On March 17, the European Commission put forward its Proposal for a Regulation on Digital Green Certificates which would facilitate safe EU cross-border movement for purposes of work and tourism.
Considering the length of the EU decision-making process and the technical work that will need to be done, the digital green certificates will not be ready for use until late June or July this year.
The proposed certificates will include three categories of EU citizens and third-country nationals legally staying/residing in the EU: those who have been vaccinated against COVID-19, those who have recovered from COVID-19, and those who can produce a negative test result. A non-EU national travelling to the EU – such as a U.S. citizen – could request a digital green certificate from an EU Member State he/she is travelling to, by providing all the relevant information to the national authorities, which would then have to assess whether to issue the certificate.
The proposed EU certificates would also allow the Commission to issue a decision recognizing certificates issued by third countries to EU citizens and their family members, where such certificates meet quality standards and are interoperable with the EU system. Additionally, the Commission intends to make certificates compatible with systems in third countries, such as the U.S,, and is open to global initiatives.
EU Member States’ reactions to this initiative have been diverse. While some Member States – particularly those dependent on tourism – such as Cyprus, Greece, Italy, Portugal, Iceland, Denmark, and Spain – support the initiative, others – like Belgium, France, Germany and the Netherlands – express concerns. In the meantime, both Greece and Cyprus have reached agreements with Israel that should enable their citizens who have been vaccinated to travel between these two EU Member States and Israel without the need to quarantine.
This blog post examines what the European Commission sees as the three main advantages of its Proposal for digital green certificates – the first being that digital green certificates facilitate EU cross-border movement, the second that they preclude more restrictive national measures, and the third that they prevent discrimination.
Digital Green Certificates Facilitate Safe Cross-Border Movement in the EU
The aim of digital green certificates is to facilitate cross-border movement of EU citizens and third-country nationals legally staying/residing in the EU, while at the same time minimizing the risk of transmission of coronavirus. In the European Commission’s Press Release on Digital Green Certificates, it is stated that the certificates are being created in order “to facilitate safe free movement inside the EU during the COVID-19 pandemic” (emphasis added).
In other words, the adoption of digital green certificates is based on the assumption that the mobile person does not represent a public health threat to his/her environment. This assumption is valid only if vaccination, a negative test, or prior COVID-19 infection actually prevent or minimize the risk of transmission.
Only once there are sound scientific data confirming that the vaccinated individuals are at a significantly reduced risk of transmitting coronavirus to the non-vaccinated ones, can vaccination be considered reliable and suitable evidence for preventing or reducing transmission. The question whether a measure is suitable for the achievement of its desired aim is the first step in the proportionality analysis of any EU and national measure. As long as the suitability of vaccination for the prevention of transmission is not scientifically confirmed, the satisfaction of the suitability test remains the weakest link of digital green certificates Most recent scientific findings are promising, as they start to point towards a “meaningful reduction” in transmission.
In this context, scientific research will also need to consider whether all the different vaccines, that are being used in the EU and worldwide, provide equally good and sufficient protection against transmission of different coronavirus strains.
This could be particularly problematic with regard to those vaccines that have been bought and used in some Member States without being approved by the European Medicines Agency (EMA), such as the Russian and Chinese vaccines. Article 5(5) and 5(6) of the Commission’s Proposal will oblige EU Member States to accept vaccination certificates for vaccines which have received EU marketing authorization, no matter whether one has been vaccinated in the EU or in a third country, whereas each Member State will be able to extend this to EU travelers who have received other vaccines, not authorized by the EU.
Finally, evidence will need to establish the duration of immunity and protection from transmission of the vaccinated individual. Once this is established, the EU, its Member States and/or the WHO will need to establish reliable procedures for the renewal of vaccination documents.
Digital Green Certificates Preclude More Restrictive National Measures
Digital green certificates will establish EU-level rules on cross-border movement during the COVID-19 pandemic. This will have a double effect. First, it should enable better coordination of EU Member States’, so far inconsistent, anti-COVID restrictions to free movement. Second, it should reduce the chances of Member States’ adoption of more restrictive national rules regulating entry to their territories of EU citizens and third-country nationals legally staying or residing in the EU.
