (last accessed 16 May 2021).

11 The proportionality principle can be traced back to the Supreme Administrative Court of Prussia, in its 1882 Case Kreuzberg, cited by Conseil d’Etat, “Le Principe de proportionnalité, protecter des libertés” (17 March 2017) <https://www.conseil-etat.fr/actualites/discours-et-interventions/le-principe-de-proportionnalite-protecteur-des-libertes>.

12 ibid.

13 Art 8 of the ECHR states the right to respect for one’s “privacy and family life, his home and his correspondence”, Art 9 provides a right to “freedom of thought, conscience and religion”, Art 10 consecrates the “freedom of expression”, while Art 11 states the “freedom of assembly and association”. Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR).

14 Case 11/70 “Internationale Handelsgesellschaft, bH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel” (1970) ECR 1125.

15 Consolidated version of the Treaty on European Union (2008) OJ C115/13.

16 Case C-331/88, “The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others” (1990) ECR I4057: “The Court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued”.

17 While the application of the principle appears to vary in different cases (based on, for example, whether the measure concerned is an act of EU institutions or an act of Member States), it is generally acknowledged that the three sub-tests can be recognised in the application of the proportionality review by the Court, even when not explicitly referred to as such. See G de Búrca, “The principle of proportionality and its application in EC law” (1993) 13(1) Yearbook of European Law 105 <https://doi.org/10.1093/yel/13.1.105>; F Jacobs, “Recent developments in the principle of proportionality in European community law”, in E Ellis (ed.), The Principle of Proportionality in the Laws of Europe (London, Hart Publishing 1999); T Tridimas, “Proportionality in community law: searching for the appropriate standard of scrutiny”, in E Ellis (ed.), The Principle of Proportionality in the Laws of Europe (London, Hart Publishing 1999).

18 W Van Gerven, “The effect of proportionality on the actions of Member States of the European community: national viewpoints from Continental Europe”, in E Ellis (ed.), The Principle of Proportionality in the Laws of Europe (London, Hart Publishing 1999).

19 W Sauter, “Proportionality in EU law: a balancing act?” (2013) TILEC Discussion Paper 2013-003 <https://ssrn.com/abstract=2208467>.

20 REG Upshur, “Principles for the justification of public health intervention” (2002) 93(2) Canadian Journal of Public Health <https://link.springer.com/article/10.1007%2FBF03404547>.

21 The “law of balancing” described by Alexy “requires the increasing intensity of interference with liberty to be matched by an increasing weight of reasons justifying the interference”. R Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press 2002).

22 Sauter, supra, note 19.

23 WHO, supra, note 6.

24 L Gostin, G Cohen and J Shaw, “Digital health passes in the age of COVID-19: are “vaccine passports” lawful and ethical?” (2021) JAMA < https://jamanetwork.com/journals/jama/fullarticle/2778526>.

25 WHO, supra, note 6.

26 In its discussion on the proportionality of the measure, the Court made the choice of assessing whether the measure was disproportionate to the legitimate aim of protecting against diseases that could pose a serious risk to public health rather than determining whether a less prescriptive measure might have been adopted. Case of VAVŘIČKA AND OTHERS v. THE CZECH REPUBLIC (2021) ECHR.

27 Gostin et al, supra, note 24.

28 EIU, “More than 85 poor countries will not have widespread access to coronavirus vaccines before 2023” (27 January 2021) <https://www.eiu.com/n/85-poor-countries-will-not-have-access-to-coronavirus-vaccines/>.

29 Gostin et al, supra, note 24.

30 WHO, supra, note 5.

31 TC Voo et al establish three preconditions: the extent of the protection of the immune responses must be well understood, the minimum length of protection must be established and the tests must be sufficiently accurate and reliable. TC Voo et al, “Immunity certification for COVID-19: ethical considerations” (2021) Bulletin of the World Health Organisation <https://www.who.int/bulletin/volumes/99/2/20-280701/en/>.

32 ibid. Also see Phelan, supra, note 2.

33 HD Gunnarsdottir, MS Sinha, S Gerke and T Minssen, “Applying the proportionality principle to COVID-19 antibody testing” (2020) 7(1) Journal of Law and the Biosciences <https://doi.org/10.1093/jlb/lsaa058>.

34 Both terms “Digital Green Certificates” (used by the European Commission) and “EU COVID-19 Certificates” (used by the European Parliament) are used interchangeably in this section as they refer to the same instrument.

35 EDPB-EDPS Joint Opinion 04/2021 (31 March 2021) <https://edpb.europa.eu/our-work-tools/our-documents/publication-type/edpbedps-joint-opinion_fr>.

36 ibid. Art 52 of the Charter of Fundamental Rights of the European Union, cited by the EDPB-EDPS Joint Opinion 04/2021, states that: “Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others”.

37 N Kofler and F Baylis, “Ten reasons why immunity passports are a bad idea” (2020) 581(7809) Nature <https://www.nature.com/articles/d41586-020-01451-0>.