Highlight 10/2021 – The EU Digital Green Pass: the path to freedom or an infringement of the freedom of movement of persons?
Mathilde Bargé, 18 March 2021
The sudden reappearance of national borders within the European Union because of travel restrictions, quarantines, self-isolation and test requirements has underlined the importance of the free movement of persons. The health crisis has put into question the transnational dimension of EU citizenship. Indeed, the pandemic calls into question the model of globalization and, inevitably the movement flows, now perceived as a health risk. Both the EU Treaties, which define and guarantee this basic principle of EU citizenship, allow border checks to be re-established for safeguarding public health. In this regard, restrictions of movement rights as well as severe domestic restrictions on fundamental rights have been tools to limit the spread of COVID-19.
Those restrictions of freedom of movement seems to jeopardize the very idea of European integration as they considerably restrict EU citizens’ rights. In this context, the European Commission is to propose a personal electronic coronavirus vaccination certificate in an effort to lift those restrictions by boosting travel around the European Union or abroad for work or tourism. Ursula von der Leyen, European Commission president, said the EU Digital Green Pass “would provide proof of inoculation, test results of those not yet jabbed, and information on the holder’s recovery if they had previously had the disease”. However, this digital health passport may be used in ways that may conceivably both restrict and promote the exercise of this freedom.
As Covid-19 constitutes a disease qualified as pandemic by the World Health Organization, the invocation of the need to safeguard public health is quite legitimate (Article 29, paragraph 1, of Directive 2004/38). Yet, this framework is supplemented and reinforced by principles of EU primary law, such as non-discrimination and proportionality. However, it appears that digital health passport can have an important impact on the protection of equality and non-discrimination.
Indeed, depending on its implementation, the Digital Green Pass might create a new distinction between individuals based on health status. Some individuals may be allowed to move freely, whereas others may be outlawed from travel and prevented from accessing specific areas. All the more so, an ethical concern is to determine who would be excluded if certificates were introduced as some people are unable to have vaccines for medical reasons (allergies or pregnant women). Furthermore, other EU citizens are more vaccine hesitant, which would mean that this group could be excluded. Thus, even if vaccination is not compulsory, this certificate could make it indirectly mandatory.
While the European Commission has led efforts to procure vaccines through a centralized scheme, the distribution of vaccines to EU Member States is being done on a per-capita basis, ignoring the different age structures, which is the main drivers of vulnerability, of each country. This situation would lead to open up the possibility of reducing restrictions for those who have already been vaccinated, while maintaining them temporarily for the rest of the population; making the freedom of movement a privilege and not anymore, a right granted to all EU citizens. A fair balance between the competing values of safeguarding individual rights and public health interests must be struck.
Mathilde BARGE, The EU Digital Green Pass: the path to freedom or an infringement of the freedom of movement of persons?, Highlight 10/2021, available at www.meig.ch
The views expressed in the MEIG Highlights are personal to the author and neither reflect the positions of the MEIG Programme nor those of the University of Geneva.