Explanatory Memorandum to COM(2021)294 - Amendment of Council Recommendation (EU) 2020/1475 of 13 October 2020 on a coordinated approach to the restriction of free movement in response to the COVID-19 pandemic - Main contents
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| dossier | COM(2021)294 - Amendment of Council Recommendation (EU) 2020/1475 of 13 October 2020 on a coordinated approach to the restriction of free ... |
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| source | COM(2021)294  |
| date | 31-05-2021 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
To ensure a well-coordinated, predictable and transparent approach to the adoption of restrictions on freedom of movement, the Council adopted, on 13 October 2020, Council Recommendation (EU) 2020/1475 on a coordinated approach to the restriction of free movement in response to the COVID-19 pandemic 1 . The Council Recommendation established 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, published by the European Centre for Disease Prevention and Control (ECDC) 2 , 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.
Recommendation (EU) 2020/1475 seeks to ensure increased coordination among Member States considering the adoption of measures restricting free movement on grounds of public health in the context of the pandemic. When adopting and applying restrictions to free movement, Member States should respect EU law, in particular the principles of proportionality and non-discrimination. Recommendation (EU) 2020/1475 was later amended in view of a very high level of community transmission across the EU, possibly linked to the increased transmissibility of new SARS-CoV-2 variants of concern 3 .
After another peak of infections in early April, infection numbers have recently been decreasing across the EU. By the end of week 19 (16 May 2021), the 14-day cumulative case notification rate for the EU/EEA had fallen to 224 per 100 000 population, and had been decreasing for six weeks 4 . This decrease is despite a continuous increase in the testing rate. Similar decreases can be observed for hospital and intensive care unit occupancy by and new admissions of COVID-19 patients.
This improvement of the epidemiological situation is predominantly linked to an accelerating EU vaccination campaign. By 27 May 2021, the cumulative uptake of at least one vaccine dose among adults aged 18 years and above in the EU/EEA had reached 42.8%, and the cumulative uptake of full vaccination among adults aged 18 years and above had reached 18.9%. Importantly, the cumulative uptake of full vaccination had reached high levels among target groups, such as persons aged 80 years and above (63.5%) and healthcare workers (64.2%) 5 . By the end of May 2021, over 300 million doses of vaccines will have been delivered to Member States. Enough doses will be delivered to vaccinate 70% of the adult population in the EU by the end of July 2021.
In view of these welcome developments, Member States have started to gradually lift restrictions imposed to limit the spread of SARS-CoV-2, as regards both travel and other activities. To do so in a safe way, many Member States are making use of COVID-19 certificates, covering vaccination, test results and/or recovery.
On 20 May 2021, the European Parliament and the Council reached political agreement on the EU Digital COVID Certificate, a framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test and recovery certificates for the purpose of facilitating the holders’ exercise of their right to free movement during the COVID-19 pandemic 6 . The political agreement on the two Regulations proposed by the Commission 7 was later confirmed by Council’s Permanent Representatives Committee 8 and the Parliament’s Committee on Civil Liberties, Justice and Home Affairs 9 . The EU Digital COVID Certificate, which will allow all persons living in the EU to obtain an interoperable COVID-19 certificate, aims to contribute to facilitating the gradual and coordinated lifting of restrictions to free movement put in place, in accordance with EU law, to limit the spread of SARS-CoV-2.
It is important that efforts are made to ensure a smooth rollout of the EU Digital COVID Certificate. For this purpose, the Commission recommends Member States to make use, to the maximum extent possible, of existing possibilities under national law to start issuing EU Digital COVID Certificate already before the entry into application of the Regulation based on the technical specifications developed by the Member States in the eHealth Network 10 . Where national law provides for the verification of COVID-19 certificates, holders of an EU Digital COVID Certificate could make use of them when travelling already before the entry into application of the Regulation. The Commission supports this process by launching the central part of the EU Digital COVID Certificate, the EU gateway storing the public keys needed for the verification of an EU Digital COVID Certificate. Given that no personal data is exchanged via the EU gateway, Member States could already make use of its functionality.
In view of the improving epidemiological situation, as well as the upcoming rollout of the EU Digital COVID Certificate, Recommendation (EU) 2020/1475 should be amended to coordinate this gradual lifting of free movement restrictions. On the one hand, holders of vaccination and recovery certificates travelling within the EU should in principle not be subject to additional restrictions, such as travel-related testing for SARS-CoV-2 infection or travel-related self-isolation or quarantine. On the other hand, the provisions on persons in the possession of a negative test result should be streamlined to limit complexity and confusion for travellers, thus boosting compliance with the measures imposed. For this purpose, the different measures that could be applied to travellers could be linked more closely with the colour code of the place of departure. In particular, a standard validity period for tests for SARS-CoV-2 infection could simplify travel within the EU.
In addition, Recommendation 2020/1475 should be adapted to take into account the adoption of Council Recommendation (EU) 2021/816 amending Recommendation (EU) 2020/912 on the temporary restriction on non-essential travel into the EU and the possible lifting of such restriction 11 , including the increase of the threshold for the 14-day cumulative COVID-19 case notification rate from 25 to 75.
At the same time, it is necessary to remain vigilant regarding SARS-CoV-2 variants. ECDC regularly assesses new evidence on variants detected through epidemic intelligence, rules-based genomic variant screening, or other scientific sources 12 . This covers, in particular, ‘variants of concern’, for which clear evidence is available indicating a significant impact on transmissibility, severity and/or immunity that is likely to have an impact on the epidemiological situation in the EU/EEA. It also covers ‘variants of interest’, for which evidence is available on genomic properties, epidemiological evidence or in-vitro evidence that could imply a significant impact on transmissibility, severity and/or immunity, realistically having an impact on the epidemiological situation in the EU/EEA.
ECDC makes available a ‘SARS-CoV-2 variants dashboard’ 13 to provide an overview of the proportion of variants of concern and variants of interest in the EU/EEA, together with sequencing volumes. This information should be taken into account by Member States when considering the introduction of restrictions to free movement. To obtain timely and accurate information on the emergence and circulation of SARS-CoV-2 variants of concern or interest, it is important that Member State meet ECDC’s recommendations regarding sequencing volumes, which should meet a level of 10% or 500 sequences of SARS-CoV-2-positive cases sequenced, in line with the Communication from the Commission to the European Parliament, the European Council and the Council on a united front to beat COVID-19 14 .
As provided in the rules on the EU Digital COVID Certificate, Member States should be able to re-introduce restrictions on certificate holders, including holders of vaccination or recovery certificates, because, for example, the epidemiological situation in a Member State or in a region within a Member State deteriorates rapidly. This ‘emergency brake’ is intended, in particular, to prevent the spread of SARS-CoV-2 variants of concern or interest.
• Consistency with existing policy provisions in the policy area
This recommendation serves to facilitate the implementation of existing provisions related to restrictions of the freedom of movement on grounds of public health. In particular, it intends to facilitate the implementation of the EU Digital COVID Certificate.
• Consistency with other Union policies
This recommendation is in line with other Union policies, including those regarding public health and the absence of 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 further 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 EU 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 since the first temporary restrictions were implemented, 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.