Critics say COVID-19 vaccine passes violate their rights. European courts may not agree.

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COVID health passes or vaccination certificates are now required to access bars, restaurants and cultural venues in a number of European Union countries, sparking a number of protests.

The goal of governments deploying this measure is to strengthen vaccinations against COVID-19. The region has faced a wave of new infections blamed on the more transmissible and dangerous Delta variant.

But the measure met fierce resistance.

Tens of thousands of people demonstrated across France last weekend chanting “Freedom! and qualifying the measure as “liberticide”. Similar protests have also taken place in Italy – where the measure will be rolled out on August 6 – with protesters calling the green laissez-passer “unconstitutional”.

Are they right? Legal experts say: probably not.

Compulsory vaccination can be “justified”

“Some rights may 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, advocacy manager at Liberties, an NGO that monitors rights, told Euronews. of man in Europe. .

“From a human rights perspective, even legal vaccination can be a justified human rights offense.

But, she stressed, “the question to be asked is always whether there are other less infringing means by which the same objective can be achieved. If so, the violation would not be. not justified “.

The French Council of State – an independent body that advises the government but also acts as a supreme administrative court – ruled that this was justified on Monday evening, overturning a challenge to the health passport requirement for cultural and leisure places 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,” said the judge.

“The health pass could be as effective as confinements”

The EU’s COVID-19 digital certificate – attesting that the holder has been vaccinated, recovered from the disease or recently tested negative – was originally designed to reopen travel inside the block.

It was officially launched in the 27-country union earlier this month. But some Member States had already deployed their own version. Denmark, for example, launched its “coronapas” in April to ease some lockdown measures, initially allowing its holder to enter businesses such as hairdressers, beauty salons and driving schools.

Since then, Austria, Cyprus, France, Germany, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Portugal, Ireland and Slovenia have also applied rules requiring a health passport to access certain sites. Although the list varies from country to country, they tend to target hotel businesses as well as cultural and sporting venues.

The objective, according to Arnault Flahault, professor of public health at the Faculty of Medicine of the University of Geneva and founding director of the Institute of World Health, is threefold: to avoid severe confinement, to encourage vaccinations and to ensure the continuity of the impact of the pandemic. on the social and economic life of the country is attenuated as much as possible.

“At the start of this pandemic, before the Chinese experienced it in Wuhan, no one knew if containment would be able to stop the virus. And then experience has shown that it was very effective but that it also had a great social and economic impact. life.

“Today we are at the same stage with the sanitary pass, its extended use has not yet been evaluated, but it could prove to be as effective as confinement, since it amounts to confining all the unvaccinated who are not ‘will not have access to bars, restaurants, cultural, social, sporting and party life, unless they present negative tests every 48 hours.

“And the prolonged use of the health pass is much less penalizing socially and economically. 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 cycle of vaccination is effective in reducing the risk of severity.

“With the Delta variant, associated with a very high R0 reproduction rate, a very high vaccination coverage, perhaps greater than 90%, is necessary 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, ”said Flahault.

“A fair opportunity for vaccination”

In France, the government goes further. A bill approved Monday morning by the legislator not only extends its use to bars and restaurants from the beginning of August but also makes compulsory the vaccination of certain professionals.

President Emmanuel Macron also declared that in the fall, the so-called comfort tests to allow traveling or visiting museums, cinemas and other businesses impacted by the measure, will no longer be free. Unvaccinated people, unless they have symptoms that justify a free test, will therefore have to pay.

Such a move could open the health pass requirement to a more difficult legal battle, Reich said, but that will depend on a number of factors.

“That everyone has had ample opportunity to be vaccinated” is part of it, she said. “It is only after everyone has had a fair chance to achieve fully immunized status that it seems legitimate for taxpayers to stop paying for testing of those who have not been vaccinated.”

“Was the application process easy enough? Have people from vulnerable communities received the help they need to register for vaccination and attend their appointments? Have there been intense information campaigns targeting groups vulnerable to disinformation? If the answer to any of these questions is no, the justification for the paid tests will not hold, ”she explained.

In Spain, for example, the surge in new infections seen in recent weeks was particularly prevalent among young adults who have barely started to be vaccinated due to the planned rollout by the government according to age groups.

But in France, vaccinations were fully opened to people aged 18 or over on May 31. Since then, there are no more restrictions on getting the vaccine, so any further legal challenges to the health pass on these grounds could also be overturned.

“Introducing paid tests after all people have had a fair chance to gain full immunity is not in itself unacceptable,” Reich said. “People have to bear the burden of the decisions they have freely taken, at least in part.”

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