Every citizen of the Union has the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give effect to them. Directive 2004/38/EC of the European Parliament and of the Council(1) lays down detailed rules as regards the exercise of that right
Facilitating freedom of movement is one of the key preconditions for starting an economic recovery.
On 30 January 2020, the Director-General of the World Health Organization (‘WHO’) declared a public health emergency of international concern over the global outbreak of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), which causes coronavirus disease 2019 (COVID‑19). On 11 March 2020, the WHO made the assessment that COVID-19 can be characterized as a pandemic.
To limit the spread of the virus, the Member States have adopted various measures, some of which have had an impact on Union citizens’ right to move and reside freely within the territory of the Member States, such as restrictions on entry or requirements for cross-border travellers to undergo quarantine/self-isolation or a test for SARS-CoV-2 infection. Such restrictions have detrimental effects on citizens and businesses, especially cross-border workers and commuters or seasonal workers.
On 13 October 2020, the Council adopted Council Recommendation (EU) 2020/1475 on a coordinated approach to the restriction of free movement in response to the COVID-19 pandemic(2). That Recommendation establishes a coordinated approach on the following key points: the application of common criteria and thresholds when deciding whether to introduce restrictions to free movement, a mapping of the risk of COVID-19 transmission based on an agreed colour code, and a coordinated approach as to the measures, if any, which may appropriately be applied to persons moving between areas, depending on the level of risk of transmission in those areas. In view of their specific situation, the Recommendation also emphasises that essential travellers, as listed in its point 19, and cross-border commuters, whose lives are particularly affected by such restrictions, in particular those exercising critical functions or essential for critical infrastructure, should be exempted from travel restrictions linked to COVID-19.
Using the criteria and thresholds established in Recommendation (EU) 2020/1475, the European Centre for Disease Prevention and Control (‘ECDC’) has been publishing, once a week, a map of Member States, broken down by regions, in order to support Member States’ decision-making(3).
As emphasised by Recommendation (EU) 2020/1475, any restrictions to the free movement of persons within the Union put in place to limit the spread of COVID-19 should be based on specific and limited public interest grounds, namely the protection of public health. It is necessary for such limitations to be applied in compliance with the general principles of Union law, in particular proportionality and non‐discrimination. Any measures taken should thus be strictly limited in scope and time in line with the effort to restore a fully functioning Schengen area without internal border controls and should not extend beyond what is strictly necessary to safeguard public health. Furthermore, they should be consistent with measures taken by the Union to ensure seamless free movement of goods and essential services across the Single Market, including those of medical supplies and medical and healthcare personnel through the so-called “Green Lane” border crossings referred to in the Commission Communication on the implementation of the Green Lanes under the Guidelines for border management measures to protect health and ensure the availability of goods and essential services(4).
People who are vaccinated, have a negative NAAT test that is less than [72 hours] old or have a negative rapid antigen test that is less than [24 hours] old, and people who have tested positive for specific antibodies to the spike protein within the last [6 months], have a significant reduced risk of infecting people with SARS-CoV-2, according to current medical knowledge. The free movement of persons who based on sound scientific evidence do not pose a significant risk to public health, for example because they are immune to and cannot transmit SARS-CoV-2, should not be restricted, as such restrictions would not be necessary to achieve the objective pursued.
To ensure harmonised use of the certificates, the duration of their respective validity should be set in this Regulation. However, at this stage, it is still unclear whether vaccines prevent transmission of COVID-19. Similarly, there is insufficient evidence on the duration of effective protection against COVID-19 following recovery from a prior infection. Therefore, it should be possible to adjust the duration of validity based on technical and scientific progress.
Many Member States have launched or plan to launch initiatives to issue vaccination certificates. However, for these to be used effectively in a cross-border context when citizens exercise their free movement rights, such vaccination certificates need to be fully interoperable, compatible, secure and verifiable. A commonly agreed approach is required among Member States on the content, format, principles, technical standards and level of protection of such certificates.
Unilateral measures in this area have the potential to cause significant disruptions to the exercise of free movement, and to hinder the proper functioning of the internal market, including the tourism sector, as national authorities and passenger transport services, such as airlines, trains, coaches or ferries, are confronted with a wide array of diverging document formats, not only regarding a person’s vaccination status but also on tests and possible recovery from COVID-19. [Am. 8]
The European Parliament called in its resolution of 3 March 2021 on establishing an EU strategy for sustainable tourism for a harmonised approach across the EU on tourism, both implementing common criteria for safe travel, with an EU Health Safety protocol for testing and quarantine requirements and calling for a common vaccination certificate, once there is sufficient evidence that vaccinated persons do not transmit the virus, or mutual recognition of vaccination procedures.
Without prejudice to the common measures on the crossing of internal borders by persons as laid down in the Schengen acquis, in particular in Regulation (EU) 2016/399 of the European Parliament and of the Council(5), and for the purpose of facilitating the exercise of the right to move and reside within the territory of the Member States, a common framework for the issuance, verification and acceptance of interoperable certificates on COVID-19 vaccination, testing and recovery entitled “EU COVID-19 Certificate” should be established which should be binding and directly applicable in all Member States. All Union transport hubs, such as airports, ports, railway and bus stations, where the certificate is being verified, should apply standardised and common criteria and procedures for the verification of the EU COVID-19 certificate on the basis of guidance developed by the Commission.
(Member States, when applying this Regulation, should accept every type of certificate issued in accordance with this Regulation. The interoperable certificates should have equal value during the duration of their validity.
This Regulation is intended to facilitate the application of the principles of proportionality and non-discrimination with regard to possible restrictions to free movement and other fundamental rights as a result of the COVID-19 pandemic, while pursuing a high level of public health protection and should not be understood as facilitating or encouraging the adoption of restrictions to free movement, or other fundamental rights, in response to the pandemic. The exemptions to the restriction of free movement in response to the COVID-19 pandemic referred to in Recommendation (EU) 2020/1475 should continue to apply. Any need for verification of certificates established by this Regulation should not be able as such to justify the temporary reintroduction of border controls at internal borders. Checks at internal borders should remain a measure of last resort, subject to specific rules set out in Regulation (EU) 2016/399.