On 17 March, the European Commission published a proposal for a framework for regulating Digital Green Certificates. If the European Parliament and Council adopt the regulation, a system will be set up to provide certificates to EU citizens who have been vaccinated against COVID-19, tested or declared cured. Th digital green pass will be stored in databases and used for border control. The Commission believes this will facilitate free movement across the EU and encourage the lifting of current restrictive COVID measures that are in place in different member states.
Green Certificates could have a major impact on human rights
However, this "purpose" is not clearly defined in the regulation. According to the Dutch section of the International Commission of Jurists (NJCM), this is problematic because the regulation may lead to the large-scale limitation of fundamental rights. As NJCM explains in a letter to the European Parliament, the EU has set up a system and infrastructure for Green Certificates, but only partially regulates the use of these Green Certificates. This leaves it up to member states to make their use mandatory, or to use Green Certificates in many more areas than just border control. Such mandatory use of Green Certificates may limit the freedom of movement, the right to not be discriminated against, the right to privacy, the right to data protection and, indirectly, the right to the integrity of the person (since the ability to travel is made conditional on undergoing testing or vaccination).
The regulation gives leeway to discrimination, because under the current wording of the regulation, member states are not obliged to equate a test certificate to a vaccination certificate. This means they can treat people who have not been vaccinated differently from those who have, which clashes with the principle that vaccination should always remain voluntary (as the Council itself has stressed in previous resolutions).
What is the goal, protecting health or promoting tourism?
Whenever human rights are restricted by measures or legislation, a fair balance must be struck between the affected rights and the aim of the measures. For this aim to be legitimate, the EU should specify what it is: Protecting public health, or facilitating tourism? The latter would be much less likely to justify fundamental rights restrictions. If public health is the goal, a thorough fundamental rights and privacy impact assessment should have been be carried out. Plus, the claim that the certificates effectively serve the purpose of protecting public health should have been substantiated with research and data.
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How proportional are the measures?
The proportionality of the measures should also be considered: Does a certain level of risk posed by COVID-19 outweigh the infringements of human rights? Could the regulation be amended in a way that poses fewer dangers to these rights and freedoms? Right now, the regulation establishes an infinite system, which can be instigated and shut down by the Commission (in line with the WHO’s assessment of the current as well as future pandemics). And in its current form, the regulation allows member states much broader use of the certificates: They could employ them as entry checks to all kinds of public spaces. This way participation in social life can be made dependent on them.
Amendments are needed
Because of these and other far-reaching consequences that the regulation could have, the Parliament and Council should not adopt it without amendments. They should reconsider and formalize amongst other things the aim pursued, the competences given to member states and the safeguards established to ensure data-protection and minimal limiting of fundamental rights. To encourage this, NJCM has written up its human rights concerns, plus a list of recommendations. You can read the full letter here.
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