As COVID-19 has taken hold in Europe, several EU member states have experienced, or are at risk of experiencing, a shortage of essential protective equipment. In order to keep this shortage to a minimum, the EU has used its safeguarding powers under the Export Regulation to introduce a requirement that certain personal protective equipment may be not exported from the EU unless the exporter has first obtained a licence from the relevant national export authority.
The Export Regulation authorises the European Commission to make the export of certain products subject to a licence requirement, where a shortage of an essential product arises due to "unusual developments in the market".
On 14 March 2020, the European Commission used this power to introduce, with immediate effect, a requirement for exporters of personal protective equipment from the EU to first obtain a licence from their national export authority "in order to ensure adequacy of supply in the Union in order to meet the vital demand". The restriction applies, for now, to the export of:
- protective spectacles and visors;
- face shields;
- mouth-nose-protection equipment;
- protective garments; and
- protective gloves.
The measure gives an indicative list of factors that may be relevant for the national authorities in EU member states in deciding when to authorise the export of such equipment.
The measure is, as currently framed, in place for a period of six weeks only. However, it is to be presumed that it may be extended, both in duration and in the range of items affected, if needed in view of the development of COVID-19 in the EU.
Even though the UK ceased to be an EU member state on 31 January 2020, it remains part of the EU single market for all practical purposes (including this measure) during the Transition Period, currently set to expire on 31 December 2020. In the event that this export restriction is still in place at the end of the Transition Period, the UK would at that stage become a third country for the purpose of this restriction as regards exports of personal protective equipment from the EU-27 but, correspondingly, the restriction would apply in the UK as retained law, with exports from the UK to the EU-27 of such items similarly needing a licence.
Since leaving the EU, the UK no longer has a role in approving the imposition of this measure or any amendment to it. Similarly, Commission decisions about such amendments need not take account of the situation in the UK with regards to COVID-19 and the availability of personal protective equipment in the UK, as it is no longer an EU member state.
What about national measures implemented by France and Germany prior to the new EU rule?
Already on 4 March 2020 (with an update on 12 March 2020), Germany adopted an export ban for the same types of personal protective equipment. The German national ban not only covers exports to third countries, but also makes shipments to other EU member states subject to a licensing requirement. Reportedly, over the weekend, Germany and France have agreed to align their national measures to the new EU rule, but no further updates have been published by Germany yet. Businesses which intend to ship personal protective equipment from France or Germany to any country, including other EU member states, should check and, if applicable, comply with respective national licensing requirements.