Public health emergencies and export restrictions: Solidarity and a common approach or disintegration of the internal market?

Abstract

One of the issues which has emerged during the COVID crisis concerns export restrictions on basic supplies – medical equipment – imposed by some EU Member States. Apart from fracturing the internal market, such practices may lead to stockpiling and wastage due to non-priority use of medical equipment. Crucial supplies may fail to reach the people who need them most. Export restrictions may be justified by Member States based on public health protection, subject to the proportionality test. This article claims that the traditional model of justifying market restrictions is not well-equipped to address public health emergencies. It proposes interpreting the notion of public health taking into consideration the public health situations in different EU Member States in cases of emergency, not limited to the situation in the Member State imposing the export restriction. This approach is based on individual and national solidarity within the Union. Finally, a refined application of the proportionality test, to be applied when assessing national export restrictions within the described context, is proposed.