The European Commission makes export of personal protective equipment once again subject to the production of an export authorisation.
On 15 March 2020, the European Commission published Implementing Regulation (EU) 2020/402, making the export of certain personal protective equipment (‘PPE’), such as mouth masks, facial masks and protective clothing, subject to the production of an export authorisation. That Regulation was amended by Commission Implementing Regulation (EU) 2020/426 of 19 March 2020. On 20 March 2020, the Commission furthermore published legally non-binding guidelines on the PPE export restrictions. We previously wrote several articles regarding these export measures. Regulation (EU) 2020/402 was in force for six weeks and has meanwhile expired.
Unfortunately, the pandemic caused by the outbreak of the new corona virus SARS-Cov-2 and the disease COVID-19 caused by this virus is far from over. As the crisis continues to hold the world in its grip, the demand within the European Union for personal protective equipment, that still suffers from major shortages worldwide, remains very high.
The European Commission continues export authorisation requirement for exports of personal protective equipment
On 23 April 2020, the Commission adopted Implementing Regulation (EU) 2020/568. This new regulation, which effectively follows the previous measure, entered into force on April 26, 2020 and shall apply for a period of thirty (30) days.
In the recitals to the new regulation, the European Commission notes that the demand for personal protective equipment in the EU, and in particular for protective masks (and surgical masks), gloves, goggles, face-shields, and overalls, remains very high and is even continuously increasing. There are shortages in the EU internal market and in the current circumstances personal protective equipment has been identified as essential goods. The Commission reports on the efforts that have been made in the meantime to ensure an adequate supply of personal protective equipment across the EU. For example, production capacity has been stepped up, a joint tender has been launched in which 25 Member States participated and a strategic rescEU stock of medical equipment has been decided under the Union Civil Protection Mechanism.
Despite these actions, and given increased needs for PPE in the Union, a gap between demand and supply within the Union still exists, in particular concerning certain types of PPE. In light of these efforts to overcome the critical situation of shortage of certain types of PPE in the Union, further measures are warranted to contribute to remedying and preventing shortages of PPE. Because these measures, aimed at protecting health, impact trade, they should be targeted, proportionate, transparent and temporary.
Summarily, the Commission has decided to make the export of certain personal protective equipment from the EU once again subject to a temporary license. The principle of international solidarity is mentioned in the recitals; Member States should authorise exports to enable the provisions of emergency supplies in the context of humanitarian aid.
Exports to the member States of the European Free Trade as well as certain overseas countries and territories are once again excluded from the export authorisation requirement. Given the close integration of the production value chains and distribution networks, subjecting exports of certain personal protection equipment to these countries to an export authorisation requirement would be counterproductive, according to the Commission.
The recitals reiterate that, under the Withdrawal Agreement, the United Kingdom is to be considered as a Member State, and not as a third country, during the transitional year 2020.
Export authorisation required for Union goods and for non-Union goods
The core of the new Regulation is Article 2, which requires an export authorisation established in accordance with the form set out in Annex II for the export of certain types of PPE, listed in Annex I, whether or not originating in the Union. The authorisation is therefore a requirement for Union goods and for non-Union goods. Compulsory export authorisations are requested and issued by the customs authorities of the Member State where the exporter is established. Export without a valid export authorisation is prohibited and therefore punishable.
Annex I to the Regulation contains three categories of personal protective equipment “protective spectacles and visors”, “mouth-nose-protection equipment” and “protective garments”. Annex I contains a point-by-point description of the products concerned and the CN codes are listed in column 3.
Duration of the new measure
The question is whether the export authorisation requirement will remain in force after this period of 30 days. The Commission states that it shall monitor the situation and, when necessary, review expeditiously the period of application of this Regulation, and its product scope, taking into account the evolution of the epidemiological crisis caused by the COVID-19 disease and the adequacy of supply and demand in the Union market. Article 5 contains a review clause for this purpose. The Commission notes that based on the development both in terms of the spreading of the COVID-19 disease and the adequacy between supply and demand, the Commission will review the situation on a regular basis and consider the need to shorten or extend the duration (initially another 30 days) of the measures as needed.