Action brought on 22 February 2022 — ON v Commission

(Case T-103/22)

(2022/C 191/38)

Language of the case: Czech

Parties

Applicant: ON (represented by: D. Mimrová, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

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Annul Commission Delegated Regulation (EU) 2021/2288 of 21 December 2021 amending the Annex to Regulation (EU) 2021/953 of the European Parliament and of the Council as regards the acceptance period of vaccination certificates issued in the EU Digital COVID Certificate format indicating the completion of the primary vaccination series, (1) on the grounds that it infringes the principle of equal treatment, the prohibition on discrimination and the principle of proportionality;

—	Annul Regulation 2021/2288 on the ground that it lacks a legal basis under Article 168 TFEU so far as concerns the protection of public health or the European Union’s reaction to the cross-border health threat of the covid-19 pandemic;

—	Order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law.

First plea in law, alleging that the Commission infringed general principles of Community law and by adopting Regulation 2021/2288 infringed:

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the principle of equal treatment and the prohibition on discrimination in restricting the validity of the digital certificate to 270 days from the date of completion of the primary vaccination series, in the interests of facilitating freedom of movement for holders of valid digital certificates (that is, persons who have had the booster vaccination, who supposedly have greater immunity against the Omicron variant of the virus), while it excluded from the scope of the contested measure an indeterminate circle of persons defined by their age, profession, lifestyle or other criteria (irrespective of whether they are vaccinated or not at all vaccinated), thereby discriminating against a large group of persons who have completed the primary vaccination series and have caught covid, even though according to the scientific evidence those individuals with so-called ‘hybrid immunity’ are of a comparable or lower risk to society from the point of view of the transfer of infection and burden on the health system than individuals whose unrestricted digital certificate remains valid or who are otherwise excluded from the scope of the contested measure and who are ‘de jure’ free of infection.

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the principle of proportionality, in so far as it failed to put forward reasons based on qualitative, and where possible quantitative, data, that is to say failed to assess properly the available scientific data on the group of persons who could pose a risk of covid infection to another individual, and further failed to state due reasons as to why the precise measure chosen, which restricts the validity of the EU Digital COVID Certificate to a period of a maximum of 270 days from the date of receiving the last dose in the primary vaccination series, is the best means of achieving the EU’s objectives so far as concerns the reactions to the covid-19 pandemic and the mutations of the SARS-CoV-2 virus, because by such a measure it supports an increase in the vaccination uptake of the so-called ‘booster shot’ among the population, without weighing up (properly justifying) other potential alternatives.

Second plea in law, alleging that the Commission, in adopting Regulation 2021/2288, exceeded its conferred powers, transferred to it under Article 5(2) of Regulation (EU) 2021/953, (2) when, instead of the ‘static’ modification of the data field, in reaction to the development of the SARS-CoV-2 virus and existing epidemiological situation, it restricted the validity of the digital certificate and in that context de facto demarcated the limits for the reaction of the European Union to the covid-19 pandemic as for a cross-border threat to heath, without founding the contested measure on a corresponding legal basis under Article 168 of the Treaty on the Functioning of the European Union on the protection of public health.

(1) OJ 2021 L 458, p. 459.

(2) 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 2021 L 211, p. 1).