Wednesday

28th Sep 2022

Opinion

Legal worries on EU's 'green certificates' for Covid travel

  • With vaccinated European travellers separated from non-vaccinated, infected from non-infected, and immune from non-immune—the digital green certificate, if applied, would be a guarantee of discrimination within the EU (Photo: wfbakker2)

An instrument of unusual significance is quietly on its way to becoming law in Europe: the proposal for a 'Digital Green Certificate' (DGC). Up for a vote in the European Parliament's plenary on Wednesday, it erects a "universal framework" for the control of disease within the Schengen area.

The EU Commission has presented it as a return to freedom of movement, essentially suspended by member states since the World Health Organization (WHO) declared a pandemic.

Read and decide

Join EUobserver today

Become an expert on Europe

Get instant access to all articles — and 20 years of archives. 14-day free trial.

... or subscribe as a group

However the DGC, which creates certificates for Europeans showing the bearer has been vaccinated, tested or achieved immunity, is already beginning to lose its sheen.

Last week, the WHO asked that any plans for making proof of vaccination a condition of entry be abandoned, after the US ruled out enforcing vaccination cards on its territory.

So is it wise for Europe to continue with its own?

Freedom of movement is perhaps the European Union's most cherished achievement, certainly among northerners seeking a visa-free sun holiday. In my home of Northern Ireland, with our ever-fragile cross-border peace agreement, we have a special appreciation for the importance of keeping borders open.

The recent EU threat to impose a 'vaccine border' between Northern Ireland and the Republic imperilled that peace. The EU can't afford another blunder on borders, so it's in its own interest that the DGC does what it says on the tin.

Lack of legal certainty

However a cursory glance at the contents suggests a case of mislabeling or at least a lack of legal certainty.

The commission assures us that the DGC will not restore (or entrench) border controls. But "universal framework" can only be read as a euphemism for checks within the Schengen zone. It is article 3 of the DGC that creates certificates of vaccination, testing and immunity.

Border guards will have to inspect these.

As it's put in Article 3(1), there will be "cross-border verification", performed by the member state "authorities" mentioned in Article 9(2). In the absence of such checks, the certificates would be useless and the "universal framework" would not exist.

With vaccinated European travellers separated from non-vaccinated, infected from non-infected, and immune from non-immune—the DGC, if applied, would be a guarantee of discrimination within the EU.

This is simply not permissable under the Schengen Code. Chapter II of the Schengen Borders Code allows for the temporary reintroduction of internal borders in some circumstances, but that does not include a public health emergency.

The whole endeavour is even more absurd if one acknowledges the scientific certainty that being vaccinated does not mean that one cannot be a carrier of the virus, nor infect others.

'Vaccinated' can still be infectious

We already know from the European Medicines Agency and WHO, confirmed by a decision this month of the Conseil d'État (France's Supreme Court), that no proof exists of vaccination halting the spread of Covid-19.

Meanwhile, in the last months many courts including the Lisbon Court of Appeal and Administrative Court of Vienna have held that PCR testing is unreliable and cannot be relied on for determining infection; a physician must perform a proper medical diagnosis. Thus the DGC certificates are useless as proof of whether you are infected, or can or cannot spread the virus.

Meanwhile the proposed regulation will cost Europe dearly.

There are the financial implications of a universal border control regime which involves the constant handling of that most sensitive of data types: medical records. There is the loss of ideals intrinsic to European democracy. But more pertinantly for me, there is the situation in Northern Ireland.

The explanatory memorandum calls freedom of movement one of the EU's "most cherished achievements" and a "driver of its economy".

It is also a driver of peace in my home. The Northern Irish remain citizens of Europe without the Union, and will not accept being checked upon entry into what about a million of them consider their home: the neighbouring member state of Ireland. The prospect of violence is terrible.

Despite these risks and contrary to the recently introduced Better Regulation Rules, the DGC controls are being rushed through with nary a cost–benefit analysis, impact assessment or public consultation—and with limited parliamentary debate.

Why? Well, in the words of the head of the commission's Covid taskforce, Thierry Breton, when speaking to RTL in March, so that Europeans can once again "enter a public place" and "live without being a risk to each other."

