Explanatory Memorandum to COM(2022)55 - Amendment of Regulation (EU) 2021/954 on the EU Digital COVID Certificate with regard to third-country nationals - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)55 - Amendment of Regulation (EU) 2021/954 on the EU Digital COVID Certificate with regard to third-country nationals. |
|---|---|
| source | COM(2022)55  |
| date | 03-02-2022 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
In accordance with the Convention implementing the Schengen Agreement 1 , third-country nationals legally residing or legally staying in a Member State may travel freely within the territories of the other Member States, provided that they fulfil certain conditions. The policy developed by the Union ensuring the absence of controls on persons when crossing the internal borders thus benefits not only Union citizens but also third country nationals that have the right to travel in the EU. However, some of the restrictions adopted by the Member States in order to limit the spread of severe acute respiratory syndrome coronavirus 2 (‘SARS-CoV-2’), which causes coronavirus disease 2019 (‘COVID-19’), have had an impact on the exercise of that right. These measures often consisted of restrictions on entry or other specific requirements applicable to cross-border travellers, such as to undergo quarantine or self-isolation or to be tested for SARS-CoV-2 infection prior to and/or after arrival.
To facilitate free movement during the COVID-19 pandemic, the European Parliament and the Council adopted, on 14 June 2021, Regulation (EU) 2021/953 2 based on Article 21 of the Treaty on the Functioning of the European Union (TFEU) establishing the EU Digital COVID Certificate framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test and recovery certificates. Regulation (EU) 2021/953 facilitates free movement by providing Union citizens and their family members, who may be third-country nationals, with interoperable and mutually accepted certificates on COVID-19 vaccination, testing and recovery that they can use when travelling. Where Member States waive certain restrictions on free movement for persons in the possession of proof of vaccination, test or recovery, the EU Digital COVID Certificate helps citizens to benefit from these exemptions.
On the same day, the European Parliament and the Council adopted Regulation (EU) 2021/954 3 based on Article 77 TFEU, to facilitate travel within the Schengen Area during the COVID-19 pandemic, extending the EU Digital COVID Certificate framework to third country nationals legally staying or residing in a Member State’s territory and who are entitled to travel to other Member States in accordance with EU law.
In addition, the EU Digital COVID Certificate system has proven to be the only functioning COVID-19 certificate system operational at international level on a large scale. As a result, the EU Digital COVID Certificate has gained increasing global significance and contributed to addressing the pandemic at the international level, by facilitating safe international travel and international recovery. By 31 January 2022, the three non-EU European Economic Area countries 4 , Switzerland 5 and 29 other third countries and territories 6 are connected to the EU Digital COVID Certificate system, with more expected to join in the future. The EU Digital COVID Certificate system has been recognised as one of the key digital solutions to restore international mobility 7 , with the International Air Transport Association urging countries to adopt the EU Digital COVID Certificate as the global standard 8 . The Commission will continue its efforts to support third countries interested in developing interoperable COVID-19 certificate systems. This may include offering additional open source reference solutions that allow for the conversion of third-country certificates into a format that is interoperable with the EU Digital COVID Certificate, as it is also possible to connect third countries the certificates of which are made interoperable by means of conversion 9 .
Since its adoption, the EU Digital COVID Certificate has been successfully rolled out across the Union, with more than one billion certificates issued by the end of 2021. The EU Digital COVID Certificate is thus a widely available and reliably accepted tool to facilitate not only free movement of Union citizens and their family members, but also intra-EU travel during the COVID-19 pandemic of the categories of third country nationals mentioned above.
Since the adoption of Regulations (EU) 2021/953 and 2021/954, the epidemiological situation with regard to the COVID-19 pandemic has evolved considerably. On the one hand, the vaccination uptake, including of booster doses, has increased worldwide.
On the other hand, the spread of the SARS-CoV-2 variant of concern ‘Delta’ in the second half of 2021 caused significant increases in the number of infections, hospitalisation and deaths, requiring Member States to adopt strict public health measures in an effort to protect their healthcare system capacity. In early 2022, the SARS-CoV-2 variant of concern ‘Omicron’ caused sharp increases in the number of COVID-19 cases, rapidly replacing ‘Delta’ and reaching an unprecedented intensity of community transmission across the Union and beyond.
Currently, it is not possible to predict the impact of a possible increase in infections in the second half of 2022. In addition, the possibility of a worsening of the pandemic situation because of the emergence of new SARS-CoV-2 variants of concern cannot be ruled out.
In view of the above, it cannot be excluded that Member States continue to require third country nationals legally staying or residing in a Member State’s territory and who are entitled to travel to other Member States in accordance with EU law, to present proof of COVID-19 vaccination, test or recovery beyond 30 June 2022, that is, the date when Regulations (EU) 2021/953 and 2021/954 are currently set to expire. It is thus important to ensure the possibility to make use of the EU Digital COVID Certificates beyond that date.
