Does Malta’s new legal notice on vaccine certificates breach freedom of movement rights?

Confusion reigned among legal experts over the past week after the government announced that people will be obliged to present a vaccine certificate in order to travel to and from Malta on 9 July.

Concerns were immediately raised following the announcement, in particular in relation to the EU’s legally enshrined right for its citizens to travel freely from one member state to another.

Confusion and concerns arise on potential conflict resulting from Malta’s decision and EU treaty laws, with the EU Commission referring to its concerns on Malta’s decision in a press conference held on 12 July.

According to the legal experts contacted by The Shift, all agreed that it was clear that the conflict could only be truly tested in a European court of law to determine the legal validity of the justification Malta put forward.

One senior source explained that Malta would have to outline the public health reasons that call for the restriction on freedom of movement to be made, a standard process in any situation in which a member state deviates from the principles of the treaty that every state agrees to when joining the union.

They further outlined that such reasons justifying the decision to only allow vaccine-certificate carrying travellers could include wanting to protect Malta’s herd immunity by not diluting the number of vaccinated individuals within the country at any time.

Another source heavily criticised the announcement by Health Minister Chris Fearne last week, arguing that a blanket ban on non-vaccinated travellers would go beyond what is strictly necessary for limiting freedom of movement.

Two of the other sources were less certain of the implications of the decision given that Malta’s justification for the decision would require further analysis before forming an objective assessment.

One of them cited a Parliamentary Assembly of the Council of Europe document, 2361/2021, which specifically outlines that “citizens must be informed that the vaccination is not mandatory and that no one is under political, social or other pressure to be vaccinated if they do not wish to do so”.

This, the source said, means that a vaccination certificate barring entry into a country could possibly be construed as a form of political and social pressure to get vaccinated.

However, the same source also pointed out that the EU’s convention on human rights makes it clear that member states have a prerogative on how to deal with citizens hailing from another country, even if from a fellow EU member state.

The EU’s laws would only be broken upon violation of another article or provision in the convention, like separating a mother from visiting her children in another country, for example. This would breach Article 8, or the right to enjoy access to one’s family.

After the 9 July announcement and subsequent fallout and confusion, the government published the official legal notice outlining the terms on which travel bans were put in place.

The legal notice has been fleshed out more thoroughly since the original announcement, with clear provisions exempting planes or vessels on necessary commercial, humanitarian or repatriation endeavours. As for the vaccine certificate restriction, travel is essentially open to all carrying such a certificate bearing proof of vaccination with a vaccine that the EU’s medicines agency has approved.

Anyone who does not have a vaccine certificate will have to quarantine for 14 days and will be allowed to enter only upon presenting a negative PCR test that is not older than 72 hours, according to the legal notice that also states that Maltese citizens returning from overseas without an accepted vaccine certificate will also be subject to a negative PCR test upon re-entry.

One of the more critical legal experts consulted by The Shift had suggested that the government’s initial proposal for the restriction of such freedom of movement would definitely be in breach of treaty laws if it goes beyond what is strictly necessary, especially in light of the fact that it was poorly planned and implemented while also treating countries in the same manner even when cases per capita in a country could be lower than what is being experienced in Malta.

It would also have to be proportional to the actual situation on the ground and maintain a balance between restrictions on freedom of movement imposed on both domestic and international travel. The source explained that given Malta’s lack of enforcement on the ground and the contrast with the onerous burden placed on travellers would be difficult to stand up in court.

They also said that less strict alternatives would have to be considered before going for the vaccine certificate, including measures that monitor risks on a targeted basis rather than automatically banning individuals from entering.

Ultimately, however, another source insisted that if the EU Commission agrees with Malta’s reasoning as submitted to it in order to justify the restriction on public health grounds, then it is entirely within Malta’s right to do so.

While discriminating on the basis of nationality is always a no-no with the EU, the source explained, as long as it is considered the most reasonable, less restrictive measure in light of the context of the country.

“If scientists can find a less onerous method to protect public health, then that is what should be done. If the EU commission does not agree with Malta’s rationale, then it can choose to launch enforcement action against the country. But that is subjective and needs to be determined,” they added.