The Digital Green Certificate a.k.a. Vaccination Passport - where are we at?

“We need the Digital Green Certificate to re-establish our confidence in the Schengen zone while continuing to fight the COVID-19 pandemic” affirmed the Chair of the Civil Liberties Committee (LIBE) Juan Fernando López Aguilar (S&D). He continued “The certificate cannot be a precondition for free movement as this is a fundamental right in the European Union, and it cannot lead to discrimination against those individuals who do not hold one. Citizens’ data must be safe and only necessary data should be included”.

López Aguilar is referring to the European form of the vaccination passport, formally called Digital Green Certificate, a document aimed at facilitating free movement within the EU during the Covid-19 pandemic. The certificate will be valid in all EU Member States, and in Iceland, Lichtenstein, Norway and Switzerland. It will be available for free from June 2021 (technically), both in paper and digital version, and will be legally-binding for EU countries. The authenticity of such certificates will be ensured by a QR code and a digital signature. Additionally, the DGC will be characterized by a temporary nature, and will be, theoretically speaking, useless when the WHO declares the international health emergency is over.

This comes as an emergency solution to ensure the protection of Article 21 of the Treaty on the Functioning of the European Union (TFEU): “Every EU citizen has the right to move and reside freely within the territory of the Member States”. Indeed, EU citizens’ right to move freely within the Schengen area has been severely impacted due to the Covid-19 pandemic. For sure, some citizens have been more affected than others, one need only think of people living in border regions and crossing borders daily, be it for work, education, family or any other reason.

The Council adopted a new Recommendation last October 13th in order to ensure a well-coordinated European approach to the adoption of such restrictions on freedom of movement. The Recommendation 2020/1475, set common criteria and thresholds for policy makers when deciding whether to introduce restrictions to free movement, and a coordinated approach as to the measures, if any, which may appropriately be applied to people moving between areas. In compliance with the different requirements, travelers have been asked to provide various types of documentary evidence (test results, medical declarations, etc), but the absence of standardized formats of such documents resulted in travelers experiencing problems in the acceptance of their documents (which in turn led to missing the only flight you could find and paid an exaggerated amount of money for! Just to give an example).

An additional document is about to be added to this endless list: Member States are working on developing vaccination certificates/passports.

On March 24th, during the first plenary sitting, Mrs Zacarias, the Portuguese Under-Secretary of State and representative for the Council, opened the discussion about the Digital Green Certificate (DGC). A Commission representative was there as well: the Vice-President of the European Commission for Interinstitutional Relations, Maroš Šefčovič. To be accurate, the Commission has been doing the majority of work: it has been cooperating with the Member States in the eHealth Network (a voluntary network connecting national authorities responsible for eHealth) on preparing the interoperability of vaccination certificates. On January 27th 2021, the eHealth Network adopted guidelines on proof of vaccination for medical purposes, which was later updated on March 12th. These guidelines define the central interoperability elements, namely: a minimum dataset for vaccination certificates and a unique identifier.

The Commission proposed to establish an EU-wide framework for the issuance, verification and acceptance of vaccination certificates within the EU as part of a Digital Green Certificate. The DGC framework to be established should lay out the format and content of certificates on Covid-19 vaccination, testing and recovery. The above mentioned framework should also cover other certificates, such as negative tests and documents certifying that the person concerned has recovered successfully from a previous infection. In this way, the DGC allows people who are not vaccinated yet, and people who refuse the vaccine administration, to move more easily during the pandemic.

But this policy does not come without concerns. As Mr. López Aguilar’s witness proves, the most problematic areas are: the discriminatory nature the DGC could ending up have, EU citizens’ data protection, and the risk for the democratic nature of the decision-making process represented by the urgency procedure (Rule of Procedure number 163) - which was invoked by the Commission.

MEPs, such as Mrs. Sippel and Mr. López Aguilar (S&D), Mrs. In ’T Veld and Mr. Rodríguez Ramos (Renew), Mrs. Tardino and Mr. Madison (ID), Mrs. Strik and Mr. Lamberts (GREEN/EFA) insisted: the Digital Green Certificate must be non-discriminatory. Indeed, the final document published by the Commission states: “This Regulation cannot be interpreted as establishing an obligation or right to be vaccinated. The purpose of the certificates included in the “Digital Green Certificate” is to facilitate the exercise of free movement”.

Another big concern MEPs shed light on is data protection. The DGC will contain sensitive data concerning the state of health of EU citizens. Some EP members, namely Mrs. In ’T Veld (Renew) and Mr. Fitto (ECR), expressed concern on this specific aspect. The final 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) in this regard states: “the certificates should contain only such personal data as is necessary. Given that the personal data includes sensitive medical data, a very high level of data protection should be ensured”, and continues: “the “Digital Green Certificate” framework should not require the setting up and maintenance of a database at EU level, but should allow for the decentralised verification of digitally signed interoperable certificates”.

Commissioner Šefčovič, during the plenary sitting, invited the EP to support the call for the urgency procedure (Rule 163), essential in order to approve the DGC before the Summer season, which is an occasion for many European entrepreneurs, restaurateurs, and so many more workers categories to start working again. The urgency procedure allows for faster parliamentary scrutiny of the Commission’s proposals, while fully respecting its democratic prerogatives. Yet, some MEPs appeared disgruntled or worried: EPP’s leader, Mr. Weber reminded the Commission that the Certificate was proposed in autumn 2020, without a successful outcome; therefore, invoking the Rule 163 is, in his opinion, inappropriate. Whereas, Mr. Sanchez Amor, S&D, affirmed he welcomed the procedure. In the end, the urgency procedure was supported by the EP with 468 votes in favour, 203 against and 16 abstentions.

EU Member States can decide whether relieving restriction measures (such as quarantine) for travelers, yet, the decision has to be taken at a European level, and the degree of harmonisation on such matter has to be total, i.e. all EU States must recognise the same restriction measures for travelers.

As far as the Regulation on the DGC’s status is concerned (Regulation 2021/0068): it is currently at the 1st reading in the EP, thus we are awaiting Parliament's position after the first reading. Most likely, we will know more after April’s plenary, which will start on April 26th. The plenary will adopt its mandate for negotiations with the Council, which may include amendments to the Commission’s proposal. As the committee steering this file through Parliament, the Civil Liberties Committee can request to have the file back, in order to start the talks. The outcome of the negotiations among the co-legislators will have to be endorsed by both Parliament and Council.

If everything goes smoothly, vaccination included (they actually are the major driving force to go back to a quasi normal reality), the EU will make available the Digital Green Certificate, a.k.a. vaccination passport, in less than three months!

Giulia Grandin