On 17 March 2021, the European Commission plans to present a legislative proposal for a digital certificate referred to as the “Digital Green Pass”. The planned European certificate would provide:
- proof that a person has been vaccinated against COVID-19, and/or
- results of recent tests for those who have not been inoculated, and/or
- information on COVID-19 recovery.
According to European Commission President Ursula von der Leyen’s announcement on Twitter, the Digital Green Pass will respect data protection, security, and privacy.
The aim of the Commission’s legislative proposal is to ensure the functioning of the Single Market by gradually enabling Europeans to move safely within and outside the European Union. Whether to allow or require further uses of digital COVID-19 immunity/test result/vaccination certificates is to be decided by Member States.
A vaccine pass should avoid creating a two-tier society
”The EU is supposed to help governments give all our citizens back their freedoms. The best way to do this is to roll the vaccine out as equitably and quickly as possible. When the vast majority of people in the EU haven’t even been vaccinated, it’s not the right time to pour resources into the tricky task of building a pass that will work across 27 countries while keep peoples’ health data safe. Governments and the EU should instead focus on persuading as many people as possible to get the vaccine and speeding up a fair roll-out.Aside from being a distraction from the task of vaccination, the pass could end up creating a two-tier society. Vaccination can’t be the only way to unlock all sorts of freedoms when there are people who can’t or won’t get vaccinated – often through no fault of their own. Authorities should continue to accept proof of a recent negative test as an alternative, and make these quick, cheap and easy to get. Finally, any vaccine pass should protect our sensitive health data in line with EU data protection rules.” , said Israel Butler Head of Advocacy at the Civil Liberties Union for Europe (Liberties).
Universal access to vaccination is a must-have
Universal and equitable access to a safe and effective COVID-19 vaccine is key to protect people’s health and save lives, protect health workers and safeguard the public health system, ensure children return to school, and enable economies to rebuild and families to make ends meet.
COVID-19 vaccination campaigns have started to be rolled out across the EU. Those viewing the vaccine as the solution that will get us out of the pandemic are criticizing the slow pace of vaccination inoculation in some countries. Others express deep scepticism over the vaccine, due in part to the rapid spread of disinformation and fake news.
Vaccination campaigns and rules on vaccines and certifications are the exclusive competence and responsibility of national governments and cannot be mandated by the European Union. No Member State has chosen to make the vaccination compulsory and it seems very unlikely that any of them will try to do so in the coming months. While vaccination certifications are the Member States’ competence, the European Union has a clear interest in developing a coordinated approach.
In the eyes of the public, and several European governments, the Digital Green Pass offers a great way to return to ‘normality’ and to reenergize economies devastated by COVID-19-induced restrictions.
While we recognize the appeal of introducing digital COVID-19 immunity/test result/vaccination certificates, we call on both the European Commission and the Member States to be mindful of the risks and dangers such digital passes may bring.
We believe that the current vision for a legislative proposal on 17 March 2021 is deeply flawed on many levels. The Commission and the Member States should not go forward with any legislative proposal for any such or similar digital certificates before ensuring that ethical and scientific concerns having been addressed.
The European Commission is currently preparing new legislation based only on assumptions. First, that the vaccination will be sufficiently effective in reducing transmission. Second, that the risk of transmission from those who have already recovered from COVID-19 is sufficiently low. These assumptions are, however, not yet proven.
According to the World Health Organization, “there are still critical unknowns regarding the efficacy of vaccination in reducing transmission (…). Proof of vaccination should not exempt international travellers from complying with other travel risk reduction measures.” In addition, “the extent and duration of antibody-mediated immunity to protect against SARS-CoV-2 reinfection have not been scientifically established.”
As a human rights organization, we are not in a position to provide scientific evidence supporting or questioning the efficacy of the use of digital immunity and/or vaccination certificate passes. Nevertheless, we remind European governments and the European Commission that measures which may interfere with fundamental rights must be based on evidence that they are necessary and effective. In contrast, introducing the Digital Green Pass without sufficient evidence appears to be a flashy, counter-productive measure that risks our health and our lives for the sake of political gain.
We insist that instead of concentrating on developing a proper legal environment for mobile applications through which Europeans could certify their vaccination/recovery status, the Commission and European governments should support the scientific community in coming to a well-grounded understanding on how immunity / SARS-CoV-2 transmission works both in the segments of the population who have already recovered from COVID-19 and also in those who have been vaccinated.
Should scientific evidence suggest that the risk of transmission is very low for those already vaccinated and/or for those already recovered from COVID-19, the Commission and Member States would still need to address ethical and legal concerns in connection with the deployment of the planned Digital Green Pass.
Certain uses of the Digital Green Pass may lead to unfairness (and, consequently, to mistrust in European institutions), may further exacerbate existing inequalities and may create a two-tier society where some people may enjoy an extensive set of freedoms and rights while others are excluded. In addition, the deployment of the Digital Green Pass may involve an unjustified intrusion into our private lives and may put our personal data at undue risk of misuse.
Freedom of Movement: Unfairness & Mistrust
A digital vaccination pass exclusively linked to the freedom of movement within (and outside) the European Union could lead to the exclusion of people who are not able to have vaccines for medical reasons, such as pregnant women or people with certain preconditions. Apparently, this is why the Commission wants the Digital Green Pass to contain information not only on vaccination status, but also on current test results, and/or on the COVID-19 history of the user. We support the intention to avoid the exclusion of certain at-risk groups in society. However, without ensuring cheap and easy access to testing, those without vaccination will still face undue barriers to travel.As of early March 2021, vaccination is not compulsory in any Member States, nor is it anticipated to become so in the foreseeable future. Further, the vaccine is not generally available to the public. It is not expected that all EU citizens will have access to vaccination before the last quartal of the year. While vaccine rollout may work transparently and fairly (albeit slowly) in several Member States, this is not necessarily true across the board. In a number of countries, the middle class has better access to vaccination and people with social and/or financial capital are jumping the queues.
Granting those who have received a vaccination extra rights, especially if the rollout has been inequitable, while denying these rights to those who are not yet vaccinated, is unfair and should be avoided. If proof of vaccination entitles the holder to relatively easy travel between Member States, proof of a recent negative test should be equally valid. Furthermore, governments should make such tests, with quick result delivery, as widely accessible as possible.
We believe that until access to vaccination is generalized, if governments grant free movement to vaccination certificate holders, they should also provide ample and cheap opportunities for obtaining test results quickly for those who are unvaccinated and treat a recent negative test result as equivalent to proof of vaccination.
Previously on Liberties: