The Advisory Division of the Raad van State has issued an opinion on the bill on the Temporary Act on Differentiation of Coronation Tickets. The bill was submitted to the House of Representatives on November 22, 2021. With this, the opinion of the Advisory Division also became public.
The proposal amends the Public Health Act (Wpg). This will make it possible to use a so-called ministerial regulation to impose a corona-access certificate (ctb), which includes only a vaccination certificate or a recovery certificate (2G). This means that if 2G is introduced for specific situations, one must be either vaccinated or recovered for this situation. A negative test result would no longer be enough.
The aim of the proposal is to slow down the speed of the spread of the virus, combat the overload of care, protect vulnerable people in society, and safely (re)open sectors that would otherwise have to remain closed. Only if these objectives are insufficiently achieved with 3G and any additional measures (such as staying in a chair or keeping a distance of one and a half meters) should 2G be deployed, according to the cabinet.
The bill provides that, in any case, 2G cannot be used for education and in the workplace. However, 2G could be used in so-called high-risk environments in the sectors where a ctb is already required. These sectors are culture, events, hospitality, sports and organized youth activities. In addition, parliament is currently debating a bill on mandating the ctb in non-essential retail and service industries. If that bill is passed, these sectors will also be covered.
In addition to 2G, 1G could possibly be deployed. 1G involves testing everyone for access. 1G could be deployed independently or in combination with 3G and 2G.
The Advisory Division recognizes that 2G leads to much public discussion. However, it considers it justifiable for the government to consider the measure, given the extremely difficult circumstances at the moment. However, the way in which 2G is given legal shape is inadequate: the law does not make it sufficiently clear when 2G will be possible and what is expected of entrepreneurs in its implementation.
The bill does not regulate when there is a high-risk environment. This is important, because the intention is that the obligation for 2G will only be imposed if it is really necessary from a public health perspective. Furthermore, it is not clear from the text of the law and the explanatory memorandum that 2G will be mandatory for high-risk environments unless a sufficient level of protection can be achieved with 3G. Nor is it clear whether there is a choice between 2G and 3G if it is already clear in advance that there is no alternative to 2G. If there is no such choice, it should be regulated by law.
Finally, it is not clear when and how 1G may be used. It is also unclear whether 1G is feasible and to what extent the obligation to test everyone is proportionate. The Advisory Division therefore concludes that the proposal offers insufficient legal certainty for practice. This also affects compliance and enforcement.
People who have been unable to get vaccinated, for example for medical reasons, are exempted in the law. They can then still have access if 2G is mandatory. The Department recommends prompt clarification of how this will be designed and how it will be implemented in practice.
