The EU COVID-19 Certificate and the Eastern Vaccines in the Light of Free Movement and Residence

As many of us have already heard it on the news, on 29 April 2021, the European Parliament (EP) adopted its amendments on the proposal for a regulation on a framework for the Digital Green Passport or better known as EU COVID-19 Certificate (Certificate), in contrast to the opinion of the World Health Organization (WHO). Under the articles of the proposal, the use of the designation ‘Certificate’ is an umbrella term since it covers three different types of information such as (i) vaccination certificate (Article 5), (ii) test certificate (Article 6) and (iii) certificate of recovery (Article 7).

According to the draft’s Recital, its intention is to guarantee the right to free movement as a key element of the European integration on the level of internal market (Treaty on the Functioning of the European Union, Article 26(2) TFEU) and also as a precondition for an economic recovery. Because the measures which were adopted by the Member States in order to limit the spread of the virus can be construed as restrictions of this fundamental right (Article 45(1) of the Charter of Fundamental Rights) and have a negative impact on citizens and businesses. Therefore, the European Union (EU) must establish a common framework which should be binding and directly applicable in all Member States. This shows that even a pandemic cannot justify the temporary reintroduction of border controls at internal borders.

In line with the above, the Preamble emphasizes that only those limitations of free movement – in accordance with Article 21(1) TFEU which implies that it is not an absolute right – are acceptable which facilitate the application of principles like proportionality and non-discrimination, while pursuing a ‘high level of public health protection’. Furthermore, free movement of people cannot be restricted if it does not pose a significant risk to public health, based on sound scientific evidence, since it would not be necessary to achieve the pursued objective.

Moreover, the proposal highlights that this Certificate is not a travel document (Article 3(3a)), therefore its possession shall not be a precondition to the exercise of free movement rights (Article 3(3b)). Also, Article 10 of the proposal states that holders of the certificates cannot be subject to any additional travel restrictions like quarantine, self-isolation, a COVID-test or any discriminatory measure.

Let’s see whether these objectives set out in the Recital meet the rules of the regulation regarding the vaccination certificate. Under Article 5(1) of the proposal each Member State shall automatically issue a vaccination certificate to a person to whom a COVID-19 vaccine has been administered.

However, the question arises: what about the type of vaccine? Pursuant to the EP’s amendments only those vaccination certificates can be accepted by a Member State which confirm that their owners are vaccinated with a COVID-19 vaccine having been granted marketing authorisation conforming to Regulation (EC) No 726/2004 (Article(5)). To sum up, with those vaccines that are authorised by the European Medicines Agency (EMA). At this point, only Pfizer, Janssen, Moderna and AstraZeneca have been authorised by the EMA. Other vaccines can also be accepted by a Member State if they have received a WHO Emergency Use Listing (Article 5 (5)). At this point, among eastern vaccines – widely used by Member States like Hungary – only Sinopharm is listed, the Russian Sputnik V is not even in progress yet.

In my opinion, this differentiation between vaccines raises a few legally relevant questions and for a better understanding, we must look at Directive 2004/38/EC on the right to free movement and residence. According to the Directive’s Preamble (5), this fundamental right can only be exercised under objective conditions of freedom and dignity, therefore any unjustified distinctions are violations of human dignity. Besides that, in its Article 24 the Directive also contains equal treatment with the nationals of the host Member State. Under Article 27(1) the legitimate restrictions of the right are listed as public policy, public security and public health. The structure of the Directive suggests an interpretation on these general principles as Article 27(2) states that the first two principles shall comply with the principle of proportionality and the personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat to one of the fundamental interests of society.

Contrary to the above, public health is separately regulated in Article 29, as it affirms particular diseases which could justify measures on the freedom of movement, such as diseases ‘with epidemic potential’ as defined by the relevant instruments of the WHO and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host Member State. In our case, the first disease group is relevant, since the WHO declared a public health emergency of international concern (PHEIC) on COVID-19 on 30 January 2020. Above all, the Preamble of the Certificate proposal states that only a significant risk to public health could be an acceptable reason to apply limitations on free movement and residence.

As Recital (7a) admits, at this stage of the pandemic, it is still unclear whether vaccines prevent transmission of COVID-19. Therefore, in my opinion, until we have sound scientific evidence about each vaccine’s safety and effectiveness, we should not differentiate between them and, through them, between citizens. I do not see any reason why we should think that eastern vaccines or EU citizens who got vaccinated with them present a significant risk to public health, why each Member State should decide themselves if they take that risk through negotiating bilateral agreements on acceptance.

Even if Article 1 of the proposal states that it does not establish any additional formality or requirement for exercising free movement, it could restrict it, since those EU citizens who do not hold a Certificate can be required to comply with quarantine orders or to get tested for COVID-19, even though they did get vaccinated (even if not with the preferred vaccines). In the joined cases of C-570/07 and C-571/07 (Reasoning 44) or C-108/09 (Reasoning 58) the Court of Justice of the European Union pointed out that Member States are obligated to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved.

From this aspect, the EU tries to strike a balance between its own values and interests. On the one hand, it wants to provide a measure of discretion to the Member States in connection with vaccines which are not authorised by the EMA but listed by the WHO with a rhetoric as a risky choice. On the other hand, the Proposal determines the principle of non-discrimination as well as the necessity and proportionality of restrictions on free movement in its Recital but seemingly forgets to work them into the normative text of the regulation.

Before finally giving a green light to the Green Passport academically speaking, such questions of inconsistency should first be addressed more thoroughly.

Luca SEVARACZ is a Hungarian fourth-year law student at the University of Szeged, Hungary. She is currently a teacher’s assistant at the Institute of Public Law. Her work experience includes voluntary work at different non-governmental organizations as well as an internship at the Office of the National Assembly. She was awarded 3rd place in one of the sections of Constitutional Law at the Scientific Students’ Associations Conference in 2021. She is the Vice President in charge of Academic Activities in European Law Students’ Association (ELSA), Szeged.

Her current research is on the position of a neutral state within the election campaign as far as the jurisprudence of the Hungarian Constitutional Court, the Curia and the National Election Committee are concerned.

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