REGULATION (EU) 2022/1035 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 29 June 2022

amending Regulation (EU) 2021/954 on a framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test and recovery certificates (EU Digital COVID Certificate) with regard to third-country nationals legally staying or residing in the territories of Member States during the COVID-19 pandemic

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 77(2), point (c) thereof,

Having regard to the proposal from the European Commission,

Acting in accordance with the ordinary legislative procedure (1),

Whereas:

(1) Under the Schengen acquis, in particular Regulation (EU) 2016/399 of the European Parliament and of the Council (2) (the Schengen Borders Code), third-country nationals legally staying or residing in the Union and third-country nationals who have legally entered the territory of a Member State may move freely within the territories of all other Member States during a period of 90 days in any 180-day period.

(2) The EU Digital COVID Certificate was established by Regulation (EU) 2021/953 of the European Parliament and the Council (3), which set out a common framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test or recovery certificates to facilitate the exercise of the right to free movement of Union citizens and their family members during the COVID-19 pandemic. That Regulation was accompanied by Regulation (EU) 2021/954 of the European Parliament and of the Council (4), which extended the EU Digital COVID Certificate framework to third-country nationals who are legally staying or residing in the territories of Member States and who are entitled to travel to other Member States in accordance with Union law.

(3) Regulations (EU) 2021/953 and (EU) 2021/954 are due to expire on 30 June 2022. However, the COVID-19 pandemic is still ongoing and outbreaks of variants of concern may continue to have a negative impact on travel within the Union. Consequently, the period of application of those Regulations should be extended so that the EU Digital COVID Certificate can continue to be used.

(4) The period of application of Regulation (EU) 2021/953 is to be extended by 12 months. Since the objective of Regulation (EU) 2021/954 is to extend the application of Regulation (EU) 2021/953 to certain categories of third-country nationals legally staying or residing in the Union, the duration of its application should be directly linked to that of Regulation (EU) 2021/953. Regulation (EU) 2021/954 should therefore be amended accordingly.

(5) This Regulation should not be understood as facilitating or encouraging the adoption of travel restrictions in response to the COVID-19 pandemic. In addition, any requirement for verification of certificates established by Regulation (EU) 2021/953 does not as such justify the temporary reintroduction of border control at internal borders. Checks at internal borders should remain a measure of last resort, subject to specific rules set out in the Schengen Borders Code.

(6) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law.

(7) This Regulation constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC (5); Ireland is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application. In order to allow Member States to accept, under the conditions set out in Regulation (EU) 2021/953, COVID-19 certificates issued by Ireland to third-country nationals legally staying or residing in its territory for the purposes of facilitating travel within the territories of the Member States, Ireland should issue those third-country nationals with COVID-19 certificates that comply with the requirements of the EU Digital COVID Certificate trust framework. Ireland and the other Member States should accept certificates issued to third-country nationals covered by this Regulation on a reciprocal basis.

(8) As regards Cyprus, Bulgaria, Romania and Croatia, this Regulation constitutes an act building upon, or otherwise relating to, the Schengen acquis within, respectively, the meaning of Article 3(1) of the 2003 Act of Accession, Article 4(1) of the 2005 Act of Accession and Article 4(1) of the 2011 Act of Accession.

(9) As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latter’s association with the implementation, application and development of the Schengen acquis (6) which fall within the area referred to in Article 1, point C, of Council Decision 1999/437/EC (7).

(10) As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (8) which fall within the area referred to in Article 1, point C, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC (9).

(11) As regards Liechtenstein, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (10) which fall within the area referred to in Article 1 point C, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU (11).

(12) Regulation (EU) 2021/954 should therefore be amended accordingly.

(13) Since the objective of this Regulation, namely to facilitate the travel of third-country nationals legally staying or residing in the territories of the Member States during the COVID-19 pandemic by establishing a framework for the issuance, verification and acceptance of interoperable COVID-19 certificates on a person’s COVID-19 vaccination, test result or recovery, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(14) In order to allow for its prompt and timely application to ensure the continuity of EU Digital COVID Certificate, this Regulation should enter into force on the day of its publication in the Official Journal of the European Union.

(15) The European Data Protection Supervisor and the European Data Protection Board were consulted in accordance with Article 42(1) and (2) of Regulation (EU) 2018/1725 of the European Parliament and of the Council (12) and delivered a joint opinion on 14 March 2022 (13),

HAVE ADOPTED THIS REGULATION:

Article 1 Article 3 of Regulation (EU) 2021/954 is replaced by the following: ‘Article 3 This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union. It shall apply from 1 July 2021 for as long as Regulation (EU) 2021/953 is applicable.’.

Article 2 This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties. Done at Brussels, 29 June 2022. For the European Parliament The President R. METSOLA For the Council The President F. RIESTER

(1) Position of the European Parliament of 23 June 2022 (not yet published in the Official Journal) and decision of the Council of 28 June 2022.

(2) Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 77, 23.3.2016, p. 1).

(3) Regulation (EU) 2021/953 of the European Parliament and of the Council of 14 June 2021 on a framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test and recovery certificates (EU Digital COVID Certificate) to facilitate free movement during the COVID-19 pandemic (OJ L 211, 15.6.2021, p. 1).

(4) Regulation (EU) 2021/954 of the European Parliament and of the Council of 14 June 2021 on a framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test and recovery certificates (EU Digital COVID Certificate) with regard to third-country nationals legally staying or residing in the territories of Member States during the COVID-19 pandemic (OJ L 211, 15.6.2021, p. 24).

(5) Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of the provisions of the Schengen acquis (OJ L 64, 7.3.2002, p. 20).

(6) OJ L 176, 10.7.1999, p. 36.

(7) Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis (OJ L 176, 10.7.1999, p. 31).

(8) OJ L 53, 27.2.2008, p. 52.

(9) Council Decision 2008/146/EC of 28 January 2008 on the conclusion, on behalf of the European Community, of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis (OJ L 53, 27.2.2008, p. 1).

(10) OJ L 160, 18.6.2011, p. 21.

(11) Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union, of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, relating to the abolition of checks at internal borders and movement of persons (OJ L 160, 18.6.2011, p. 19).

(12) 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).

(13) Not yet published in the Official Journal.