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Evaluating proportionality of restrictions on freedom of movement during the omicron wave: the case of digital covid certificates [July 2022]

  • July 22, 2022

LSTS/HALL PhD researcher Danaja Fabcic Povse ponders upon the proportionality of restrictions on freedom of movement with the use of EU digital covid certificates.

The EU digital covid certificates (hereafter: DCCs), set up under Regulation 953/2021 (hereafter: DCCR) operate under the assumption that the freedom of movement of certain citizens or residents poses a lesser public health risk, insofar they have recently tested negative, recently been infected, or have been vaccinated (rec. 7 of the DCCR). In order to prove their status, they can use EU digital covid certificates across the EU: the certificates are mutually interoperable regardless of the issuing Member State, and they are issued and verified according to the framework set up in the DCCR. At the time of adoption, the exact relationship between the virus, immunisation and transmission was still unclear, which was pointed out in several studies, such as the EU Parliamentary Research Service’s briefing dated 20 May 2021 (p. 6) or the ECDC’s Technical Report from 23 April 2021 (p. 3); nevertheless, it was hoped that through herd immunity we could curtail further spread.

Why is omicron a challenge? Unlike the previous variants, where previous immunisation (from either recent infection or vaccination) could limit infections, omicron is characterised by what scientists call immune escape. This means that in line with the outcomes of a study from the Imperial College London published in December 2021 on immunity against the omicron variant, previous infection does not protect against re-infection with omicron, and vaccines protect against severe disease and death rather than infection. Therefore, due to immune escape the transmission chain of the virus becomes particularly uncertain.

In this blogpost, I analyse whether the use of DCCs has been a proportionate measure impacting freedom of movement during the omicron wave, which will support my doctoral research project on the interaction of public health and non-discrimination law in the context of digital covid certificates.

Limiting or supporting freedom of movement?

From the perspective of the European legislator, the DCCR was set up with the goal of facilitating freedom of movement, countering the risk that if Member States did not accept each other’s testing and vaccination records that would restrict EU citizens from exercising their freedom of movement (see rec. 8 and 9 of the DCCR). It also aligned with the European Commission’s policies supporting vaccination, such as common purchase of vaccines, which would lead to herd immunity, help the pandemic turn endemic and reopen travel.

On the other hand, concerns have been raised about whether systems like DCCs instead restrict freedom of movement. After all, freedom of movement is one of the pillars of EU law, and together with its close cousin, the Schengen system, they allow for seamless movement across internal EU borders. Requiring travellers to show a pass seems antithetical to this principle. Moreover, certification fosters a false sense of security (Alemanno and Bialasewicz 2021, p. 12), since the perception of risk (Ada Lovelace Institute 2021, p. 4) shifts from a community context to a single pass holder, which is unrealistic in the middle of a pandemic.

The effects of the system under the DCCR are thus ambiguous at best, and calls for more – especially interdisciplinary – research to understand their impact. For the purposes of this analysis, I will assume the second view, namely that requiring DCCs is a restrictive measure compared to pre-pandemic travel.

Proportionality and mandatory public health measures

According to art. 45(3) of the Treaty on the Functioning of the EU, restrictions on freedom of movement must be justifiable in the light of protection of public health as well as proportionate.

The proportionality test was first established to apply to the EU law by the CJEU in Internationale Handelsgesellschaft case in 1970 (C-11/70)   and continued in the Fedesa case in 1990 (C-331/88). While generally it consists of three steps, in public health cases the CJEU usually only applies the first two (Goldner Lang 2021, pp. 18-19): suitability test and necessity test. This means that the court will consider the costs and benefits of the public health measure against protected interests in order to evaluate its lawfulness. Proportionality is explicitly mentioned in rec. 14 of the DCCR: DCCs facilitate the application of the principles of proportionality and non-discrimination with regard to restrictions to free movement during the COVID-19 pandemic, while pursuing a high level of public health protection.

A suitability test: does the measure objectively lead to the goal?

First, we need to establish what the goal of the DCCR is. There are several objectives pursued therein, including:

  1. to facilitate the application of the principles of proportionality and non-discrimination with regard to restrictions to free movement during the COVID-19 pandemic, while pursuing a high level of public health protection (recital 14 of the DCCR);
  2. to contribute to lifting of restrictions to free movement put in place by the Member States, in accordance with Union law, to limit the spread of SARS-CoV-2, in a coordinated manner (art. 1 of the DCCR);
  3. implicitly, to raise vaccination rates, which we can deduce from the EU’s support of high vaccination rates, coordinated approach between Member States, and risk-based measures.

