German Law Journal 1653 Normalizing the use of these types of technologies may represent not only a gift to authoritarian governments but also a consolidation of the power of technology companies.115 It has been argued that quasi-compulsion around any sort of immunity certification process for access to certain facilities not only raises profound issues in relation to liberty and personal privacy but may also impact most significantly on those who fall at the margins of society, for example, those who struggle to access vaccines.116 There will also be cost issues, since in many countries this will mean—in the absence of vaccination—investing in a succession of tests for which there is a charge. Such “green pass” measures are an alternative to making vaccination mandatory, but, like mandatory vaccination, inevitably also raise legal concerns around the right to private life. The surge in numbers booking vaccination appointments in France after an announcement117 by President Macron that immunity certification would be required from August, 2021 for access to many public and private facilities, including bars and restaurants, highlights the potential effectiveness of such an approach.118 This goes well beyond the restrictive measures approved previously by France’s Conseil constitutionnel in respect of participation in large gatherings.119 Unsurprisingly, the announcement also provoked a substantial backlash, which meant that the government softened the proposed scope of the scheme and the sanctions for non-compliance—which was probably a “price” already built into the scheme when it was announced120 —even though the Conseil d’Etat green-lighted the proposals in advice that was handed down prior to adoption.121 Although approved in the Assemblée nationale, the legislation to underpin the scheme was referred to the Conseil constitutionnel before it could enter into force. The Conseil constitutionnel found most of the provisions of the law, in particular those relating to the so-called passe sanitaire, to be in conformity with the constitution.122 An alternative model is provided by Israel’s “green pass,” the legislative basis for which disappeared within a few months, as it was introduced with a sunset clause and was not extended.123 Supporters of the green pass pointed out that such measures would always work best and be most likely to pass constitutional scrutiny if a legitimate purpose for their introduction could be identified and they were also subject to periodic review.124 The question of vaccination take-up became an urgent issue as soon it became apparent that highly effective vaccines were set to become a part of the international conversation about combatting COVID-19 from late 2020 onwards. Mandatory or effectively mandatory vaccinations for children against communicable diseases that can cause them or the people they come into contact with significant harm are quite common and have been recently upheld by the European Court of 115 Naomi Klein, How Big Tech Plans to Profit from the Pandemic, GUARDIAN, May 13, 2020, https://www.theguardian.com/ news/2020/may/13/naomi-klein-how-big-tech-plans-to-profit-from-coronavirus-pandemic. 116 Sarah Ganty, The Veil of the COVID-19 Vaccination Certificates: Ignorance of Poverty, Injustice Towards the Poor, 12 EUR. J. RISK REGUL. 343 (2021), https://doi.org/10.1017/err.2021.23. 117 Mandatory Vaccination, Covid-19 Pass and Access to PCR Tests: The Main Points from Macron's Address, FRANCE24 (Jul. 12, 2021), https://www.france24.com/en/europe/20210712-follow-live-france-s-macron-addresses-the-nation-as-covid-19delta-variant-surges. 118 Benedicte Sage Fuller, The Health Pass in French Legislation, THE CONSTITUTION PROJECT @ UCC (Aug. 2, 2021), http:// constitutionproject.ie/?p=812. 119 Conseil constitutionnel [CC] [Constitutional Court] decision No. 2021-819DC, May 31, 2021 (Fr.), https://www.conseilconstitutionnel.fr/decision/2021/2021819DC.htm. 120 Clea Caulcutt, France Forced to Soften Rules After Coronavirus Green Pass Backlash, POLITICO (Jul. 20, 2021) https:// www.politico.eu/article/france-rules-coronavirus-green-pass-vaccine-backlash/. 121 Avis sur un projet de loi relatif à la gestion de la crise sanitaire, CONSEIL D’ÉTAT, (Jul. 20, 2021) https://www.conseil-etat.fr/ ressources/avis-aux-pouvoirs-publics/derniers-avis-publies/avis-sur-un-projet-de-loi-relatif-a-la-gestion-de-la-crise-sanitaire. 122 See SHAW, supra note 25. 123 E. Albin & A. Gross, First In First Out: The Rise and Fall of Israel’s Green Pass, LEX-ATLAS: COVID-19 (Jun. 2, 2021), https://lexatlas-c19.org/first-in-first-out-the-rise-and-fall-of-israels-green-pass/. 124 Einat Albin & Aeyal Gross, Israel: Is the “Green Pass” an Example to Follow?, LEX-ATLAS: COVID-19 (May 7, 2021), https://lexatlas-c19.org/israel-is-the-green-pass-an-example-to-follow/; Tamar Luster, Einat Albin, Aeyal Gross, Miriam Tabenkin, & Nadav Davidovitch, Promoting Vaccination from a Human Rights and Equity Perspective: Lessons from the Israeli “Green Pass,” 12 EUR. J. RISK REGUL. 308 (2021). https://doi.org/10.1017/glj.2021.77 Published online by Cambridge University Press