II. Digital COVID Certificates facilitate safe cross-border movement

The aim of Digital COVID Certificates is to facilitate cross-border movement in the EU, while at the same time minimising the risk of transmission of coronavirus. This is highlighted in the Commission’s Press Release on Digital Green Certificates, which states that the certificates are being created in order “to facilitate safe free movement inside the EU during the COVID-19 pandemic” (emphasis added).Footnote ⁸ The conviction that the EU certificates comply with the public health objectives is also visible in the Commission’s Proposal, which provides, in its Explanatory Memorandum, that EU certificates “should allow EU citizens and their family members exercising their right to free movement to demonstrate that they fulfil public health requirements imposed, in compliance with EU law, by the Member State of destination”. In other words, the adoption of Digital COVID Certificates is based on the assumption that the mobile person does not represent a public health threat to their environment. This assumption is valid only if vaccination, a negative test and recovery from COVID-19 actually prevent or minimise the risk of transmission.

However, the suitability of vaccination for minimising public health risks carries a number of open questions. The suitability test is the first step in the proportionality analysis of any EU and national measure. This test will be satisfied only provided vaccination protects public health, not only by creating immunity of the vaccinated individual, but also by preventing or significantly reducing the transmission of the virus to all those who have not been vaccinated. This is consistent with the central aim of public health, which is to protect and increase the health of the entire population, rather than focusing solely on individuals, which is the role of medicine.

Unfortunately, there are still no firm scientific data certifying that vaccination prevents or minimises the chances of transmission of coronavirus from vaccinated individuals to those who have not been vaccinated, even though most recent findings are promising. In its interim position paper from 5 February 2021, the World Health Organization (WHO) opposes the idea of introducing the requirement of proof of COVID-19 vaccination as a condition for departures or entries into another country, “given that there are still critical unknowns regarding the efficacy of vaccination in reducing transmission”, and it recommends that “people who are vaccinated should not be exempt from complying with other travel risk-reduction measures”.Footnote ⁹ The Statement of the International Health Regulations (IHR) Emergency Committee regarding the COVID-19 pandemic from 19 April 2021 reflects this position by recommending to the IHR States Parties not to require proof of vaccination as a condition of entry “given the limited (although growing) evidence about the performance of vaccines in reducing transmission and the persistent inequity in the global vaccine distribution”.Footnote ¹⁰

This position calls into question the suitability of relying on proof of vaccination for the purpose of facilitating safe cross-border travel without any additional precautionary requirements.Footnote ¹¹ Only once there are sound scientific data confirming that vaccinated individuals are at a significantly reduced risk of transmitting coronavirus to non-vaccinated individuals can vaccination be considered as reliable and suitable for preventing or reducing transmission. 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 COVID Certificates. For this reason, scientific assessment stands out as crucial when establishing the proportionality of pandemic-related restrictions. Fortunately, most recent scientific findings are promising, as they are starting to point towards a “meaningful reduction” in transmission.Footnote ¹²

The suitability of vaccination certificates is particularly problematic due to the emergence of new variants and due to the different efficacies of various vaccines used in the EU and worldwide. Scientific research will need to consider whether all of the different vaccines that are being used provide sufficient protection against the transmission of different coronavirus strains. This could be particularly difficult with regards 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) of the new Regulation will oblige EU Member States to accept vaccination certificates for vaccines that have received EU marketing authorisation, 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 travellers who have received other vaccines not authorised by the EU.Footnote ¹³

Finally, science 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.

III. Digital COVID Certificates preclude more restrictive national measures

Another aim of the new Regulation is to enable the lifting of more restrictive national measures that have been in place before the entry into force of the EU Digital COVID Certificates, such as complete exit/entry bans, quarantines, self-isolation and/or testing requirements for everybody.Footnote ¹⁴

Three points need to be made here. First, Digital COVID Certificates will be an EU measure restricting free movement of EU citizens, as they will limit what is supposed to be free cross-border travel. From this perspective, EU certificates need to satisfy the second step in the proportionality analysis – the test of necessity – by making sure that there is no less restrictive alternative that achieves the same aim equally successfully. However, when considering whether there is a less restrictive method of enabling free movement while preserving the same level of public health protection, one should acknowledge that, in the COVID-19 world, the alternative to Digital COVID Certificates is not unrestricted free movement, but even more restrictions. EU certificates should be evaluated against more restrictive alternatives, such as quarantines, self-isolation and/or testing requirements for everybody, or even against complete entry bans. From this perspective, EU certificates will enable a more individualised risk assessment than the adoption of more general, systematic and restrictive national measures.Footnote ¹⁵ While it is evident that entry bans, quarantines and self-isolation are more restrictive than Digital COVID Certificates, requiring polymerase chain reaction (PCR) tests from everybody would also be a more restrictive alternative for those who have been vaccinated. It would set unnecessary requirements on those who have been vaccinated (provided vaccination minimises the risk of transmission) and could thus be viewed as a “race to the bottom”. In this light, Digital COVID Certificates will be the least restrictive option for safe cross-border movement, provided they minimise the risk of transmission.

