A critical look at science-based policy-making during the covid-19 pandemic: the case of EU covid passes and lessons learned for the future
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Health and Aging Law Lab (HALL), Belgium
Law, Science, Technology and Society Research Group (LSTS), Vrije Universiteit Brussels, Belgium
Publication date: 2023-04-27
Popul. Med. 2023;5(Supplement):A1654
Background and Objective: This paper will critically appraise the Regulation 953/2021 [1] (DCCR) and its digital COVID-19 certificates (DCC) in the light of EU law’s strict requirements for scientificity and objectivity, aiming to provide a normative framework and recommendations on drafting evidence-based policies for the current and future pandemic(s). Methods: To answer the following question: “What role has scientific evidence played in the DCCR, and in the light of EU law requirements, was the inclusion of scientific evidence effective considering the policy Objectives?”, the author will analyse how relevant provisions of the DCCR interact with scientific evidence. Building on the relevant EU case-law on evidentiary requirements, and on the work of sociological jurisprudence, law turning outwards and studies of evidence-based policy, a normative framework will serve to analyse the effectiveness of the DCCR approach. Preliminary findings: Like other EU pandemic laws, DCCR is vague about the inclusion procedures and the quality of science required to adopt additional restrictions. Nor is it clear what kind of scientific expertise should feed into the system – natural sciences, social sciences, public health ethics etc. The references to consultations and adapting the information on the pass to reflect the relevant scientific evidence are scant, and omicron has rendered several underlying assumptions about immunity and transmission outdated. Finally, while the DCCR was drafted to ensure a safe reopening, its implementation by member states has instead led to more social contacts and more infections. Conclusions: Further research on this topic will lead to reorientation of the evidence-based standards in EU law during pandemics and periods of scientific uncertainty, as well as the eventual consequences of the both member state and EU action, such as nullification suits. This is likely to be difficult due to DCCR’s claim to be a technical regulation, focusing on interoperability rather than substance. Links:[1] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021R0953
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