Explanatory Memorandum to COM(2022)681 - Amendment of Recommendation (EU) 2022/107 on a coordinated approach to facilitate safe free movement during the COVID-19 pandemic - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)681 - Amendment of Recommendation (EU) 2022/107 on a coordinated approach to facilitate safe free movement during the COVID-19 ... |
|---|---|
| source | COM(2022)681  |
| date | 14-10-2022 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
When the Commission adopted, on 25 November 2021, its proposal for what would become Council Recommendation (EU) 2022/107 on a coordinated approach to facilitate safe free movement during the COVID-19 pandemic 1 , the epidemiological situation regarding the COVID-19 pandemic was significantly different from today. At that point in time, the Delta variant of concern was still prevalent in the Union. More than ten months later, the highly transmissible Omicron variant has – in the form of different sub-variants – become the dominant variant in the Union 2 .
Omicron is less severe than the previously observed Delta variant, which can be attributed at least partially to the protective effect of vaccination and previous infection 3 . As a result, and in combination with these higher levels of protection, pressure on healthcare systems currently remains at manageable levels, even during momentary peaks of infections such as the wave driven by the Omicron BA.4 and BA.5 sub-variants observed during the summer of 2022.
As the Commission has continuously emphasised, any free movement restrictions put in place in response to the COVID-19 pandemic must not extend beyond what is strictly necessary to safeguard public health. As noted in points 1 and 2 of Recommendation (EU) 2022/107, any such restrictions should, in accordance with the principles of necessity and proportionality, be lifted as soon as the epidemiological situation allows. By August 2022, Member States had lifted all measures affecting free movement of persons in the Union, including the requirement for travellers to hold an EU Digital COVID Certificate.
To reflect the current situation, the Commission proposes to adapt the approach set out in Recommendation (EU) 2022/107. In particular, the Recommendation should emphasise that, at this stage of the pandemic, Member States should in principle not impose any pandemic-related restrictions to the free movement of persons on the grounds of public health. The summer wave of 2022 exemplifies how high virus circulation, following the emergence of a new variant of concern, does not necessarily lead to substantial pressure on national healthcare systems. This highlights the importance of a prudent approach when considering the introduction of travel restrictions based on the number of cases or on the presence of a new variant.
At the same time, as noted by the Commission in its Communication of 2 September 2022 4 , the global COVID-19 pandemic is not over. New waves of infections that could cause the epidemiological situation to worsen, including as a result of the emergence of a new variant of concern, cannot be excluded. Indeed, as reported by the European Centre for Disease Prevention and Control (ECDC) on 7 October 2022, the epidemiological picture suggests increasing transmission in most Member States, however with no indication of changes in the distribution of circulating variants 5 . The Commission therefore called on Member States to continue coordinating preparedness efforts across the Union. As part of these efforts, on 29 June 2022, the European Parliament and the Council extended the period of application of Regulation (EU) 2021/953 on the EU Digital COVID Certificate until 30 June 2023 6 .
The extension of the EU Digital COVID Certificate framework ensures that Union citizens can continue to benefit from interoperable and mutually accepted certificates of COVID-19 vaccination, test and recovery in situations where Member States might consider it necessary to temporarily reintroduce certain restrictions to free movement based on public health. At the same time, it is important to underline that Regulation (EU) 2021/953 in no way obliges Member States to require proof of vaccination, test or recovery status in the context of the exercise of free movement 7 .
Where, in response to a severe worsening of the epidemiological situation, a Member State considers that free movement restrictions are nevertheless necessary to safeguard public health and proportionate, those restrictions should be limited to requiring travellers to be in the possession of a valid EU Digital COVID Certificate. To determine whether a situation should be qualified as a severe worsening of the epidemiological situation, Member States should in particular take into account the strain on their healthcare system due to COVID-19, notably in terms of admission to and number of hospital and intensive-care unit inpatients. In this context, the ECDC publishes relevant data on the development of the epidemiological situation 8 .
Member States should also assess whether such restrictions are likely to have a positive impact on the epidemiological situation, including a significant decrease in the strain placed on national healthcare systems, given that domestic factors are normally more powerful drivers of the epidemiological situation than cross-border travel. In such situations, domestic non-pharmaceutical interventions, such as mask-wearing, ventilation and physical distancing, rather than travel restrictions, may be effective in slowing down the spread of COVID-19, if implemented early and comprehensively and sufficiently put into practice by society 9 .
When it comes to the possible requirement to be in the possession of a valid EU Digital COVID Certificate, the amendments introduced by Regulation (EU) 2022/1034 of the European Parliament and of the Council 10 should be reflected in Recommendation (EU) 2022/107. First, it should be clarified that EU Digital COVID Certificates issued to persons participating in clinical trials for COVID-19 vaccines may be accepted by other Member States in order to waive restrictions to free movement. To facilitate the exercise of free movement of Union citizens who have received a COVID-19 vaccine that has completed the WHO emergency use listing procedure, Member States should also be recommended to accept EU Digital COVID Certificates issued following the administration of such vaccines. In addition, test and recovery certificates can now be issued on the basis of laboratory-based antigenic assays.