Second, whereas EU free movement law should accept all evidence of non-infection for the purpose of cross-border travel, there are certain situations – which could be within the scope of EU law, provided there is a cross-border element – where more restrictive measures would be justified. In these instances, it would be both legitimate and ethical to demand proof of vaccination as the only acceptable condition, without alternatives or exceptions, even though this would represent an outright discrimination between vaccinated and non-vaccinated individuals. This would primarily apply to employment in certain high-risk jobs, such as those in hospitals and nursing homes. In these instances, it would be legitimate to require proof of vaccination as one of the requirements for getting employed, even in cases where an individual could not get vaccinated due to objective reasons, just like it is legitimate to require proof of excellent eyesight from pilots and air traffic controllers. More restrictive measures and discrimination against non-vaccinated individuals would be justified in these high-risk jobs by three facts, the first being that no less restrictive alternative would protect public health equally successfully, the second being that public health benefits outweigh limiting individual rights in these situations and the third being that this type of discrimination would be generally perceived as ethical by society and would improve public trust in hospitals and nursing homes.

Finally, the Regulation enables Member States to go beyond the three conditions for cross-border movement (vaccination, testing or recovery) during the pandemic and to adopt more restrictive measures. Article 11(1) of the Regulation provides that Member States “shall refrain from imposing additional restrictions to free movement”. However, Article 11(2) adds that where a Member State sets more restrictive conditions for holders of Digital COVID Certificates, it has to notify other Member States and the Commission before the introduction of such a measure and specify its reasons, scope and duration. The likely reason behind this provision was the discontent with the idea of Digital COVID Certificates expressed by some Member States and the Commission’s attempt to compromise and increase the likelihood of the adoption of the proposed Regulation. Even though in its negotiating position the European Parliament insisted that the EU certificates should not allow Member States to impose additional travel restrictions, the adopted Regulation preserves this option, but weakens it by the statement that Member States should refrain from such measures. Consequently, there is no guarantee that Member States will not go beyond the requirements set by the Regulation. However, whereas the imposition of the three requirements set by the Regulation will not have to be justified by Member States during the pandemic, the adoption of additional, more restrictive measures will be subject to general EU rules on free movement and will require justification and a proportionality analysis of the adopted measure.

IV. Digital COVID Certificates do not discriminate

The third advantage proclaimed for Digital COVID Certificates is that they will prevent discrimination against persons who are not vaccinated by allowing alternatives to vaccination certificates – in the form of a negative COVID-19 test and 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) or due to their decision or belonging to a certain category of individuals (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. This means that reserving free cross-border movement for vaccinated EU citizens and completely banning such travel to non-vaccinated individuals or allowing them to travel only by fulfilling additional requirements, such as quarantines or self-isolation, would have a discriminatory effect on all those who have not been vaccinated. They would also discriminate based on nationality, due to the fact that some Member States are progressing faster with vaccination than others. By contrast, once vaccines become widely available, vaccination certificates would continue to discriminate based on age, gender and vulnerability, as certain categories of individuals could still not get vaccinated. Consequently, the EU-level regulation of vaccination certificates as the only means of cross-border travel during the pandemic would have a disproportionately discriminatory impact on everybody who is not vaccinated due to their all-or-nothing approach, which would not allow an alternative.

EU Digital COVID Certificates will prevent such an exclusive approach by regulating the free movement not only of those who have been vaccinated, but also of those with a negative COVID-19 test and those who have recovered from COVID-19. In this way, EU certificates will promote individualised risk assessment when relying on public health justifications instead of more generalised and systematic restrictions, such as entry bans, quarantines or PCR tests for everybody.Footnote ¹⁶ Even though non-vaccinated individuals will not be in an entirely equal position – as they will have to get a negative test or a proof of recovery, whereas vaccinated individuals will not have to do that – provided non-vaccinated individuals make 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 COVID Certificates will not create second-class citizenry, as they will offer acceptable alternative requirements for those who cannot or do not want to get vaccinated, provided testing can be done in a speedy and cheap way.

