COVID-health passes or vaccination certificates are now required to access bars, restaurants and cultural venues in a number of European Union countries, triggering a number of protests.
The aim of the governments rolling out this measure is to boost vaccinations against COVID-19. The region has been facing a surge of new infections blamed on the more transmissible and more dangerous Delta variant.
But the measure has been met by fierce resistance.
Tens of thousands of people demonstrated across France last weekend, chanting “Liberty!” and describing the measure as “liberticidal”. Similar demonstrations have also been held in Italy — where the measure will be rolled out on August 6 — with protesters blasting the green pass as “unconstitutional”.
Are they right? Legal experts say: probably not.
Mandatory vaccination can be ‘justified’
“Certain rights can be restricted in certain circumstances, but only to the extent that it is absolutely necessary and proportionate to achieve a legitimate aim,” Dr. Orsolya Reich, senior advocacy officer at Liberties, an NGO monitoring human rights across Europe, told Euronews.
“From a human rights perspective, even statutory vaccination can be an infringement that is justified by the rights of others.
But, she stressed, “the question to be asked is always whether there are any other, less rights-infringing ways through which the same aim can be achieved. If so, the infringement would not be justified.”
France’s State Council — an independent body that advises the government but also acts as an administrative supreme court — ruled it was justified on Monday evening, striking down a challenge to the health pass requirement for cultural and leisure venues introduced last week.
“The resurgence of the epidemic linked to the spread of the Delta variant was such as to justify an extension of the use of the health pass,” the judge said.
‘Health pass could be as effective as lockdowns’
The EU COVID-19 digital certificate — attesting that the holder has either been vaccinated, has recovered from the disease, or has recently tested negative — was initially designed to reopen travel within the bloc.
It was officially launched across the 27-country union earlier this month. But some member states had already rolled out their own version. Denmark, for instance, launched its “coronapas” in April as a means to ease some lockdown measures, initially allowing its holder to enter businesses including hairdressers, beauty salons and driving schools.
Since then Austria, Cyprus, France, Germany, Italy Latvia, Lithuania, Luxembourg, the Netherlands, Portugal, Ireland and Slovenia have also enforced rules requiring a health pass to access certain venues. Although the list varies from country to country, they tend to target hospitality businesses as well as cultural and sports venues.
The aim, according to Arnault Flahault, professor of public health at the University of Geneva’s School of Medicine and founding director of the Institute of Global Health, is three-fold: avoid a harsh lockdown, encourage vaccinations and ensure the continued impact of the pandemic on the social and economic life of the country is mitigated as much as possible.
“At the beginning of this pandemic, before the Chinese experimented with it in Wuhan, no one knew whether the lockdown would be able to stop the virus. And then experience showed that it was very effective but also had a great impact on social and economic life.
“Today we are at the same stage with the health pass, its extended use has not yet been evaluated, but it could prove to be as effective as lockdown, since it amounts to confining all the non-vaccinated who will not have access to bars, restaurants, cultural, social, sporting and festive life, unless they present negative tests every 48 hours.
“And the extended use of the health pass is much less socially and economically punishing. We will soon know if it keeps its promises and avoids the saturation of French and Italian hospitals,” he added.
The Delta variant accounts for 99% of new cases in the UK. It is also dominant in a majority of European countries. Only a full vaccination course is effective at reducing the risk of severity.
“With the Delta variant, associated with a very high R0 reproduction rate, very high vaccine coverage, perhaps over 90%, is needed to hope to block any resurgence of the epidemic and provided that the immunity conferred by the vaccine is effective in preventing transmission of the virus,” Flahault highlighted.
‘Fair opportunity for vaccination’
In France, the government is taking it a step further. A bill approved on Monday morning by lawmakers not only extends its use to bars and restaurants come early August but also makes it mandatory for certain professionals to be vaccinated.
President Emmanuel Macron has also said that come the autumn, so-called comfort testing to allow for travel or to visit museums, cinemas and other businesses impacted by the measure, will no longer be free. Unvaccinated people, unless they present symptoms justifying a free test, will therefore have to shell out.
Such a measure could open the health pass requirement to a more challenging legal battle, Reich said, but it will depend on a number of factors.
“Whether everyone had ample opportunities to get vaccinated” is one of them, she stressed. “Only once everyone has had a fair opportunity to acquire a fully vaccinated status does it seem legitimate that taxpayers no longer pay for the testing of those who did not get vaccinated.”
“Was the application process easy enough? Did people from vulnerable communities get the necessary help to register for the vaccination and attend their appointments? Were there intense information campaigns that target groups vulnerable to disinformation? If the answer to any of these questions is no, the justification for the fee-based testing will not stand,” she explained.
In Spain, for instance, the surge in new infections observed in recent weeks was particularly prevalent among young adults who have barely started to get vaccinated because of the government’s planned roll-out based on age groups.
But in France, vaccinations fully opened to people aged 18 or over on May 31. Since then there have been no restrictions to get vaccinated so any new legal challenge to the health pass on these grounds could also be struck down.
“Introducing fee-based testing after all people have had a fair opportunity to acquire full immunity is not in itself unacceptable,” Reich said. “People need to bear the burdens of the decisions they freely made, at least in part.”
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