Proposal”, and together with the First Proposal, the “Proposals”). The Commission proposes to base the Second Proposal on Article 77(2)(c) TFEU, according to which the Union shall develop policies setting out the conditions under which nationals of third countries shall have the freedom to travel within the Union. 3.
The European Data Protection Board (the “EDPB”) and the European Data Protection Supervisor (the “EDPS”) note that the Proposals seek to extend the application of Regulation 2021/953 (EU Digital COVID Certificate) and, by extension, of Regulation 2021/954 by 12 months, as well as prolong for the same time the power of the Commission to adopt delegated acts pursuant to Regulation (EU) 2021/953 (the “Regulation”).
4.
In addition to extending the application of the EU Digital COVID Certificate, the Proposals aim to amend certain provisions of the Regulation: 1) A broadening of the definition of SARS-CoV-2 tests that rely on the detection of viral proteins (antigens) to include immunoassays performed in a laboratory setting and not only rapid antigen tests that give results in less than 30 minutes; 2) An explicit clarification that vaccination certificates are to contain the number of doses administered to the holder, regardless of the Member State in which they have been administered, to make sure that the overall number actually administered is accurately reflected; 3) The inclusion of vaccination certificates issued for a COVID-19 vaccine undergoing clinical trials among those certificates that may be accepted by Member States in order to waive restrictions to free movement; and 4) The correction of a wrong cross-reference in Article 13(2) of Regulation (EU) 2021/953.
5.
On 3 February 2022, the Commission requested a Joint Opinion of the EDPB and the EDPS on the basis of Article 42(2) of Regulation (EU) 2018/1725 (the “EUDPR”)2 on the Proposals.
2 SCOPE OF THE OPINION 6.
The Proposals are of particular importance due to their major impact on the protection of individuals’ rights and freedoms with regard to the processing of their personal data. The scope of this Joint Opinion is limited to the aspects of the Proposals relating to the protection of personal data, which represent a fundamental aspect of the Proposals.
7.
For the sake of clarity, as the Second Proposal is limited to ensuring that Member States apply the rules laid down in the First Proposal to third country nationals who reside or stay legally in their territory and are entitled to travel to other Member States in accordance with Union law, the EDPB and the EDPS will provide their recommendations with a focus on the First Proposal. This being said,
2
Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).
Adopted
4