The argument that it is better to treat everybody completely equally by tolerating only a negative test for travel purposes, no matter whether one has been vaccinated or not, instead of allowing a proof of vaccination as an alternative, cannot be upheld. Unnecessary restrictions to the free movement of those who can prove that they do not pose a health threat to the others out of concerns of solidarity towards those who cannot prove this would be contrary to EU free movement law and to the principle of proportionality. Additionally, such an absolute level playing field for vaccinated and non-vaccinated individuals would be neither fair nor economically and socially beneficial. Requiring a vaccinated person to get tested would be completely unnecessary, provided vaccination minimises the risk of transmission. Vaccinated individuals would perceive this extra requirement as a pointless burden or even a punishment instead of being rewarded for the decision to get vaccinated by enabling smoother travel. On top of this, allowing several reliable options for cross-border travel would be economically and socially beneficial, as it would reduce the need for testing for vaccinated individuals, who would not have to invest time and, possibly, money (in case testing is not free) in order to take the tests. For this reason, accepting vaccination, and not only testing, as a requirement to cross intra-EU borders would facilitate free movement and promote tourism.

However, this logic applies only provided vaccines are widely available across the EU. If this is not the case, Digital COVID Certificates could create a disproportionate social disadvantage, which could be perceived as second-class citizenry by a major part of the EU population who could not yet get vaccinated but would like to do so (proportionality stricto sensu).

V. Digital COVID Certificates coordinate national actions

The importance of coordinating national restrictions to free movement is highlighted at a number of instances in the new Regulation.Footnote ¹⁷ This is not surprising, since the past year has been marked with very divergent and sometimes inconsistent national mobility-related restrictions that were mostly imposed unilaterally, without being first agreed upon or coordinated at the EU level.Footnote ¹⁸ The only exception was the closure of external borders towards third countries, which was first agreed upon by the European Council and then implemented by each Member State separately.Footnote ¹⁹ Consequently, the pandemic has been the biggest ever challenge to the viability of the EU internal market and the right to free movement. In this light, Digital COVID Certificates will significantly contribute to a more coordinated EU-wide approach to free movement, despite the fact that the Regulation leaves a loophole that enables the adoption of additional national restrictions.

Additionally, the coordinating effect of Digital COVID Certificates will surpass their scope in two ways. First, the scope of the new Regulation is limited to situations of EU cross-border movement. Nevertheless, Member States are not banned from applying EU certificates for other purposes, such as access to cultural, sporting and social events, no matter whether there is a cross-border element. Consequently, there is a possibility that Member States, and even private companies, could choose to use EU Digital COVID Certificates for other purposes apart from cross-border movement. However, they have to regulate this by national law and, when doing so, they have to comply with the EU fundamental rights standards and its free movement law, which includes the principles of non-discrimination and proportionality.

Second, EU certificates will coordinate national COVID-19 certificates that have been/will have been put in place for travel and other purposes before the EU certificates start being applied. For example, Denmark has started using a national “coronapas”, which enables its owners to access a number of cultural, sporting and social events and locations in Denmark, such as closed bars, restaurants, museums, art galleries, gyms, hairdressers, conferences and various social events.Footnote ²⁰ France has launched a COVID-19 digital pass for travel to its overseas territories,Footnote ²¹ whereas Sweden and Poland have expressed their intention to implement national COVID-19 certificates as well.Footnote ²² All of these national initiatives will have to comply with the EU law standards and be interoperable with the EU system of Digital COVID Certificates. Consequently, the EU Digital COVID Certificates coordinate and harmonise national initiatives, no matter whether national activities have been initiated before the entry into force of the EU certificates or whether they have evolved from them. However, due to the division of competences between the EU and its Member States, the EU Digital COVID Certificates and national initiatives, which go beyond the scope of the EU certificates, will have different legal bases. EU certificates are based on EU free movement law,Footnote ²³ whereas national COVID-19 certificates used for other purposes will be based on national rules aimed at public health protection. Due to the fact that the certificates used for national purposes will entirely correspond to the EU certificates, one could view this process as a projection of the EU’s influence and its coordinating role in issues that are seemingly outside the scope of EU law, as they are based on national public health rules and might have no cross-border element.Footnote ²⁴ The need for the compliance of national COVID-19 certificates with the EU certificates is also supported by the principle of loyalty, contained in Article 4(3) TEU.