The law and the hammer
Posted On 29/10/2021
Following the deliberations of the Parliamentary Assembly of the Council of Europe on vaccination (Covid-19 vaccines: ethical, legal and practical considerations. Resolution 2361 of 27 January 2021, https://pace.coe.int/en/files/29004/html), including a mention to
“ensure that citizens are 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”
the European Commission has just taken a position with regard to Regulation (EU) 2021/953.
This Regulation addresses “a framework for the issuance, verification and acceptance of interoperable certificates on vaccination, testing and recovery”.
The European Commission then takes the following legal position on vaccination requirements and obligations:
“To ensure that non-vaccinated persons can also benefit from free movement, the regulation establishes an EU-wide framework for the issuance, verification and acceptance of not only vaccination certificates, but also of test and recovery certificates. It states clearly that vaccination is not a pre-condition for exercising free movement rights.”(20 October 2021 – https://www.europarl.europa.eu/doceo/document/E-9-2021-003780-ASW_EN.html
In practical terms, this means that Regulation 2021/953 should not be interpreted as a direct or indirect vaccine requirement or obligation by EU Member States.
It follows that the Luxembourg law of 18 October 2021 on measures to combat the Covid-19 pandemic cannot be interpreted as meaning that an employer may require its employees to be vaccinated, unless it is in breach of Regulation 2021/953 and in violation of the principle of the right to free movement established by the Treaty on European Union.
While it is unlikely that the Luxembourg Government and the Council of State would be ignorant of the resolutions of the European Parliament or unaware of an imminent position of the European Commission on the issue, we can only speculate as to the reasons for the tightening pressure to vaccinate in Luxembourg.
Given that many unvaccinated people are not likely to fall under the “hammer” (Paulette Lenert, Kloertext of 21 October 2021) of the current coercive health policy, knowing that it is contrary to European legislation, one might wonder what legal sleight of hand the government and the majority parties are using to impose their convictions in the field of health?
These are complicated issues, to be sure, but they deserve to be discussed and debated in full transparency.
A more detailed and comprehensive discussion of the issue of health certificates can be found in Resolution 2383 (2021) (Covid passes certificates: protection of fundamental rights and legal implications; https://pace.coe.int/en/files/29348/html) of the Council of Europe Parliamentary Assembly.