While DCCs are not vaccination passes, since they cover both vaccination, recent infection and recent negative test, a 2022 Brueghel Institute study has suggested that requiring passes does lead to higher vaccination rates, which meets one of the goals of the regulation.

However, these goals all relate to public health objectives, while the passes are issued to individuals who are deemed to present a lesser risk due to their health status even though on an individual level the risk calculation is difficult. In the spring of 2021, it was reasonable to expect that rates would fall, since vaccines were being manufactured on a large scale and the main variant at the time (alpha) could be countered with high vaccination rates, leading to herd immunity. Testing was widely available and first at-home test kits could be obtained. However, the lawmakers obviously could not have predicted the eventual rise of delta and omicron, which spread very quickly and require much higher community levels of vaccination.

Necessity test: what could have been a less restrictive measure that still achieves the same goal?

During the two pandemic years, we have seen different measures relating to freedom of movement: lockdowns and travel bans, air bridges, special border corridors, travel bubbles, public health forms for travellers, contact tracing and so forth. Generally, passes such as DCCs are a less severe alternative to lockdowns, and a more effective alternative to travel bans (Montanari Vergallo et al 2021, pp. 6-7), which are largely ineffective at preventing the spread. The Regulation was initially foreseen to only apply for a year (art. 17 of the DCCR), though it has recently been extended to apply until June 30 2023, with a parliamentary review after six months. Should the regulation continue to be extended in the coming years, that could throw doubt on the “limited” nature of the measure.

Whether having an interoperability and verification regime in place is still necessary to achieve the desired objective depends on the goal pursued by the regulation. If the regulation addresses interoperability between Member State-issued certificates, then this goal is no longer necessary once Member States drop all restrictions and stop using certificates (as reportedly Belgium, for example, has temporarily done); however, if objectives instead relate to improving vaccination rates, then the objective is still relevant, as a “soft” measure that will help phase out the pandemic into an endemic. In that case, the continued use of DCCs would present a more proportionate alternative to mandatory vaccination.

Conclusions and further work

What does the above analysis tell us about the proportionality of the DCCs during the omicron wave?

First, DCCs do not exist in a vacuum – they were foreseen as a more proportionate alternative to periodic lockdowns, and on member states level they were accompanied by other public health measures, such as widespread vaccination campaigns.

Secondly, in the year since the adoption of the DCCR, the face of the pandemic has changed a lot – by summer of 2022, according to Re-open EU (the official website that provides information on travel and health measures in EU and Schengen Associated countries), most restrictions have been lifted while the cases are again (or still?) high even though the rate of testing has decreased.

Thirdly, the arrival of omicron has challenged the assumptions that the DCCR was based on regarding the immunity and transmission of covid-19, prompting questions about the instrument’s suitability that have not been addressed by the legislator.

Finally, despite the scepticism surrounding the adoption of covid passes and their unclear impact on freedom of movement, they have helped raise vaccination rates, which in the long term could ensure freer travel around the EU.

In a pandemic there is no such thing as a risk-free intervention – public health measures focus on mitigating risks rather than zero-risk (Sleat et al 2021, p. 2), which has been the guiding principle of many EU countries’ response. It is currently impossible to predict when the pandemic will become endemic, i.e., that the disease will still be present in our lives, but its outbreaks will become manageable, similar to the influenza. Regardless of when, or whether, that happens, governments should embed proportionality of the remaining public health measures, such as any eventual plans for mandatory vaccination (the proposals in Austria and France were eventually dropped), but also the more fundamental question whether individual risk assessment is compatible with public health’s communal approach (Ada Lovelace Institute 2021, p. 2).  This will involve evaluating what the desired objective(s) is, the de facto likelihood that the measures will achieve it (suitability), and assessing whether an alternative - less restrictive - measure would also work to obtain that objective (necessity).

22 July 2022

 

Disclaimer:

The author presented an alternate version of this contribution at the 8th European Health Law Conference in Ghent, Belgium, in April 2022, for which she won the prize for the best abstract at the conference’s PhD seminar.