How including scientific evidence in legal decision-making can help us answer questions in public health law. Case study: justifiability and proportionality of discrimination in EU Digital Covid Certificates.
More details
Hide details
Health and aging law lab (HALL)
Law, science, technology and society research group (LSTS)
Publication date: 2023-04-27
Popul. Med. 2023;5(Supplement):A1665
Background and Objective: EU digital covid certificates (DCCs) scheme, instituted in the summer of 2021 under the Regulation 2021/953 (DCCR) to facilitate reopening European borders, assumes that certificate holders pose less of a risk to public health and their freedom of movement should not be restricted. As the DCCR made sweeping assumption about the underlying mechanisms of immunity, transmission and risk, and access, questions about discrimination were raised. My doctoral project seeks to answer the following research question: In what manner should EU law consider scientific findings in its evaluation of legal questions such as discrimination, and how do scientific findings justify differential treatment? Methodology: The question will be answered in the context of a case study - establishing discrimination under the EU Digital Covid Certificates scheme, in three parts. The first and second parts of the project is concerned with the normative framework: definition of scientific evidence, its relevance to and inclusion in the EU legal order, and how it can be used to answer legal questions. In the third part, the framework is applied to evaluate the possible discrimination stemming from the DCCs. Preliminary findings and conclusions: Individualised risk assessment of the DCCs is difficult to reconcile with the public health approach and if used as an access condition can lead to discrimination insofar there is no justification for differential treatment, such as quality scientific evidence. The latter is required by EU law to demonstrate permissible restriction on freedom of movement, as well as ECHR case-law in the context of discrimination in public health. Legislators should clarify the role, quality standards and inclusion process for scientific evidence in the decision-making process in order to preclude discriminatory impacts.