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EU COVID-19 Certificates: A Critical Analysis

Published online by Cambridge University Press:  19 July 2021

Iris GOLDNER LANG Open the ORCID record for Iris GOLDNER LANG [Opens in a new window]
Iris GOLDNER LANG*
Affiliation:
Jean Monnet Professor of EU Law and Holder of the UNESCO Chair on Free Movement of Persons, Migration and Inter-Cultural Dialogue, University of Zagreb – Faculty of Law, Zagreb, Croatia; email: [email protected].
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Abstract

On 17 March 2021, the European Commission put forward its Proposal for a Regulation on Digital Green Certificates, which would facilitate European Union (EU) cross-border movement during the COVID-19 pandemic. The Regulation on the EU Digital COVID Certificate was adopted on 14 June 2021 and it will start to apply from 1 July 2021. This article examines the main declared goals of the new Regulation – the first being that Digital COVID Certificates facilitate safe cross-border movement, the second being that they preclude more restrictive national measures, the third being that they prevent discrimination and the fourth being that they coordinate Member States’ actions. In so doing, it highlights the main benefits and weaknesses of the Regulation, but it also goes beyond the Regulation by tackling broader questions of EU law that will be of relevance even once the pandemic is over. In this respect, the paper highlights the importance of science in assessing the proportionality of pandemic-related measures and of choosing the least restrictive and the most individualised options when restricting free movement due to public health reasons. It also identifies the effects EU certificates will have on Member States’ regulation of national COVID-19 certificates, notably those designed for other purposes than cross-border travel, and it shows that there is a thin line between the EU’s and national competences in this area.

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. 298 - 307
Copyright
© The Author(s), 2021. Published by Cambridge University Press

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Footnotes

This paper is partly based on the author’s blog posts: “Are COVID Certificates the Answer to Safe EU Travel During the Pandemic?”, published by the Bill of Health blog by the Petrie Flom Center at Harvard Law School (available at <https://blog.petrieflom.law.harvard.edu/2021/04/26/are-covid-certificates-the-answer-to-safe-eu-travel-during-the-pandemic/>, last accessed on 15 May 2021) and “Vaccination for Vacation: Should the EU Have a Digital Green Pass, Vaccination Certificate or Better Nothing?”, published by Verfassungsblog (available at <https://verfassungsblog.de/vaccination-for-vacation/>, last accessed on 15 May 2021).

References

1 Proposal for a Regulation of the European Parliament and of the Council on a framework for the issuance, verification and acceptance of interoperable certificates on vaccination, testing and recovery to facilitate free movement during the COVID-19 pandemic (Digital Green Certificate), COM/2021/130 final, 17 March 2021. A parallel Proposal covers third-country nationals legally staying or residing in the EU: Proposal for a Regulation of the European Parliament and of the Council on a framework for the issuance, verification and acceptance of interoperable certificates on vaccination, testing and recovery to third-country nationals legally staying or legally residing in the territories of Member States during the COVID-19 pandemic (Digital Green Certificate).

2 Regulation 2021/953 of the European Parliament and of the Council of 14 June 2021 on a framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test and recovery certificates (EU Digital COVID Certificate) to facilitate free movement during the COVID-19 pandemic, 15 June 2021, L 211/1.

