On March 17th, 2021, the European Commission proposed a Regulation on a framework for the issuance, verification and acceptance of interoperable certificates on vaccination, testing and recovery to facilitate free movement during the COVID-19 pandemic (Digital Green Certificate). Another proposal for a Regulation on Digital Green Certificates for third-country nationals legally staying or residing in the EU was also made available to the public.
What is the Digital Green Certificate?
Firstly, Digital Green Certificate can be issued only to European Union citizens or their family members, regardless of their nationality. At the same time, third country nationals who do not fall within the scope of the above-mentioned regulation, but who reside or stay legally in the territory of a EU Member State and who are entitled to travel to other Member States shall be applied the provisions which are applicable to EU citizens.
As per the proposal for a regulation, Digital Green Certificate means interoperable certificates containing information about the vaccination, testing and/or recovery status of the holder issued in the context of the COVID-19 pandemic.
Thus, the Digital Green Certificate practically incorporates three types of certificates, as follows:
a certificate confirming that the holder has received a COVID-19 vaccine in the Member State issuing the certificate (‘vaccination certificate’);
a certificate indicating the holder’s result and date of a NAAT test or a rapid antigen test listed in the common and updated list of COVID-19 rapid antigen tests established on the basis of Council Recommendation 2021/C 24/0121 (‘test certificate’);
a certificate confirming that the holder has recovered from a SARS-CoV-2 infection following a positive NAAT test or a positive rapid antigen test listed in the common and updated list of COVID-19 rapid antigen tests established on the basis of Recommendation 2021/C 24/01 (‘certificate of recovery’).
It can be issued in a digital or paper-based format, or both, and free of charge.
What does the Digital Green Certificate mean for the EU citizens?
One of the recitals of the proposal for a regulation states that a common framework for the issuance, verification and acceptance of interoperable certificates on COVID-19 vaccination, testing and recovery should be established in order to facilitate the exercise of the right to move and reside freely within the territory of the EU Member States. However, it is provided that this legal framework should not be understood as facilitating or encouraging the adoption of restrictions to free movement, or other fundamental rights, in response to the pandemic.
In light of the Recommendation (EU) 2020/1475, any restrictions to the free movement of persons within the EU put in place to limit the spread of COVID-19 should be based on specific and limited public interest grounds, namely the protection of public health. It is necessary for such limitations to be applied in compliance with the general principles of EU law, in particular proportionality and non‐discrimination. Any measures taken should thus not extend beyond what is strictly necessary to safeguard public health.
As a consequence, the Digital Green Certificate could be deemed as a health passport within the EU, as long as the epidemiological situation imposes it.
On the other hand, premises for non-discrimination between vaccinated and non-vaccinated persons are created, by the implementation of COVID-19 test certificates and certificates for persons who have recovered from COVID-19, not only vaccination certificates. As the European Commission also stated, the Digital Green Certificate will not be a pre-condition to free movement and also no controls at internal borders to check certificates will be introduced.
What are the next steps?
In order to entry into force, the proposal for a regulation must be adopted by the European Parliament and Council, and also published in the Official Journal of the European Union.
It goes without saying that the Digital Green Certificate system will be suspended once the World Health Organization (WHO) declares the end of the international public health emergency caused by COVID-19.