Green Pass and vaccines: what the EU regulation does and does not say

19.10.2021 – 11.15 – The heterogenesis of ends is well known in history: that is, the unintended consequences produced by an intended action. In other words, put simply, you intend to achieve a certain effect and achieve the exact opposite. A classic case of heterogenesis of ends was the actions of Louis XVI during the French Revolution, when the ruler’s actions unintentionally accelerated the radicalisation of the revolutionaries and achieved the exact opposite of what he wanted.

Misinterpretations, extremist infiltration and the Fake News of its critics aside, is not the Green Passport issue a classic example of heterogenesis of ends?
Indeed, the European Union has presented the green certificate as a ticket to freedom, but it seems to have led to an involuntary restriction in Italy, as its application has restricted the movement of large segments of the population.

But was that the intention behind the EU’s actions? As it ischaracteristic of EU action, there are a variety of directives and laws from which no clear direction emerges, leaving some discretion to nation states. Given how the Directive can be interpreted while the Regulation must be applied in its entirety, we have opted for Regulation 2021/953 “for the issuance, verification and acceptance of interoperable certificates of vaccination, testing and recovery in relation to Covid-19 (EU digital Covid certificate)”.

This is one of the first comprehensive texts for the implementation of the Green Pass, dating back to the 14th of June 2021. The following article is not intended to propose a legal analysis, nor to replace experts, but simply to highlight some key passages of the regulation.

First, the European Union emphasises that Covid 19 vaccination certificates must be “interoperable, compatible, secure and verifiable” between different European states to ensure “their right to free movement.” Indeed, “a common approach among Member States is needed on the content, format, principles, technical standards and level of security of these vaccination certificates”.

Indeed, a first sketch of what the Green Pass would become was contained in the “Resolution of the 25th March 2021 on the definition of an EU sustainable tourism strategy”; the EU’s focus here is primarily on crossing national borders. There appears to be no notion that the Green Pass can be applied to the economy or to individual social and/or cultural sectors within the country.

As on previous occasions during the pandemic, the EU noted that the Green Pass “should not be understood as facilitating or encouraging the introduction of restrictions on free movement or other fundamental rights in response to the Covid 19 pandemic, as these would have a negative impact on EU citizens and businesses”. The green certificate should therefore be a tool to extend the free movement of citizens in the post-conavirus phase, and it is precisely the “review of the certificates that make up the EU digital certificate COVID that should not lead to further restrictions on free movement within the Union or to travel restrictions in the Schengen area”.

Although the Italian government’s attention in this regard has been limited to shutting down some illegal Telegram groups, several chapters of the EU regulation are dedicated to possible “fraud” and the use of “fake green passes”, for which special control and contrast measures must be taken.
The Regulation – and this is particularly significant given the large elderly population in Italy – provides that “Member States shall issue such certificates in digital or paper form, or both, at the choice of the holder”. Potential holders should have the right to receive the certificate in the format of their choice. This would allow them to request and receive a paper copy of the certificate, or to receive it in a digital format that can be stored and viewed on a mobile device, or both.” In either case, “the certificates should contain an interoperable, machine-readable bar code that allows access only to the relevant data on the certificates.”

In the middle of the regulation, we come across an important passage often used by No Green Pass, No Vax, or critics of anti-covid measures in general. It clearly states: ‘Direct or indirect discrimination against persons who have not been vaccinated, for example, for medical reasons, because they are not in the target group for which the vaccine COVID -19 is currently administered or licenced, such as children, or because they have not yet had the opportunity to be vaccinated, or because they have chosen not to be vaccinated’.

Consequently, ‘possession of a vaccination certificate or a vaccination certificate attesting to the use of a specific COVID -19 vaccine should not be a prerequisite for exercising the right of free movement or using cross-border passenger services such as airlines, trains, coaches, ferries or other means of transport’. Not only that, “This regulation cannot be interpreted as creating a right or obligation to vaccinate.”
So has the Draghi government acted in clear violation of the European regulation? In reality, this question does not arise, as can be seen from the details of the passage quoted: the EU here refers to transfers between EU countries. These are the transfers that cannot be discriminated against, regardless of the means of transport used. But this is the only area Brussels seems to be referring to, without taking into account what nations can do – or have done – within their own borders. There is no reference to using the Green Pass to access certain businesses or, in Italy’s exceptional case, workplaces.

So, Italy cannot discriminate its own citizens when it comes to allowing or forbidding them to travel between European countries, but within its own country it can do as it pleases. At least, the EU does not seem to consider the possibility that the Green Pass could be used as a coercive tool in the internal administration of the country. From an empirical point of view, the possibility that the Green Pass could be used to prevent or deny access to certain services did not exist when it was introduced between spring and summer 2021, when herd immunity seemed to be a close target and the Delta variant was not yet considered a real threat. It was only after the French introduction of the Green Pass in the restaurant and entertainment sectors that Italy, whose percentage of vaccinated people was however much higher, also changed its stance and headed towards an escalation culminating in the current situation of political and social chaos.

Probably, from a psychological point of view, the desire to keep the economy running at 100% played a decisive role, considering the price paid for the repeated closures and the mental scar of having been the first nation to feel the shock of the covid pandemic in Europe in March 2020.
The regulation, as part of the Green Pass contains one final note worth mentioning, an expiration date: in fact,”This regulation should apply for 12 months from the date of its application.” So, as with the state of emergency and other Italian and European health measures, there is an expiry date for the measures in question, but it can easily be extended.

[Zeno Saracino]

[m.g]