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The Green Pass and freedom of movement for European citizens

28 June 2021

Savvas Savvides, Partner and Director of the Paphos Office at Michael Kyprianou & Co LLC

The right of EU citizens to move and reside freely in the European Union is one of the EU's most valuable achievements and an important driver of its economic growth and development as a fundamental principle.

The unprecedented spread of the coronavirus pandemic that has paralysed the planet for more than 18 months has brought with it severe restrictions by all countries and this has had a huge impact on both the movement of citizens and their freedom of movement within and outside the European Union (EU).

In order to protect their citizens all countries announced entry, exit restrictions that were applied to cross-border travellers and in cases of travel the strict measures required travellers to be quarantined or self-isolated and tested for the SARS-CoV-2 (COVID-19) infection before and/or after arrival in the designated country.

Due to this unprecedented situation for everyone, people living in border areas and crossing the border on a daily basis, whether for work, education, health care, family or other reasons, unfortunately could not remain unaffected.

According to Article 21(1) 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 EU Member States. However, Article 21(2) provides for the possibility for the EU to take action and adopt provisions to facilitate the right of citizens to move and reside freely within the territory of the Member States. If action is necessary to achieve this objective in order to facilitate the exercise of this right, the normal legislative procedure is followed.

But let us look at some examples of countries that have tried to create their own regulations before the European Union's official position on the “green passport”, so that we can take into consideration the comparison and an indication of what the development might have been if and when there was no coordination from the EU itself.

The first and most striking example of freedom of movement as a post COVID19 pandemic era example the world has seen across mass is that of Israel. The Israeli government, as part of its announcement of the freedom of movement of people after the Covid19, announced the operation of the so-called green passport which applied to those who had completed both doses of the approved vaccines.

This passport would be linked to a code that would give holders access to various businesses, services, etc. At the same time, it would record all the people who were in that particular place or using other places such as shopping centres, theatres, restaurants, and others and at the same time a record would be made of each one's entry and exit to these places.

This, of course, raises serious legal issues, such as the fact that it might constitute a violation of the individual's freedom to have his or her location and presence private at all times in any place he or she enters, leaves or uses.

Furthermore, the question arises as to what would happen if the EU were to adopt the same approach as that of Israel, with the green passport as a certification point. For example, what would happen if a person who has not been vaccinated, for whatever reason, but needs to enter a shopping centre in order to have access to primary services such as a pharmacy located in that shopping centre? Unfortunately, that person, would not have access to such services, simply because he does not have the green passport.

There has been strong disagreement on this issue, and more specifically on the identification of green passport holders, and as of this day there is no proper guideline as to what is right and wrong.

Moving on, in Lower Saxony, North Rhine-Westphalia, the aforementioned countries have announced through a marketing campaign that vaccinated persons will be given priority in various aspects of social and business life. But the German Ethics Council decided that such a policy would be unethical because it would violate the equality of citizens before the law.

The lawyer, Herbert Prandl, a columnist for the Süddeutsche Zeitung and one of the most influential scientists in the country, commented that this creates enormous problems in terms of the violation of people's basic rights in the pandemic. Prandl disagrees with the general lockdown and green passport measures as he considers them contrary to the principle of proportionality and believes that the vaccination passport measure follows the same logic.

Therefore, the single European policy proposed by the EU in fact offers other alternatives such as the PCR test, which is considered the most reliable testing methodology for detecting COVID19 infected cases and their contacts. In the course of the pandemic, a new generation of faster and cheaper tests became available throughout the European market: the so-called rapid antigen tests. If it were not for the European directive on implementation, it is certain that there would be discrimination against the citizens of each country.

At this point another example can be considered, that of Finland, which planned to issue a vaccination certificate similar to that of Denmark and Sweden, which it called a "vaccination passport".

What is certain is that if permission were granted to pursue this policy, these countries would issue this “vaccination passport” as a certificate, which would be used as a key for individuals who are residents in these countries travel. Nonetheless, the risk that it would not be accepted by other countries and would effectively be ‘good-for-nothing’ for its holders would remain.

I will not go into further detail about the economic consequences that a different implementation by each country would bring about, because I think it would be patently obvious that there would be enormous economic damage due to the fact that people would not be able to move freely in and out of Europe.

On the contrary, I will refer to one of the most important positive points concerning the issuing of the “passport”, and that is the protection of the personal data of the holders has been considered at a very high level. We must emphasise that there will be no central data bank at EU level and that the possession of a 'green passport' type certificate should not be a prerequisite for the exercise of free movement or the use of transport and travel services.

What we need to take seriously is that a pan-European single "green passport" can be an important tool towards the necessary restart of the economy and the free and safe movement of people after the pandemic crisis.

It should be stressed, however, that according to the World Health Organisation, once we overcome the COVID-19 pandemic, these provisions should be suspended, as the requirement for citizens to produce health documents when exercising their right to free movement will no longer be justified.

In my personal opinion, I agree with the fact that there should and must be an ad hoc policy and that the EU proposals are good. At the same time, however, I also sympathise and support those who do not wish to be vaccinated for their own personal or medical reasons, bearing in mind that the European Union has also taken care of these cases, respecting human rights. Once again, the EU is proving that it remains a shield for the protection of human rights and freedom, even though it is facing an unprecedented pandemic such as the one we are currently experiencing, with all the challenges and difficulties that this entails.

The content of this article is valid as at the date of its first publication. It is intended to provide a general guide to the subject matter and does not constitute legal advice. We recommend that you seek professional advice on your specific matter before acting on any information provided. For further information or advice, please contact Savvas Savvides.

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