Given their specific situation or essential function, certain categories of travellers should be exempted from a possible requirement to be in the possession of an EU Digital COVID Certificate. In light of the current security situation, it is important that this list expressly includes diplomats, staff of international organisations, people invited by international organisations whose physical presence is required for the well-functioning of these organisations, military personnel, humanitarian aid workers and civil protection personnel. The list should also include persons covered by Article 2 of Council Implementing Decision (EU) 2022/382 11 and be consistent with the Commission proposal for a Council Recommendation on a coordinated approach to travel to the Union during the COVID-19 pandemic 12 . At the same time, this should not prevent Member States from offering vaccination and testing to these categories of persons.
To be able to react quickly to newly emerging SARS-CoV-2 variants, the ‘emergency brake’, when measures additional to the EU Digital COVID Certificate could be taken, should be maintained. To align it with the changes outlined above, it should be clarified that the emergency brake procedure could be used in response to the emergence of a new SARS-CoV-2 variant of concern or interest, with the aim of slowing down its spread by means of travel restrictions, buying time to mobilise surge hospital capacity, and triggering vaccine development. It could also be used in situations where the epidemiological situation worsens rapidly and severely in a way that suggests the emergence of a new SARS-CoV-2 variant of concern or interest.
Where a Member State introduces a requirement to present a valid EU Digital COVID Certificate, or where it takes additional measures in accordance with the emergency brake procedure, it should swiftly inform the Commission and other Member States accordingly through the Integrated Political Crisis Response (IPCR) network and provide information as to the reasons, expected impact, entry into force and duration of any such travel restrictions. This should include information as to why the introduction of such travel restrictions complies with the principles of necessity and proportionality, for example because of the particular geographical situation of the Member State concerned or the particular vulnerabilities of its national healthcare system.
To obtain timely, relevant and representative information on the emergence and circulation of SARS-CoV-2 variants of concern or interest, Member States should assess the circulation of different SARS-CoV-2 variants in the community by selecting representative samples for sequencing, carry out genetic characterisation and report variant typing results in line with the sequencing guidance published by the ECDC 13 .
It also remains important to ensure that information on any new measures is publically available as early as possible. Indeed, as noted by the Commission in its Communication of 2 September 2022, Member States should do their utmost to ensure that potential travellers are well-informed about possible travel restrictions they may face when entering another Member State. The Re-Open EU web platform 14 remains a key point of reference for anyone travelling in the Union.
The Commission also proposes to do away with the traffic light map 15 published by the ECDC since the adoption of Council Recommendation (EU) 2020/1475 16 in October 2020. In view of epidemiological developments, the methodology of the map was adapted in February 2021 17 , June 2021 18 , and January 2022 19 . Its latest iteration, using the 14-day notification rate weighted by vaccine uptake, was based on experiences with the Delta variant. However, the high infection numbers caused by the Omicron variant resulted in large parts of the map being marked in ‘dark red’ despite all Member States having lifted their free movement restrictions. In addition, as Member States adapted their testing regimes, multiple regions appeared in ‘dark grey’ due to reported testing rates having fallen below the threshold established by Recommendation (EU) 2022/107. This shift of testing strategies towards representative samples of the population will not change in the foreseeable future. As a result, the traffic light map had become an inadequate depiction of the epidemiological situation in the Union. Following discussions with the Member States and the Commission, the ECDC already temporarily suspended the publication of the map in July 2022.
Consequently, the Commission also proposes to remove, together with the traffic light map, the references to specific additional measures for persons travelling from ‘dark red’ areas. In any event, the ECDC will continue publishing data on relevant epidemiological indicators 20 . This ensures the continued possibility to compare the epidemiological situation across different regions, in particular in the event of a worsening of the epidemiological situation.
Finally, the mandatory submission of passenger locator forms (‘PLF’) in the context of intra-EU travel for contact-tracing purposes constitutes an additional requirement for the exercise of free movement. Such a requirement is thus justified only if necessary and proportionate. In particular, Member States should not require travellers using private transport, be it cars, bikes or on foot, to submit PLF. This is because their exposure is necessarily less intensive than in the case of public transport and because they will typically know the identities of their fellow travelling companions.
At the same time, should Member States wish to activate contact tracing of cross-border passengers, common tools, such as the EU digital Passenger Locator Form and the PLF Exchange Platform, are available to exchange passenger data to enhance their contact tracing capabilities while limiting burdens on passengers and transport operators. To avoid the need for the submission of PLF, Member States could, where possible under national law and in compliance with data protection rules, also consider using existing passenger data for the purposes of contact tracing.
