In early March 2020, amid the crisis caused by COVID-19 and concerns about the availability of personal protective equipment, EU member states started to adopt export restrictions on certain personal protective equipment, ("PPE") such as gloves, face shields and protective garments. These measures were adopted mainly by EU member states in which the production of PPE is concentrated, such as Germany, France, Poland, Bulgaria and the Czech Republic.1
By means of example, on March 4, 2020, Germany adopted export restrictions with regard to certain medical protective equipment, such as protective goggles, respiratory masks, protective coats, protective suits and gloves, which were subsequently repealed and replaced by an order of March 12, 2020 ("the German Order").2 Subject to certain exceptions, the export restrictions in the German Order apply to the same category of products and apply to all exports, regardless of their destination (intra- or extra-EU). The German Order further provides that "[a]s soon as there is a uniform approach in this regard in the EU, there is no need for national regulation" and that the order may be reviewed once a common EU approach is adopted.
In response to the German Order, on March 15, 2020, the European Union ("EU") imposed EU-wide export restrictions on the PPE ("the export restrictions").3 The exportation outside the EU of such items, whether originating in the EU or elsewhere, is subject to an export authorization. Without such an authorization, exportation is prohibited. Authorizations are issued by the competent authorities of the member state where the exporter is established. The export restrictions are adopted pursuant to Article 5 of Regulation 2015/479, which permits the European Commission ("the Commission") to adopt temporary export control measures in order to prevent or remedy critical situations arising from shortages of essential products.4
The EU's export restrictions entered into force immediately upon publication ( March 15, 2020) and will apply for a period of six weeks, after which they will cease to apply unless the Commission, within 12 working days of their entry into force, decides to extend the export restrictions.5 This extension could also include licensing requirements or quantitative restrictions on exports.
Through the implementation of an EU-wide measure, the Commission aims to prevent further intra-EU restrictions on the free movement of medical goods. Indeed, one day after the adoption of the EU export restrictions, on March 16, 2020, the Commission published the COVID-19 Guidelines for Border Management Measures to Protect Health and Ensure the Availability of Goods and Essential Services (“the Guidelines”). The Guidelines emphasize the principle of solidarity between EU member states, meaning that member states should not undertake measures that jeopardize the integrity of the EU single market for goods—in particular, the integrity of supply chains—or engage in any unfair practices.
In terms of medical goods specifically, the Guidelines stipulate that member states should preserve the free circulation of all goods. In particular, they should guarantee the supply chain of essential products, such as medicines, medical equipment, essential and perishable food products, and livestock. No restriction should be imposed on the circulation of goods in the EU single market, especially (but not limited to) essential, health-related and perishable goods—notably foodstuffs—unless duly justified. Member states should designate priority lanes for freight transport (e.g., via “green lanes”) and consider waiving existing weekend bans.
1 Recital (5) of the Implementing Regulation. For Germany, see BAnz AT 12.03.2020 B1 and https://www.bafa.de/DE/Aussenwirtschaft/Ausfuhrkontrolle/Coronavirus_Schutzausruestung/coronavirus_schutzausruestung_node.html. For France, Bulgaria and the Czech Republic, see the notifications in the EU's TRIS Database here: https://ec.europa.eu/growth/tools-databases/tris/en/ (search term "COVID").
2 See Bundesministerium für Wirtschaft und Energie, Anordnung von Beschränkungen im Außenwirtschaftsverkehr mit bestimmten Gütern vom: 04.03.2020 (BAnz AT 04.03.2020 B1) and Bundesministerium für Wirtschaft und Energie, Anordnung von Beschränkungen im Außenwirtschaftsverkehr mit bestimmten Gütern vom: 12.03.2020 (BAnz AT 04.03.2020 B1).
3 Commission Implementing Regulation (EU) 2020/402 of 14 March 2020 making the exportation of certain products subject to the production of an export authorisation, C/2020/1751, OJ L 77I , 15.3.2020, p. 1–7. The complete list of products covered by the export restrictions is provided in Annex I to the Implementing Regulation. Annex I is based on Regulation (EU) 2016/425 of the European Parliament and of the Council of 9 March 2016 on personal protective equipment.