In response to the current epidemiological crisis linked to the spread of the "Covid-19” coronavirus, numerous border management measures and measures to limit the movement of certain goods have been taken by the European Union and by its various member states, notably France.
What is the impact on the freedom of movement of goods within the EU?
Restrictions on the circulation of goods between the member states of the European Union: the principle of free movement remains the rule
The free movement of goods within the internal market is one of the four fundamental freedoms provided for by the Treaty on the functioning of the European Union (TFEU). In this regard, articles 30, 34 and 35 of the treaty prohibit the member states of the European Union from imposing quantitative restrictions and any other measures with an equivalent effect on imports and exports between the member states.
Article 36 of the TFEU nevertheless authorises the implementation of such measures provided that they are justified by reasons which are listed and limited in number, such as reasons of public order, public security or the protection of people’s health and life. On this basis, a certain number of member states have introduced restrictive measures on the exports of medical equipment and supplies.
The European Commission has however given a reminder, in accordance with the principles evoked by the Court of Justice, that the measures taken by the member states on the basis of article 36 (notably with the objective of "protection of people’s health and life") must be compliant with the principle of proportionality, i.e. that they must be appropriate, necessary and proportionate to meet this objective.
Thus in a communication of 13 March 2020 relating to the coordinated economic measures taken in the EU in response to the Covid-19 epidemic, the Commission stated that:
- a pure and simple ban may not alone meet the legal requirement for proportionality since such a measure does not, in itself, guarantee that the products will reach the people who most need them and would thus prove inappropriate in achieving the objective of protecting the health of people living in Europe;
- the measures (i), the scope of application of which is not clearly defined and which are not limited to real and actual needs, (ii) which do not have a solid justification and/or (iii) are not limited in duration may increase the risk of shortfall and are therefore probably disproportionate;
- the measures regulating the markets with adequate mechanisms to convey essential goods to where they are the most needed, both within the member state concerned and to other qualified buyers in other member states, may provide a positive contribution to the coordinated European approach to help to save lives; and
- the regulation of prices may be useful to prevent them from soaring and abuses, provided that these rules apply equally to all the operators concerned, without discrimination based on nationality or establishment, and that they are accompanied by other appropriate measures to channel the supplies to those who have the greatest need of them.
The Commission, moreover, published on 16 March guidelines relating to the border measures to protect health and maintain the availability of essential goods and services. It gives a reminder therein that the free movement of goods is essential to maintain their availability.
In this regard, the Commission has encouraged the member states to designate priority routes for the transport of goods and to enable workers in the transport sector to move freely across borders. Consequently, the member states are invited not to put in place control measures, the effect of which would be to disturb the continuity of economic activity and the functioning of the supply chains.
Lastly, the Commission has indicated that any restriction measure imposed by a member state on the transport of goods must be transparent, motivated, proportionate, necessary and non-discriminatory and must, in any event, be notified to the Commission and to all the member states prior to its implementation.
The Commission, moreover, keeps up-to-date a page dedicated to all national measures put in place by the member states to regulate transport.
The restrictions on the exporting of goods outside the internal market: a harmonised response at European level
The Commission published an execution regulation on 14 March 2020, which is directly applicable and which subjects the exporting of certain products outside the EU to the presentation of an export authorisation which must be issued by the competent authorities of the member state in which the exporter is based.
The products concerned by this regulation are "individual protection equipment" listed in full in its appendix I, i.e. notably protective goggles and visors, face masks, equipment protecting the mouth and the nose and protective clothes and gloves.
This regulation has been amended by a second execution regulation of 19 March 2020, which has excluded from the scope of application of this obligation exports to the four members of the European Free Trade Association (Norway, Iceland, Liechtenstein and Switzerland), and to the Faroe Islands, Andorra, San Marino, the Vatican City and the overseas territories of the EU member states (listed in appendix II of the TFEU).
The measures taken in France
Although France has, to-date, adopted no provisions preventing the importing into the country of goods originating from other member state countries, several measures have been taken nationally which affect the transport of goods, such as the measures listed below:
- A decree adopted on 16 March (i.e. two days after the government order https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041722917&fastPos=7&fastReqId=1057086726&categorieLien=id&oldAction=rechTexteproviding for the closure until 15 April 2020, of all places to which access to the public is given which are not indispensable to the life of the nation) has put in place several confinement measures, scheduled for an initial period of fifteen days, banning all movements which are not justified by fully listed cases and making the presentation of a certificate mandatory for such movement;
- A government order dated 19 March provides for the obligation, when carrying out goods transportation operations, to comply with a certain number of hygiene and social distancing measures, known as "barriers", by the drivers of transport vehicles, and by the personnel of the loading and unloading premises;
- A second government order, adopted on the same day, provides for the removal at certain periods of the bans on the movement of goods transportation vehicles of over 7.5 tonnes in total weight, loaded;
- A government order of 20 March provides for the increase, under certain conditions, of the daily driving duration for the road transportation of goods.
- A decree from 23 March 2020 makes the confinement measures provided for by the decree of 16 March stricter, along with certain health precautions in public transport and in the transportation and delivery of goods.
N.B. similar measures have been taken by several member states since, in particular, the Italian government adopted a decree on 22 March suspending the ban on the movement of heavy goods vehicles with a maximum total mass of more than 7.5 tonnes on non-urban roads. Similarly, Lithuania has put in place, starting from 19 March, temporary and limited waivers to the application of driving and rest times for drivers involved in the national and international delivery of goods.
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