Could Breton really mean to suggest that there ever was, or ever can be, life without risk? Has the Parisian gentleman, when crossing his home city by car for example, ever encountered the 4-lane 12-exit roundabout at the Arc de Triomphe?

Are these divisions of the population even temporary? The EU, never mind the member states, will have no say on when they end.

According to Article 15, the WHO will decide when the DGC controls are suspended. "Suspension" itself suggests controls that may return. Indeed, the commission grants itself power to reapply the DGC if the WHO declares another pandemic, which on 4 May 2009 it redefined as a spread of "cases", rather than "deaths".

With the prospect of rolling non-lethal pandemics, and border checks based primarily on vaccination status, the assertion in the explanatory memorandum that the proposal "cannot be interpreted as establishing an obligation or right to be vaccinated" seems disingenuous.

Author bio

Ciarán McCollum is a Belfast-based Northern Irish barrister, advising on European law.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

Agenda

Brexit is back, and vaccine certificates in focus This WEEK

EU Commission president Ursula von der Leyen and European Council president Charles Michel will give their versions of events that took place at their visit to Ankara earlier this month, in a plenary debate at the European Parliament.

MEPs raise concerns on vaccine 'travel certificates'

While most MEPs have been vocal in support of the proposal by the European Commission for EU-wide vaccine certificates, key questions remain - ranging from fundamental rights, to its scientific validity.

First glimpse of new EU 'vaccine certificate' for summer

The European Commission has presented a common approach to vaccine certificates to facilitate travel. All EU-wide approved vaccines will be accepted for this document, but member states can decide to accept other vaccines too.

Stakeholder

Vaccine certificates are a way to reopen Europe, not close it

A common vaccination certificate – instead of 27 individual initiatives - can form part of the solution, together with other sanitary measures already in place, to resume travel and tourism and reduce current travel restrictions.

Column

The EU needs a global vaccination strategy - right now

The further the vaccination campaign progresses, the more people will ask: what about the rest of the world? The EU should answer the question loud and clear now before it is drowned out by a rising chorus of criticism.

Column

EU should admonish less, and listen more, to the Global South

Whether on Russia, or gas, or climate change, or food security, the EU's constant finger-wagging and moralising is becoming unbearably repetitive and self-defeating. Most countries in the Global South view it as eurocentric and neo-colonial.

News in Brief

  1. Gazprom threatens to cut gas deliveries to Europe via Ukraine
  2. New compromise over EU energy emergency measures
  3. 15 states push for EU-wide gas price cap
  4. EU: Nord Stream explosions 'result of a deliberate act'
  5. EU okays €21bn Covid-recovery funding for Italy amid concern
  6. Greece pitches new EU fund to tackle energy prices
  7. Hungary says sanctions 'harming Europe more than Russia'
  8. France aims to start building new nuclear reactors by 2027

Stakeholders' Highlights

  1. UNESDA - Soft Drinks EuropeCall for EU action – SMEs in the beverage industry call for fairer access to recycled material
  2. Nordic Council of MinistersNordic prime ministers: “We will deepen co-operation on defence”
  3. EFBWW – EFBH – FETBBConstruction workers can check wages and working conditions in 36 countries
  4. Nordic Council of MinistersNordic and Canadian ministers join forces to combat harmful content online
  5. European Centre for Press and Media FreedomEuropean Anti-SLAPP Conference 2022
  6. Nordic Council of MinistersNordic ministers write to EU about new food labelling

Latest News

  1. Can King Charles III reset the broken Brexit relationship?
  2. Meloni's navy-blockade plan to stop Libya migrants 'unlikely'
  3. Underwater explosions were detected near Nord Stream leaks
  4. EU countries stall new pesticide rules, blame Ukraine war
  5. The UN's Uyghur report must push EU into China sanctions
  6. Russian diamonds ban 'would cost 10,000 jobs', Antwerp claims
  7. EU should admonish less, and listen more, to the Global South
  8. Foul play suspicions in Nord Stream leaks

Join EUobserver

Support quality EU news

Join us