Giuseppe Liturri’s analysis
When it comes to dealing with the more or less legitimate use of the green pass, the blurred boundary between the competences of EU law and that of national law, after years of advances, recedes dramatically.
With reference to the use of the EU digital COVID certificate also for other purposes – as is happening in Italy, where it is used to compress personal freedoms – the EU makes it known that it is not its business. It is a matter that pertains to national law, provided that the EU citizen is not forced to have another national COVID certificate, and can therefore use the EU one also for internal purposes, even the most discriminatory ones. This is the summary of the Pilate response provided Tuesday by the Commissioner for Justice Didier Reynders to a specific question sent by Antonio Rinaldi, MEP of the Identity and Democracy group. A position that frankly leaves you astonished and offers the idea of ​​an EU law that can be extended on request, “a la carte” one might say, ready to overflow to the point of nullifying any decision-making autonomy of the Member States, and then ready to withdraw, leaving room for national law. This question had the merit of testing the ground, asking a relatively partial question, which was however sufficient to show a Commission reacting by withdrawing, frightened by the responsibility of having to assess any damage to the fundamental rights of EU citizens. Curious position, considering that since the beginning of the pandemic in Brussels they have not lost an opportunity to become protagonists of the health emergency, starting with the purchase of vaccines. A story that cannot fail to end before the European Court of Justice. This question had the merit of testing the ground, asking a relatively partial question, which was however sufficient to show a Commission reacting by withdrawing, frightened by the responsibility of having to assess any damage to the fundamental rights of EU citizens. Curious position, considering that since the beginning of the pandemic in Brussels they have not lost an opportunity to become protagonists of the health emergency, starting with the purchase of vaccines. A story that cannot fail to end before the European Court of Justice. This question had the merit of testing the ground, asking a relatively partial question, which was however sufficient to show a Commission reacting by withdrawing, frightened by the responsibility of having to assess any damage to the fundamental rights of EU citizens. Curious position, considering that since the beginning of the pandemic in Brussels they have not lost an opportunity to become protagonists of the health emergency, starting with the purchase of vaccines. A story that cannot fail to end before the European Court of Justice. Curious position, considering that since the beginning of the pandemic in Brussels they have not lost an opportunity to become protagonists of the health emergency, starting with the purchase of vaccines. A story that cannot fail to end before the European Court of Justice. Curious position, considering that since the beginning of the pandemic in Brussels they have not lost an opportunity to become protagonists of the health emergency, starting with the purchase of vaccines. A story that cannot fail to end before the European Court of Justice.
If this is the summary, the details of the story only add perplexity and concern.
Rinaldi points out to the Commission that it does not consider the use of the EU digital Covid certificate “distorted and potentially discriminatory”, initially “designed exclusively to facilitate free movement between member countries”, but used since August 6 to limit access to certain services and activities. Furthermore, they are perplexed about the compatibility of the Italian laws of Legislative Decree 105 with the founding values ​​of the EU enshrined in the EU Charter of Fundamental Rights, in particular the principle of non-discrimination (Article 21).
The Commission responded by oscillating between elusive and contradictory. On the one hand, it reiterates that the certificate aims to facilitate freedom of movement within the EU; on the other hand, it leaves the Member States free to use the certificate “for other purposes” which, in its opinion, remain unrelated to the application of Regulation 953 on the digital green certificate. In other words, the Commission is letting us know that they care about the issue of free movement and that it is only concerned with. Any assessment of the proportionality of the restrictions imposed by means of the certificate and the consequent discrimination of some citizens as a result of the choice not to be vaccinated is not a matter of Union law.
The Commission is only interested in that the EU Covid certificate is also accepted for national purposes, to avoid that the EU citizen also has to have a second national Covid certificate. When this requirement is met, the Covid certificate can be used as a truncheon. From the first interpretations leaked by the Commission services, it seemed that a possible national use could not go beyond the purpose of facilitating free movement but, with this response, every barrier is broken. Any discriminatory use is not a problem for the Commission. If tomorrow that certificate became the tool to impose a social credit system on China – by delivering rewards and penalties in relation to the virtuous behavior of citizens,
This answer still leaves many aspects unresolved, including that of the protection of personal data and therefore that of the subjects authorized to check, for which national law does not seem to be able to derogate from the stringent requirements set by the EU Regulation.
This unexpected retreat of the Commission, which has always been inclined to expand, also on the edge of the violation of Article 5 of the TEU, is surprising, in which it is established that the competences of the EU are delimited and regulated by the principle of attribution, according to which the EU has only the powers conferred on it by the Treaties. According to the sectors of activity (customs, safety, competition, health, safety, etc …) there are thus exclusive competing and supporting competences on a decreasing scale of legislative power of the EU. It is even more surprising when one wonders where the EU’s concerns about respect for the rule of law have gone, a subject on which the EU has been particularly sensitive when it came to protecting LGBT minorities.
A Commission that should be the guardian of the EU treaties and rules and that – when we have to let our government do the dirty work of using the green pass to “incentivize” citizens to a health treatment that they know they cannot make mandatory – turns away.
Considering that, especially in the last decade, there has been no aspect of economic policy in which we have not had to suffer the formal or informal impositions and recommendations (much better to wave the stick without putting your face on it), now in Brussels I am all Pontius Pilate.
