This current article by Christa Tobler examines the EU restrictions on the export of protective equipment that the EU has imposed against the background of the Corona pandemic. In particular, it examines whether different treatment of different third countries is legally permissible.
Author: Prof Dr Christa Tobler, LL.M., University of Leiden/University of Basel
In mid-March 2020, the European Commission adopted, as a matter of urgency and against the background of the Corona pandemic (more technically: the outbreak of the epidemiological crisis caused by the coronavirus SARS-CoV-2 and the disease associated with it, COVID-19), new and temporal common rules for the export of personal protective equipment (PPE) out of the EU. The reason for the new regime is an increased need for PPE and the concern for shortages that could develop in several EU Member States, in a situation where certain third countries that are traditional suppliers to the Union market had already officially decided to restrict exports of protective equipment and where others seemed to have taken similar actions on a more informal basis.
Under the new system, the export of PPE, such as medical face masks, is subject to an authorisation requirement. In a first step, the new requirement applied to all third countries alike. However, in a second step the Commission exempted a number of countries and territories, among them also the four EFTA States. How did this come about and is such different treatment of different third States legally acceptable? And what about export restrictions inside the Union’s internal market, between Member States?
In order to address these issues, the present contribution begins with a brief recollection of the EU’s general legal framework with respect to export restrictions. It then turns to the adoption of the new emergency law and its legal and political context, in which Switzerland appears to have played a certain role. This is followed by a discussion of the question just raised: is different treatment of different third States legally acceptable? Finally, the contribution turns to the situation inside the EU and the Commission’s attempts to address problems arising from unilateral Member State action in this respect. The contribution ends with a brief conclusion.