COVID-19 and protections for personal protective equipment

Miriam Schuh

Now that the global outbreak of COVID-19 has dramatically increased the demand for medical protective equipment and is expected to continue to do so in the future, shortages in the supply of said products are starting to emerge within the EU.

In order to prevent a possible critical situation, the Commission was forced to take immediate measures, which were initially limited to six weeks. This is in no small part because some third countries who have traditionally supplied the EU have made the official decision or reached an informal agreement to restrict the export of relevant protective equipment.

According to the Implementing Regulation (EU) 2020/402, as of now an export authorization must be obtained for the export of the following products:

  • Protective goggles and visors
  • Face shields
  • Mouth and nose protection
  • Protective clothing
  • Gloves

Export without an export authorization is prohibited. This applies regardless of whether the products originate in the European Union or not.

The competent authorities are required to decide whether to grant an export authorization as soon as possible and at the latest within five days of receiving all the necessary information. The period may be extended by an additional five days in exceptional cases and for duly justified reasons.

If the products are located in a Member State other than the one in which the application for the export authorization was submitted, that Member State must be consulted. The Member State consulted must, within 10 working days, communicate any objections which are binding on the Member State handling the application. The total theoretical maximum time taken to process an application for an export authorization is therefore 20 days.

Despite the mandatory export authorization, the Commission explicitly states that the measures do not constitute a general export ban. As long as the overall objective of the measures, namely not to jeopardize the availability of PPE on the market of the Member State concerned or elsewhere in the Union, is secured or the export serves one of the purposes mentioned in Article 2(3) of Implementing Regulation (EU) 2020/402, the necessary export authorization may be granted at the discretion of the Member State concerned.

Both imports into the Union (see our news on the relevant Commission Recommendation) and trade between the Member States of the Union are not affected by the above-mentioned measure. This includes trade with the United Kingdom of Great Britain and Northern Ireland in accordance with Section 4.2 of the Commission Guidelines (2020/C 91 I/02) and between the EFTA countries, the countries listed in Annex II to the Treaty and the Faeroe Islands, Andorra, San Marino and Vatican City in accordance with Article 1 of Implementing Regulation (EU) 2020/426.

Practical advice

Uniform requirements and the exemption for the EU internal market should simplify things considerably and allow a higher level of certainty in practice. As a result, the German Federal Ministry of Economics and Energy revoked its order of 12 March 2020 in response to the European measures on 19 March 2020 (BAnz AT 19.03.2020 B11).

A list of the competent authorities will be made available on the website of the Directorate General for Trade. Member States should send the contact details of the respective competent authorities to the Commission by midnight on 20 March 2020.

If a necessary export authorization is not granted and any delivery obligations cannot be fulfilled as a result, the terms of the contractual supply relationship and the possible application of Incoterms will determine the outcome. We provide an overview of the relevant aspects here.

[March 2020]