EU COVID-19 Certificates: A Critical Analysis

Abstract

On 17 March 2021, the European Commission put forward its Proposal for a Regulation on Digital Green Certificates, which would facilitate European Union (EU) cross-border movement during the COVID-19 pandemic. The Regulation on the EU Digital COVID Certificate was adopted on 14 June 2021 and it will start to apply from 1 July 2021. This article examines the main declared goals of the new Regulation – the first being that Digital COVID Certificates facilitate safe cross-border movement, the second being that they preclude more restrictive national measures, the third being that they prevent discrimination and the fourth being that they coordinate Member States’ actions. In so doing, it highlights the main benefits and weaknesses of the Regulation, but it also goes beyond the Regulation by tackling broader questions of EU law that will be of relevance even once the pandemic is over. In this respect, the paper highlights the importance of science in assessing the proportionality of pandemic-related measures and of choosing the least restrictive and the most individualised options when restricting free movement due to public health reasons. It also identifies the effects EU certificates will have on Member States’ regulation of national COVID-19 certificates, notably those designed for other purposes than cross-border travel, and it shows that there is a thin line between the EU’s and national competences in this area.