At the same time, given that any restrictions to the free movement of persons within the Union put in place to limit the spread of SARS-CoV-2, including the requirement to present EU Digital COVID Certificates, should be lifted as soon as the epidemiological situation allows, by amending Regulation (EU) 2021/954, the Commission proposes to maintain the existing references to Regulation (EU) 2021/953 and to make a dynamic reference to the same Regulation with regard to the duration of Regulation (EU) 2021/954.
• Consistency with existing policy provisions in the policy area
This proposal is without prejudice to the Schengen rules as regards the entry conditions for third country nationals. The proposed Regulation should not in any way be understood as encouraging or facilitating the reintroduction of border controls at internal borders, which must remain a measure of last resort subject to the conditions set out in Regulation (EU) 2016/399 (“the Schengen Borders Code”). 10
In its proposal for a Council Recommendation amending Recommendation (EU) 2020/912 on the temporary restriction on non-essential travel into the EU and the possible lifting of such restriction 11 , the Commission proposed to establish a clear link between Council Recommendation (EU) 2020/912 and the EU Digital COVID Certificate in order to assist Member States authorities in verifying the authenticity, validity and integrity of the certificates issued by third countries.
• Consistency with other Union policies
This proposal is part of the package of Union measures to respond to the COVID-19 pandemic. It builds, in particular, on the work carried out in the Health Security Committee, the eHealth Network, and the EU Digital COVID Certificate Committee.
This proposal complements proposal COM(2022) 50 final, which seeks to extend the duration of the application of Regulation (EU) 2021/953 on a framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test and recovery certificates (EU Digital COVID Certificate) to facilitate free movement during the COVID-19 pandemic.
This proposal also fully respects Member States’ competences in the definition of their health policy (Article 168 TFEU).
This proposal is consistent with the Union's policy on immigration of third country nationals.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
Article 77 i, point (c) TFEU stipulates that the Union shall set out the conditions under which legally staying or legally residing nationals of third countries shall have the freedom to travel within the Union for a short period. The ordinary legislative procedure applies.
The proposal would amend Regulation (EU) 2021/954, which is equally based on Article 77 i, point (c) TFEU.
• Subsidiarity (for non-exclusive competence)
The objectives of this proposal, namely to extend the application of Regulation (EU) 2021/954, cannot be achieved by the Member States independently. Action at Union level is thus necessary.
Failure to act at Union level would result in Regulation (EU) 2021/954 ceasing to apply and as a result third country nationals legally staying or residing in a EU/EEA Member State’s territory and who are entitled to travel to other Member States in accordance with EU law would no longer be able to request and eventually use an interoperable COVID-19 vaccination, test and recovery certificates.
• Proportionality
Union action can add considerable value in addressing the challenges identified above and is the only way by which a single, streamlined and accepted COVID-19 certificate framework can be achieved and maintained.
The adoption of unilateral or uncoordinated measures regarding COVID-19 health certificates may lead to measures that limit the possibility for third country nationals who are entitled to travel within the Union, to engage in such travel.
The proposed amendment should apply in line with Regulation (EU) 2021/953, as proposed to be amended by proposal COM(2022) 50 final, and consequently allows the use of the EU Digital COVID Certificate to be extended for a limited period of time as regards third country nationals who are lawfully residing or staying in the Union and entitled to travel within the Union.
• Choice of the instrument
A Regulation ensures the direct, immediate and common implementation of EU law in all Member States.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Stakeholder consultations
The proposal takes into account the discussions held at regular intervals with Member States authorities in different fora.
• Collection and use of expertise
The proposal builds on the epidemiological information and assessments provided by European Centre for Disease Prevention and Control (ECDC), the assessment of the safety, effectiveness and quality of COVID-19 vaccines carried out by the European Medicines Agency (EMA), the technical exchanges taking place within the Health Security Committee, its technical working group on COVID-19 diagnostic tests and the eHealth Network, as well as relevant available scientific evidence.
• Impact assessment
In view of the urgency, the Commission did not carry out an impact assessment.
• Fundamental rights
This proposal implies processing of personal data, including health data. There are potential impacts on individuals’ fundamental rights, namely Article 7 of the Charter on the respect of private life and Article 8 on the right to the protection of personal data. Processing the personal data of individuals, including collection, access and use of personal data, affects the right to privacy and the right to protection of personal data under the Charter. Interference with these fundamental rights must be justified.
As regards the right to the protection of personal data including data security, Regulation (EU) 2016/679 of the European Parliament and of the Council 12 continues to apply. No derogation from the data protection regime of the Union is envisaged and clear rules, conditions and robust safeguards must be implemented by Member States in line with the EU data protection rules.
4. BUDGETARY IMPLICATIONS
The financing of actions supporting this initiative will be covered by the Legislative Financial Statement submitted with the proposal COM(2022) 50 final.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
Not relevant.
• Detailed explanation of the specific provisions of the proposal
Article 1 of the proposal amends the duration of Regulation (EU) 2021/954.
Article 2 provides for an expedited entry into force of the Regulation.