The EU market in times of a global state of emergency: internal and external trade barriers in the age of pandemics

This article explores the immediate reaction of the EU and its Member States to the COVID-19 outbreak in Europe in terms of trade restrictions. Almost all Member States adopted export control measures on personal protective equipment (PPE) essential to combat the pandemic in order to preserve it for the domestic market. The trade barriers affected the intra-EU trade as well as the external trade with third countries. The article explores whether and to what extent these restrictive measures on exports within the internal market may be justified on grounds of the protection of health and life of humans, as allowed by Article 36 TFEU. It will be argued that the consolidated case law justifying a Member State facing health emergencies to adopt restrictive measures to protect the population on its territory is not suitable in case of pandemics. The degree of market integration and the rising concept of health solidarity as an EU objective allow a different interpretation of the health exception assuming as term of reference the whole EU population. The article further analyzes the export authorization scheme adopted by the Commission to allow restrictions on exports of PPE to third countries in case of shortages in essential goods in the Union. The article concludes by suggesting a preventive EU mechanism of control of intra-EU export restrictions in case of serious cross-border threats to health, similar to the export authorization scheme for extra EU exports, in order to avoid unilateral and disjointed responses by Member States in the future.