European Commission President Ursula von der Leyen tweeted on 3 May ‘21: “Time to revive EU tourism industry & for cross-border friendships to rekindle – safely. We propose to welcome again vaccinated visitors & those from countries with a good health situation.”
Indeed, on 3 May, the Commission proposed to ease current restrictions on non-essential travel to the EU (the Proposal). Previously, the Council had imposed a temporary restriction on non-essential travel into the EU from many non-EU countries (the Recommendation). The Proposal amends the Recommendation to ease its restrictions. The Proposal covers all Member States (except Ireland), as well as the four non-EU states that have joined the Schengen area: Iceland, Switzerland, Norway and Liechtenstein.
The Commission proposes that people coming from third countries can enter the EU, if they fulfil one of the following two conditions:
1. Vaccination
The Commission proposes to lift travel restrictions for people who have received the last recommended dose of an EU-authorized vaccine at least 14 days before arrival to the EU. According to the Proposal, Member States could also allow entry to those vaccinated with a vaccine that has completed the WHO emergency use listing process. Vaccines that have completed the process as of today are the Pfizer/BioNTech, AstraZeneca-SK Bio, Moderna, Serum Institute of India, Janssen, and Sinopharm vaccines. We expect travelers vaccinated with these vaccines to be able to enter the EU once the Proposal is implemented. But note that EU Member States may still require travelers to quarantine or put other health restrictions in place, even if they are vaccinated.
Proof of fulfilment of this condition should be facilitated once the Digital Green Certificate (the Certificate) becomes operational in June ‘21. Introduction of the Certificate was proposed by the Commission in March ’21. It should provide a uniform, standard and reliable certificate valid across the EU to prove vaccination, testing or recovery. The proposal for this certificate still requires negotiation between the European Parliament and the Council. The debate is expected to focus on whether the certificate will become a "de facto" precondition for travelling in the EU.
The Proposal foresees that until the Certificate becomes operational, travelers should be enabled to prove their vaccination status with certificates from non-EU countries based on their respective national laws.
2. Infection rates below the threshold
The Proposal suggests allowing travelers from more countries to enter the EU, regardless of their vaccination status, in case of infection rates of 14-day newly reported Covid-19 cases per 100,000 persons below 100. Perhaps the most interesting measure of the Proposal.
The EU currently only allows travelers from eight countries that have a good epidemiological situation (i.e. relatively few infections). As of today, these countries are Australia, New Zealand, Rwanda, Singapore, South Korea, Thailand, Israel, and China. These are the only countries that have a 14-day cumulative Covid-19 cases per 100,000 persons of 25 or below.
In the Proposal, the Commission proposes to increase the threshold of 14-day newly reported Covid-19 cases per 100,000 persons from 25 to 100. Interestingly, this remains significantly lower than the current EU average of 420. The Commission proposes to review the list of countries every two weeks. Considering the heterogenous rate of vaccination on a global level, this is probably the most significant step in reopening Europe for tourists and other visitors.
It should be borne in mind that even if infection rates are below the threshold, unvaccinated travelers from these countries should be subject to testing and/or quarantine.
"Emergency brake" to counter the spread of variants
The Proposal allows EU Member States to briefly suspend all inbound travel by non-EU residents when the epidemiological circumstance of a non-EU country deteriorates rapidly, and especially if a concerning variant is identified in that country. The Proposal notes that Member States should review this decision every two weeks.
Implications
The Recommendation to be amended by the Proposal is not a legally binding instrument. The authorities of the EU Member States remain free to implement the content of the Recommendation as they see fit. This can be problematic as some EU-countries may opt to deny entry to citizens from certain countries, even if they are vaccinated. EU Member States may also choose different thresholds regarding the 14-day notification rate of new Covid-19 cases. This would mean that some travelers would be able to enter certain EU-countries but not others. It will be interesting to see to what extent EU Member States will apply uniform rules. Accordingly, it therefore remains advisable to always check the national legislation of the port of entry in the EU for companies facilitating (or offering services relating to) travel into EU member states.
The Proposal states that before the Certificate becomes operational, non-EU visitors may attest their vaccination status with certificates from non-EU countries. It remains to be seen what kind of certificate will be acceptable, especially if this varies among EU Member States. In the meantime, several national courts within the EU, including the Lisbon Court of Appeal and the Administrative Court of Vienna, have recently held that PCR-testing is unreliable and cannot be trusted for determining infection. Infection should only be determined by a physician’s diagnosis. Therefore, it is questionable whether a Certificate attesting only the result of a PCR-test will be sufficient to allow international travel.
Next steps
The Council is currently considering the Proposal. According the Commission, a first discussion at the meeting of the Committee of Permanent Representatives in the European Union (COREPER) took place on 5 May. Considering the urgency of this topic, we expect the Council to adopt the Proposal swiftly. If Member States choose to ease restrictions, the question remains whether they can expect reciprocity from those countries to whom they are soon opening the door. In the meantime, before booking a vacation, travelers would be well advised to confirm the status of travel in the EU destination as the situation remains fluid and on a country by country basis.
