Last May the 20th a provisional political agreement between European Parliament and the Council on the Regulation governing the EU Digital Covid Certificate was reached. This certificate, previously known as Digital Green Certificate, will be a fundamental tool for travelling across Europe. It’s expected to be operative from the end of June and will allow the freedom of movement of EU citizens and non-EU citizens permanent residents in the European area.
European Commission President Ursula von der Leyen, commenting on this news, said: “we are delivering on our commitment to have the EU Digital COVID Certificate up and running before the summer. European citizens are looking forward to travelling again, and today’s agreement means they will be able to do so safely very soon”.
Basically, the EU Digital Covid Certificate framework is covering two proposal regulations. These regulations will have to be formally adopted by the European Parliament and the Council and will enter into force on July the 1st.
The first one, proposal regulation 2021/0068 (COD), is laying down rules on EU citizens’ freedom of movement. The second proposal regulation, 2021/0071 (COD), then, is governing third-country nationals (non-EU citizens) legally staying or residing in the territories of Member States. All the Member states will have to roll out these regulations into the national system before the entry in force of the EU Digital Covid Certificate and it will not be easy its implementation, considering, hypothetically, technical issues or different legislation background of the European countries.
Freedom of movement in the European area as a fundamental right
Before indicating the most important features of the EU digital Covid Certificate and analyzing briefly the two proposed regulations, it’s necessary to introduce the “freedom of movement in the European area” issue. This topic is helpful to understand the brand-new EU digital Covid Certificate Framework, considering that the freedom of movement of EU citizens and third-country legally staying or residing in the territories of Member States is retrieved in the same regulations. On November the 1st 1993 the Member States citizens of the European Union acquired the status of “European Citizens”. This status is derived by the entry in force of the Maastricht Treaty (Tomkin Jonathan, 2011; Patricia Mindus, 2017).
According to article 8 of the Maastricht Treaty, “every person holding a nationality of a Member State shall be a citizen of the European Union”. Moreover, article 18 of the Maastricht Treaty establishes the right to free movement of the European Citizens within the European Union. (Patricia Mindus, 2017). Freedom of movement is a fundamental right that is foreseen in the current European treaties and legislation. Indeed, the European Union citizenship is disciplined in article 20 of the Treaty of Functioning of the European Union (TFEU), while the freedom of movement of the European Citizens is regulated in article 21 of the TFEU. Precisely, this article is mentioned as the legal basis of the proposal 2021/0068 (COD) regulating the EU Citizens Digital Covid Certificate.
According to article 3 of Protocol No. 4 of the European Convention for the Protection of Human Rights, “everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence”. Besides, under article 45, paragraph 1 of EU Charter of Fundamental Rights (Nice Charter) “every citizen of the Union has the right to move and reside freely within the territory of the Member States”. With regard to third-country nationals legally staying or residing in the territories of Member States the COUNCIL DIRECTIVE 2003/109/EC, called the Long-Term Residents Directive, is also regulating the status of these non-EU citizens regularly living in Europe.
Concerning the freedom of movement and residence of the third-country nationals in the European area, article 45, paragraph 2 is clarifying that “freedom of movement and residence may be granted, in accordance with the Treaties, to nationals of third countries legally resident in the territory of a Member State”. Finally, article 77(2)(c) TFEU foresees that the third countries nationals legally staying or residing in the European Union shall have the freedom to travel within the Union for a short period.This article is the legal basis of 2021/0071 (COD) proposal regulation governing the third countries nationals Digital Covid Certificate.
EU digital Covid Certificate features
The European Commission pointed out the EU Digital Covid Certificate key features. Essentially, it will cover the vaccination, test, and recovery. In addition, it will be available in digital and paper-based format, having to contain a digitally signed QR code. (European Commission, 20 May 2021)
EU Citizens Digital Covid Certificate
This future regulation [2021/0068 (COD)] is expecting some Covid-19 dispositions as Vaccination Certificate (article 5), Test Certificate (article 6), Certificate of Recovery (article 7). The Purpose of these dispositions is to standardize all over Europe the above-mentioned Covid-19 certificates. Finally, article 1 is remarking that the aim of this regulation is facilitating “holders the exercise of their right to free movement during the COVID-19 pandemic “.
Third-country nationals legally staying or legally residing in the territories of Member States
According to article 1 of the proposed regulation 2021/0071 (COD), Member states shall apply the rules laid down the future regulation concerning the EU Citizens Digital Covid Certificate [2021/0068 (COD)]. This means that it’s expected a uniform Digital Covid Certificate Framework for EU Citizens and third countries nationals legally staying or residing in Europe.
The European Legislator has missed the opportunity to introduce a Digital Covid Certificate also for the third countries nationals visiting temporary Europe. This tool would be very useful for tracing third countries’ nationals Covid-19 cases. Secondly, On May 20th 2021 European Commission Ursula von der Leyen said: that the Digital Covid Certificate “… fully respects citizens’ fundamental rights, including protection of personal data…”. (European Commission, 20 May 2021) However, for making sure that will be respected EU citizens and third countries nationals fundamental rights, it will have to wait until July the 1st 2021.