Digital green certificates will be an EU measure restricting free movement of EU citizens, as it will limit, what is supposed to be free cross-border travel. From this perspective, digital green certificates need to satisfy the second step in the proportionality analysis – they need to be necessary. However, when considering whether there is a less restrictive method of enabling free movement, while achieving the same level of public health protection, one should acknowledge that, in the COVID-19 world, the alternative to digital green certificates is not unrestricted free movement, but even more restrictions. Digital green certificates should be evaluated against more restrictive alternatives, such as quarantines and/or PCR tests for everybody, or even against complete entry bans. In this light, digital green passes will be the least restrictive option for safe cross-border movement, provided they minimize the risk of transmission.
While Article 10 of the Commission’s Proposal indirectly allows Member States to individually adopt more restrictive measures, it also requires notification of other Member States and the Commission before the introduction of such measures, and specification of the reasons, scope, and duration of the measure. The adoption of additional, more restrictive measures will be subject to general EU rules on free movement, and will require justification and proportionality analysis.
Digital Green Certificates Do Not Discriminate
The third advantage proclaimed by digital green certificates is to prevent discrimination against persons who are not vaccinated, by allowing alternatives to vaccination certificates – in the form of a negative COVID-19 tests and the proof of recovery from COVID-19 – for the purpose of cross-border movement.
There is no doubt that reserving free cross-border travel only for those who have been vaccinated against COVID-19 would have a discriminatory effect by dividing individuals into two groups: the privileged, vaccinated ones, and the ones who cannot or do not want to get vaccinated, due to the shortage of vaccines (in the current stage of vaccination in the EU), or due to their decision not to be vaccinated (in the later stage, once vaccination becomes widely available in the EU).
For example, it is still not clear whether COVID-19 vaccines are safe and/or effective for children, pregnant women, and people with weakened immune systems and autoimmune conditions. On top of this, certain EU Member States have managed to vaccinate a higher percentage of their citizens than others.
EU digital green certificates will prevent such an exclusive approach by regulating free movement not only of those who have been vaccinated, but also of those with a negative COVID-19 test and those who have antibodies after recovering from COVID-19. This way, digital green certificates will promote individualized risk assessment when relying on public health justifications, instead of more generalized and systematic restrictions, such as entry bans, quarantines, or PCR tests for everybody.
Even though the non-vaccinated individuals will not be in an entirely equal position – as they will have to get a negative PCR test or a proof of immunity – provided the non-vaccinated individuals do this extra effort, they will be able to travel cross-border without depending on the host Member State’s restrictions, such as quarantines or even complete entry bans. Consequently, digital green passes will neither amount to indirect vaccine compulsion nor create second-class citizenry, as they will offer acceptable alternative requirements for those who cannot or do not want to get vaccinated.
For now, however, digital green certificates could create a disproportionate social disadvantage, as vaccines are still not widely available across the EU. For this reason, it would not be advisable to adopt digital green certificates at the moment of writing this blog post, due to the negative social impact this might create, since the majority of EU population that want to get vaccinated have not yet had a chance to do so (proportionality stricto sensu). Hopefully, this will change by the time the EU ordinary legislative procedure for the adoption of the Commission’s Proposal is over.
Once EU digital green certificates are adopted, they should continue to regulate EU free movement of all those who are not infectious as long as immunity has not been acquired by as sufficient part of population that would stop the spread of coronavirus (herd immunity). Only once herd immunity is created or once an effective cure for COVID-19 is found, could digital green certificates be viewed as redundant and unnecessary hurdles to free movement.
Considering the high rate of contagiousness and transmissibility of COVID-19 (R0), scientists have been raising their estimates up to 90 percent of population needed for herd immunity. The WHO’s position has been that the percentage of the population that would need to be vaccinated to induce herd immunity is not yet known. Considering the uncertain threshold needed for herd immunity, it is difficult to predict the date when the WHO will declare the end of the pandemic, which will lead to the suspension of digital green certificates, based on Article 15(2) of the Commission’s Proposal.
Iris Goldner Lang is 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.
This blog post is based on the author’s post “Vaccination for Vacation: Should the EU Have a Digital Green Pass, Vaccination Certificate or Better Nothing?”, published by Verfassungsblog on 16 March 2021.