3 For the supporting Member States, see: “Cyprus plans to open borders in march for travellers vaccinated for COVID-19” (Schengenvisainfo news, 4 December 2021) <https://www.schengenvisainfo.com/news/cyprus-plans-to-open-borders-in-march-for-travellers-vaccinated-for-covid-19/> (last accessed 15 May 2021); “Greece urges EU to create ‘vaccination certificate’ to facilitate travel” (Schengenvisainfo news, 13 January 2021) <https://www.schengenvisainfo.com/news/greece-urges-eu-to-create-vaccination-certificate-to-facilitate-travel/> (last accessed 15 May 2021); “Italian tourism federation urges government to create ‘COVID-19 vaccination certificate’” (Schengenvisainfo news, 20 January 2021) <https://www.schengenvisainfo.com/news/italian-tourism-federation-urges-government-to-create-covid-19-vaccination-certificate/> (last accessed 20 January 2021); “Portuguese minister urges creation of vaccination certificate to end testing at EU borders” (Schengenvisainfo news, 22 January 2021) <https://www.schengenvisainfo.com/news/portuguese-minister-urges-creation-of-vaccination-certificate-to-end-testing-at-eu-borders/> (last accessed 15 May 2021); “Spain plans to establish ‘vaccination certificate’ to recover tourism sector” (Schengenvisainfo news, 19 January 2021) <https://www.schengenvisainfo.com/news/spain-plans-to-establish-vaccination-certificate-to-recover-tourism-sector/> (last accessed 15 May 2021). For the Member States that have expressed concerns, see: N Nielsen, “EU to propose Covid-free ‘travel pass’ ahead of summer” (EUObserver, 2 March 2021) <https://euobserver.com/coronavirus/151084?utm_source=euobs&utm_medium=email> (last accessed 15 May 2021); J Libeoreiro, “EU vaccine passports might not be ready by the summer. Here’s why” (Euronews, 4 March 2021). <https://www.euronews.com/2021/03/03/eu-vaccine-passports-might-not-be-ready-by-the-summer-here-s-why> (last accessed 15 May 2021); “EU to propose ‘green pass’ vaccine certificate this month” (Deutsche Welle, 1 March 2021) <https://www.dw.com/en/eu-to-propose-green-pass-vaccine-certificate-this-month/a-56736273> (last accessed 15 May 2021).

4 H Smith, “Post-Covid tourism hopes buoyed by deal between Greece, Cyprus and Israel” (The Guardian, 15 February 2021) <https://www.theguardian.com/world/2021/feb/15/post-covid-tourism-hopes-buoyed-by-deal-between-greece-cyprus-and-israel> (last accessed on 15 May 2021).

5 Council mandate for negotiations with the European Parliament, 7796/21, 14 April 2021.

6 Amendments adopted by the European Parliament on 29 April 2021 on the proposal for a regulation of the European Parliament and of the Council on a framework for the issuance, verification and acceptance of interoperable certificates on vaccination, testing and recovery to facilitate free movement during the COVID-19 pandemic (Digital Green Certificate) (COM(2021)0130 – C9-0104/2021 – 2021/0068(COD))(1), 29 April 2021.

7 Arts 3(3)(c) and 15(2) of the European Parliament’s Amendments.

8 “Coronavirus: Commission proposes a Digital Green Certificate” (Commission’s Press Release, 17 March 2021) <https://ec.europa.eu/commission/presscorner/detail/en/ip_21_1181> (last accessed 10 May 2021).

9 Interim position paper: considerations regarding proof of COVID-19 vaccination for international travellers (WHO, 5 February 2021) <https://www.who.int/news-room/articles-detail/interim-position-paper-considerations-regarding-proof-of-covid-19-vaccination-for-international-travellers> (last accessed 10 May 2021).

10 Statement on the seventh meeting of the International Health Regulations (2005) Emergency Committee regarding the coronavirus disease (COVID-19) pandemic, 19 April 2021 <https://www.who.int/news/item/19-04-2021-statement-on-the-seventh-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-coronavirus-disease-(covid-19)-pandemic> (last accessed 10 May 2021).

11 On the application of the precautionary principle during the pandemic, see I Goldner Lang, “‘Laws of fear’ in the EU: the precautionary principle and public health restrictions to free movement of persons in the time of COVID-19” (2021) European Journal of Risk Regulation. For the literature on precautionary principle in the EU, see, eg, A Alemanno, “The shaping of the precautionary principle by European courts: from scientific uncertainty to legal uncertainty” (2007) Bocconi Legal Studies Research Paper no. 1007404.

12 H Kuchler, “Vaccine recipients wait to learn if they can still pass on Covid” (Financial Times, 11 March 2021) <https://www.ft.com/content/b5a40a72-1c85-46a1-a754-80ba0ef83851> (last accessed 10 May 2021).