The Commission, with the support of the ECDC, will continue its regular review of Recommendation (EU) 2022/107. Where necessary, it will propose further amendments in light of new epidemiological developments.
• Consistency with existing policy provisions in the policy area
This recommendation serves to implement the existing provisions related to restrictions of the freedom of movement on grounds of public health.
• Consistency with other Union policies
This recommendation is in line with other Union policies, including those regarding public health and internal border controls.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The Treaty on the Functioning of the European Union (TFEU), and in particular Articles 21(2), 168(6) and 292.
• Subsidiarity (for non-exclusive competence)
Article 292 TFEU enables the Council to adopt recommendations. According to this provision, the Council shall act on a proposal from the Commission in all cases where the Treaties provide that it shall adopt acts on a proposal from the Commission.
This applies in the current situation, as a consistent approach is necessary to avoid disruptions caused by unilateral and not sufficiently coordinated measures restricting free movement within the Union. Article 21(1) TFEU stipulates that every citizen of the Union shall have 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. If action by the Union should prove necessary to attain this objective, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt provisions with a view to facilitating the exercise of these rights.
Pursuant to Article 168(6), the Council, on a proposal from the Commission, may also adopt recommendations for the purposes of ensuring a high level of human health protection in the definition and implementation of all Union policies and activities
• Proportionality
The adoption of unilateral or uncoordinated measures is likely to lead to restrictions on free movement that are inconsistent and fragmented, resulting in uncertainty for Union citizens when exercising their Union rights. The proposal does not go beyond what is necessary and proportionate for achieving the intended objective.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
n.a.
• Stakeholder consultations
The proposal takes into account the discussions held at regular intervals with Member States, the information available on the evolving epidemiological situation, and relevant available scientific evidence.
• Impact assessment
n.a.
• Fundamental rights
Freedom of movement is a fundamental right enshrined in Article 45 of the Charter of Fundamental Rights of the European Union. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedom of others. Article 21 of the Charter prohibits restriction on ground of nationality within the scope of application of the Treaties.
Any limitations to the freedom of movement within the Union justified on grounds of public health must be necessary, proportionate and based on objective and non-discriminatory criteria. They must be suitable for securing the attainment of the objective that they pursue; and not go beyond what is necessary in order to attain that objective.
4. BUDGETARY IMPLICATIONS
None.
5. OTHER ELEMENTS
• Detailed explanation of the specific provisions of the proposal
–The absence of pandemic-related free movement restrictions, including the obligation to be in possession of an EU Digital COVID Certificate, should be the norm.
–If, in response to a severe worsening of the epidemiological situation, free movement restrictions are nevertheless necessary to safeguard public health and proportionate, they should be limited to the requirement to be in the possession of an EU Digital COVID Certificate, and should exempt essential travellers, children and cross-border commuters. If a Member State introduces such restrictions, it should swiftly provide the Commission and other Member States with information as to the reasons, expected impact, entry into force and duration, and should lift them as soon as the epidemiological situation allows. Such restrictions should be discussed within the Integrated Political Crisis Response (IPCR) network, including with a view to ensuring consistency with the rules on travel from third countries.
–Member States should accept vaccination certificates issued in line with Regulation (EU) 2021/953 for a COVID-19 vaccine that has completed the WHO emergency use listing procedure. Member States could also accept vaccination certificates issued to participants in clinical trials pursuant to Article 5(5) of Regulation (EU) 2021/953.
–The point on test certificates also includes certificates based on laboratory-based antigenic assays included in the EU common list of COVID-19 antigen tests as provided for in Regulation (EU) 2021/953.
–The point on certificates of recovery is limited to a cross-reference to Regulation (EU) 2021/953, also in view of the possibility to issue such certificates based on antigen tests introduced by Commission Delegated Regulation (EU) 2022/256 21 .
–The list of essential travellers should also include diplomats, staff of international organisations or people invited by them, military personnel, humanitarian aid workers, civil protection personnel and persons covered by Article 2 of Council Implementing Decision (EU) 2022/382 and be consistent with the list provided for in the Council Recommendation on travel from third countries.
–Additional measures could be taken as an ‘emergency brake’ to ensure a coordinated approach when faced with the emergence of a new SARS-CoV-2 variant of concern or interest.
–Member States should assess the circulation of different SARS-CoV-2 variants in the community by selecting representative samples for sequencing, carry out genetic characterisation and report variant typing results in line with the sequencing guidance published by the ECDC.
–Where a Member State triggers the emergency brake in response to the emergence of a new SARS-CoV-2 variant of concern or interest, it should not require travellers with an essential function or need or cross-border commuters to undergo quarantine or self-isolation.
–The EU traffic light map set out in the Annex to the Recommendation and the relevant references in points 17 to 19 are deleted, including the corresponding references to ‘dark red’ areas.
–The point on PLF is adapted to align it with the Commission Communication of 2 September 2022 and to recommend that Member States not require the submission of PLF for travel with private transport or on foot.