Malta’s latest COVID measures have still not been made into law. Although the measures announced over the weekend are meant to come into effect tomorrow, the Legal Notice that should make them law has not been published yet. The latest measures have proven to be controversial due to the stringent conditions imposed in what seems to be a panic reaction following a surge in COVID cases. Without entering into the controversy of what is the reason behind this surge it is interesting to see where Malta’s proposed measures stand in the light of Malta’s EU obligations.
We are all familiar by now with the main thrust of the new measures: that only fully vaccinated persons can travel to Malta. As the weekend unfolded we also heard of possible exceptions being introduced, notably for Maltese caught abroad by the new measures who will be allowed to use a PCR test on their return without being quarantined.
In an interesting development yesterday, the EU Commission voiced its doubts on whether the Maltese measures were compatible with EU legislation – particularly since they risk being discriminatory. In fact the rules have to be viewed in the light of the EU Digital Covid Certificate Regulation of the 14th June 2021 that creates a framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test and recvovery certificates in order ot facilitate free movement during the COVID-19 pandemic.
It is clear that the main intention behind this regulation is to continue to guarantee the fundamental right to move and reside freely within the territory of the Member States. The creation of what is described as an “interoperable” certificate is intended to uniformise the certification aspect that can be used whenever Member States are limiting the right to movement on grounds of public health. The emphasis is on having a universally accepted certification that any MS can use as a criteria for limiting free movement under specific conditions.
In fact, the 6th preamble of the Regulation stipulates:
“(…)Any restrictions to the free movement of persons within the Union that are put in place to limit the spread of SARS-CoV-2 should be based on specific and limited public interest grounds, namely the safeguarding of public health as emphasised by Recommendation (EU) 2020/1475. It is necessary for such limitations to be applied in accordance with the general principles of Union law, in particular proportionality and non-discrimination. Any measures taken should therefore be strictly limited in scope and time, in line with the efforts to restore free movement within the Union, and should not extend beyond what is strictly necessary to safeguard public health.”
Additionally, the 36th consideration in the preamble specifies (my emphasis):
It is necessary to prevent direct or indirect discrimination against persons who are not vaccinated, for example because of medical reasons, because they are not part of the target group for which the COVID -19 vaccine is currently administered or allowed, such as children, or because they have not yet had the opportunity or chose not to be vaccinated. Therefore, possession of a vaccination certificate, or the possession of a vaccination certificate indicating a COVID-19 vaccine, should not be a pre-condition for the exercise of the right to free movement or for the use of cross-border passenger transport services such as airlines, trains, coaches or ferries or any other means of transport. In addition, this Regulation cannot be interpreted as establishing a right or obligation to be vaccinated.
So while the Regulation is intended to provide a universally accepted certificate of verification that might be used by Member States as a requirement for entry, it is also clear that this requirement can never be used to deprive citizens of their right of movement.
Article 3 (6) of the Regulation is very clear in this regard:
6. Possession of the certificates referred to in paragraph 1 shall not be a precondition for exercising the right to free movement.
Article 11 on the other hand considers the possibility of restrictions to free movement in extraordinary circumstances such as a rapid worsening of the epidemiological situation. While this article does not exactly contemplate the possibility of restricting movement only to COVID-19 Vaccination Certificate holders (as the Maltese measures would), it does allow Member States to require certificate holders (which includes Vaccinated, Recovered and PCR test certificate holders and not only Vaccinated Certificate holders) to undergo quarantine, self-isolation or further testing.
In such cases the Member State is bound to inform the Commission the reasons for such restrictions, the scope of such restrictions and the date and duration of such restrictions.
In the light of the above, and considering that we are not yet fully informed of the exact details of what the Maltese measures will entail other than what has been described generally, it would seem that the new measures could be in violation of Malta’s obligations under the Regulation.
Having said that, I stress that this opinion is merely an interpretation of mine. In order to have a clear answer black on white what would need to happen is a challenge of the Legal Notice introducing the measures before the courts and, in case the national courts have a doubt as to the interpretation of the regulation, a reference to the Court of Justice in Luxembourg that would give the ultimate binding interpretation.
The fact that the measures concern public health might be a mitigating factor on the one hand. On the other hand, the Regulation does seem to contemplate the possibility of exceptional measures and outlines the conditions for their application. In that case it might not be enough for Malta to invoke Public Health issues where the exceptions that the national measures are introducing go beyond what is contemplated in the Regulation and are both disproportionate and discriminatory.
I trust that once the Legal Notice is published we will be able to make a clearer analysis of the situation.