13 For the list of vaccines that have been authorised by the European Medicines Agency, see <https://www.ema.europa.eu/en/human-regulatory/overview/public-health-threats/coronavirus-disease-covid-19/treatments-vaccines/vaccines-covid-19/covid-19-vaccines-authorised#authorised-covid-19-vaccines-section> (last accessed 10 May 2021).

14 Recitals 29 and 43 of the Preamble to the Regulation.

15 For the problem of the application of the individualised approach to public health restrictions, see Goldner Lang, supra, note 10.

16 For a discussion on the application of generalised and systematic restrictions to free movement during the pandemic, see Goldner Lang, supra, note 10.

17 Eg, see Recitals 29 and 43 of the Preamble to the Regulation.

18 For discussions on the importance of a coordinated approach towards COVID-19 and suggestions on how to improve it, see AM Pacces and M Weimer, “From diversity to coordination: a European approach to COVID-19” (2020) 11(2) European Journal of Risk Regulation 283–96; A Renda and R Catro, “Towards stronger EU governance of health threats after the COVID-19 pandemic” (2020) 11(2) European Journal of Risk Regulation 273–82.

19 On 16 March 2020, the Commission adopted its Communication on the temporary restriction on non-essential travel to the EU (Communication from the Commission to the European Parliament, the European Council and the Council: COVID-19: Temporary Restriction on Non-Essential Travel to the EU, COM/2020/115 final, 16.3.2020). In this document, the Commission recommended the European Council to adopt a coordinated decision on the closure of external borders. The agreement was reached by the European Council the following day (Conclusions by the President of the European Council following the video conference with members of the European Council on COVID-19, 164/20, 17/03/2020). A number of other soft law measures followed. Nevertheless, the fact that all EU measures were adopted as soft law instruments does not necessarily imply their ineffectiveness (eg the EU’s “traffic light system”, which was adopted as a Council Recommendation).

20 For basic information on the functioning of the Danish coronapas, see the following four links: <https://www.sundhed.dk/borger/min-side/corona/covidpas/>; <https://www.sundhed.dk/borger/min-side/corona/vaccinationspas/>; <https://coronasmitte.dk/raad-og-regler/coronapas>; <https://covid19.ssi.dk/vaccination/coronapas> (last accessed 5 May 2021).

21 “France launches COVID health pass for travel to its overseas territories” (Euronews, 12 May 2021) <https://www.euronews.com/travel/2021/04/20/france-launches-covid-pass-for-travel-to-its-overseas-territories> (last accessed 15 May 2021). See also J Henley, “France is the first EU Member State to start testing digital Covid travel certificates” (The Guardian, 20 April 2021) <https://www.theguardian.com/world/2021/apr/20/france-is-first-eu-member-state-to-start-testing-digital-covid-travel-certificate> (last accessed 15 May 2021).

22 “Sweden is making plans for an online vaccination certificate” (Kristinformation.se, 4 February 2021) <https://www.krisinformation.se/en/news/2021/february/sweden-is-making-plans-for-an-online-vaccination-certificate> (last accessed 5 May 2021); A Brzozowski and A Wolska, “Vaccinated Poles to receive special ‘passports’” (Euractiv, 14 January 2021) <https://www.euractiv.com/section/politics/short_news/vaccinated-poles-to-receive-special-passports/> (last accessed 5 May 2021).

23 The Regulation is based on Art 21(1) TFEU, which confers on EU citizens the right to move and reside freely within the EU.

24 For a discussion on the importance of the EU’s regulatory coordination in the pandemic, see A Alemanno, “The European response to COVID-19: from regulatory emulation to regulatory coordination?” (2020) 11(2) European Journal of Risk Regulation 307–16.

25 Article 17 of the Regulation.

26 DG McNeil Jr, “How much herd immunity is enough?” (New York Times, 24 December 2021) <https://www.nytimes.com/2020/12/24/health/herd-immunity-covid-coronavirus.html> (last accessed 10 May 2021).

27 WHO, “Coronavirus disease (COVID-19): herd immunity, lockdowns and COVID-19” (31 December 2021) <https://www.who.int/news-room/q-a-detail/herd-immunity-lockdowns-and-covid-19> (last accessed 10 May 2021).