COVID-19 – First EU trade measures focus on health supply, basic needs

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White & Case LLPIn an effort to secure continued supply of goods within the EU during the COVID-19 crisis, the EU has taken a number of initial actions with a focus on essential health products and food. So far, these EU actions include 1) guidelines for national border management, 2) approval and stockpile measures in relation to personal protective equipment (PPE) and medical devices, and 3) related export authorization measures.

National measures lead to EU response

In response to the COVID-19 crisis, certain EU Member States have closed their borders. These national public health measures mainly aim to restrict mobility of individuals, but they also have an impact on cross-border transport of goods. In addition, the EU Member States have agreed to close the EU's external borders to non-essential travel for at least 30 days as of 17 March, with fast-track lanes for goods movement.1

In light of these developments, the EU has implemented certain initial trade measures, outlined below, in order to ensure sufficient and evenly distributed access to goods within the EU. So far, the measures focus on EU access to health and medical supplies and basic needs products, including food.

EU guidelines for border management measures

Last week, the European Commission published guidelines for national border management measures in order to ensure continued EU passage and supply of goods, especially food and medical and health supplies.2 The guidelines call for a coordinated and effective border approach within the EU, aiming to strike the right balance between protecting public health while preserving the integrity of the EU's Single Market. Recommended national border measures include:

  • In relation to transport of goods, the Member States should only impose transparent, science-based, proportionate, transport-mode specific and non-discriminatory border restrictions, with a special focus on ensuring unobstructed transport of essential goods such as food and vital medical and health supplies. Any such border measures should be notified before implementation.
  • For trade within the EU, the Member States should only impose restrictions on goods, especially basic needs products such as medicines, medical equipment, essential and perishable food products and livestock, if duly justified. No additional certification should be required for goods.
  • More generally to speed up cross-border goods movement, Member States should designate priority green lanes for freight transport at their borders and consider waiving existing weekend bans.

EU approval and stockpile measures in relation to PPE and medical devices

In the past couple of weeks, the Commission has adopted EU measures to broadly promote swifter supply of PPE3 and medical devices in the EU during the COVID-19 crisis.

First, the Commission has adopted a Recommendation on EU conformity assessment and market surveillance procedures for PPE and medical devices.4 Existing EU legislation5 requires conformity assessments and marking of such products, which means delays before newly developed products can be imported into and sold on the EU market. To enable new PPE and medical devices used for COVID-19 protection, the Commission is recommending a series of conformity assessment measures, such as quicker conformity assessments for new PPE requests and derogation from standard conformity assessment procedures for medical devices. Also, the Commission recommends relaxation of certain related market surveillance measures, as the national market should prioritize non-compliant PPE and medical devices raising serious risks and allow temporary authorization in certain cases.

Second, the Commission has created a strategic "rescEU" stockpile of emergency medical equipment, such as ventilators, protective masks and vaccines, to help all Member States manage the COVID-19 pandemic.The stockpile will be hosted by one or several Member States (with the hosting country being responsible for procurement), with distribution managed by the EU's Emergency Response Coordination Centre, and the Commission will finance 90% of the cost.

Export authorization for certain PPE

On 15 March 2020, the Commission implemented the most controversial trade measure so far in relation to the COVID-19 crisis: an EU export authorization requirement for certain specified PPE (protective spectacles and visors, face shields, mouth-nose protection equipment, protective garments, and gloves) for a duration of 6 weeks.7 Exporters must apply for the export authorization with the authority in the Member State where they are established, which will consider factors such as whether the supply is for EU- or WHO-led actions outside the EU when issuing authorizations and must generally issue them within five days.

In related guidelines issued on 20 March,8 the Commission confirmed that the measures were adopted to ensure integrity of the EU's Single Market in light of certain recent unilateral Member State measures (including by Germany, which has since removed its national measures). Also, the export authorization requirement no longer applies for exports to Norway, Liechtenstein, Switzerland, Andorra, Faroe Islands, San Marino and Vatican, as well as certain overseas territories.9

1 See EU Council update from 17 March 2020 here.
2 See "COVID-19: Guidelines for border management measures to protect health and ensure the availability of goods and essential services" (16 March 2020), available here.
3 This includes face masks, gloves, protective coveralls, eyewear protection, surgical masks, exploration gloves and gowns.
4 See Commission Recommendation 2020/403 of 13 March on conformity assessment and market surveillance procedures within the context of the COVID-19 threat, available here.
5 See Regulation 2016/425 on personal protective equipment, and Directive 93/42 and Regulation 2017/745 on medical devices.
6 See Commission Implementing Decision 2020/414, available here.
7 See Commission Implementing Regulation 2020/402, available here.
8 See Guidance note to the Member States related to Implementing Regulation 2020/402 (19 March 2020), available here.
9 See Commission Implementing Regulation 2020/426, available here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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