The European Data Protection Board (EDPB) and the European Data Protection Supervisor (EDPS) adopted a joint opinion on the Proposals for a Digital Green Certificate. The Digital Green Certificate aims to facilitate the exercise of the right to free movement within the EU during the COVID-19 pandemic by establishing a common framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, testing and recovery certificates.
With this Joint Opinion, the EDPB and the EDPS invite the co-legislators to ensure that the Digital Green Certificate is fully in line with EU personal data protection legislation. The data protection commissioners from all EU and European Economic Area countries highlight the need to mitigate the risks to fundamental rights of EU citizens and residents that may result from issuing the Digital Green Certificate, including its possible unintended secondary uses. The EDPB and the EDPS underline that the use of the Digital Green Certificate may not, in any way, result in direct or indirect discrimination of individuals, and must be fully in line with the fundamental principles of necessity, proportionality and effectiveness. Given the nature of the measures put forward by the Proposal, the EDPB and the EDPS consider that the introduction of the Digital Green Certificate should be accompanied by a comprehensive legal framework.
Andrea Jelinek, Chair of the EDPB, said: “A Digital Green Certificate that is accepted in all Member States can be a major step forward in re-starting travel across the EU. Any measure adopted at national or EU level that involves processing of personal data must respect the general principles of effectiveness, necessity and proportionality. Therefore, the EDPB and the EDPS recommend that any further use of the Digital Green Certificate by the Member States must have an appropriate legal basis in the Member States and all the necessary safeguards must be in place.”
Wojciech Wiewiórowski, EDPS, said: It must be made clear that the Proposal does not allow for – and must not lead to – the creation of any sort of central database of personal data at EU level. In addition, it must be ensured that personal data is not processed any longer than what is strictly necessary and that access to and use of this data is not permitted once the pandemic has ended. I have always stressed that measures taken in the fight against COVID-19 are temporary and it is our duty to ensure that they are not here to stay after the crisis.”
In the current emergency situation caused by the COVID-19 pandemic, the EDPB and the EDPS insist that the principles of effectiveness, necessity, proportionality and non-discrimination are upheld. The EDPB and the EDPS reiterate that, at the moment of writing, there seems to be little scientific evidence as to whether having received the COVID-19 vaccine (or having recovered from COVID-19) grants immunity, and, by extension, how long such immunity may last. But scientific evidence is growing daily.
Moreover, a number of factors are still unknown regarding the efficacy of the vaccination in reducing transmission. The Proposal should lay down clear and precise rules governing the scope and application of the Digital Green Certificate and impose appropriate safeguards. This will allow individuals, whose personal data is affected, to have sufficient guarantees that they will be protected, in an effective way, against the risk of potential discrimination.
The Proposal must expressly include that access to and subsequent use of individuals’ data by EU Member States once the pandemic has ended is not permitted. At the same time, the EDPB and the EDPS highlight that the application of the proposed Regulation must be strictly limited to the current COVID-19 crisis.
The Joint Opinion includes specific recommendations for further clarifications on the categories of data concerned by the Proposal, data storage, transparency obligations and identification of controllers and processors for the processing of personal data.