Analysis: “Export, import and EU circulation of protective and medical equipment in the context of COVID-19 outbreak” by Darya Budova
Today, personal protective equipment (‘PPE’) –masks, gloves, goggles, face-shields, and overalls – as well as certain medical devices – such as medical ventilators and testing kits – are essential for addressing the public health emergency caused by COVID-19. The European Commission has been taking steps to ensure the supply of this material within the EU, launching public procurement calls and adopting initiatives to increase European production capacities. But what is the state of play for the trade of these goods with third countries and within the EU? There are three issues to highlight: export restrictions, duties and tax relief for the import of these goods, and their movement within the EU.
Authorisation for export of protective equipment
On 15 March 2020 the European Commission made the exportation of certain protective equipment outside of the EU subject to an export authorisation by the Member States. The equipment concerned includes protective spectacles and visors, face shields, mouth-nose-protection equipment, protective garments and gloves. A detailed Analysis of this measure, by Isabelle van Damme, can be found here.
This restriction is not applicable for exports to countries that are members of the European Free Trade Association, Andorra, the Faroe Islands, San Marino and Vatican City, as well as the associated countries and territories that have special relations with Denmark, France, the Netherlands and the United Kingdom (the so-called ‘Annex II countries’).
VAT and import duties on the import of protective and medical equipment
As well as the conformity assessment procedure (that may be subject to certain simplifications in the context of the COVID-19 outbreak, see Commission Recommendation 2020/403) and customs controls, the importation of PPE and medical equipment is generally subject to customs duties and VAT. For instance, in normal circumstances, face masks may be subject to a 6.30% duty, surgical gloves to a 2% duty and protective spectacles and visors, to a 2.90% duty, plus VAT at the rate applicable in the Member State of the importation.
Both taxes are adopted at the EU level and contribute to the EU Budget, so Member States cannot, in principle, adopt national measures to grant exemptions on the import of these goods. But EU law does provide certain tools to do so, that are already being applied by some Member States.
Firstly, there is a relief on customs duties for goods imported for the benefit of disaster victims (established in the Council Regulation 1186/2009) and a similar exemption for VAT (established in Council Directive 2009/132). The relief is established for goods imported by state organisations or other charitable or philanthropic organisations approved by the competent authorities, as well as to disaster-relief agencies. The imports should be intended to be distributed or made available free of charge to the victims of disasters affecting the territory of one or more Member States or used by the disaster-relief agencies in their activities (such as PPE, for example). The goods imported under such conditions may not be lent, hired out or transferred for consideration or free of charge rather than to an organisation itself entitled to benefit from the relief (otherwise, the duties and VAT will be assessed).
Granting of this relief is subject to a decision by the Commission upon the request of the affected Member States, and the prior consultation of the other Member States. While the decision is adopted, Member States may suspend any import duties chargeable on the goods concerned subject to an undertaking by the importing organisation to pay such duties if relief is not granted. Spain, for instance, has already notified that such a decision has been requested from the Commission and that it is applying the relief.
Secondly, medical, surgical and laboratory equipment (or other goods, such as ambulances) that will be temporarily used in the EU to address the COVID-19 outbreak, may be imported under the temporary admission procedure with the total relief of the duties for import of disaster relief material (Commission Delegated Regulation 2015/2446). The Commission has recently stated in its Guidance on Customs issues related to the COVID-19 emergency that ‘the Commission is currently taking actions to ensure that the temporary admission of items for disaster victims of the COVID-19 pandemic crisis becomes free of customs duties and VAT’ and that ‘the present exceptional situation should be considered as a “disaster”’ in the terms of that regulation. In addition to the duties relief, this alternative may entail customs formalities simplifications, as goods benefiting from the total relief may allow these goods to be declared by any other act rather than classical customs declaration, for example, by the sole act of crossing the border.
Movements within the EU
Once the PPE or medical equipment is placed onto the EU market, in principle, there are no additional restrictions to move freely.
However, in the context of the severe public health emergency caused by the COVID-19 and shortages in the supply of PPE, some Member States decided to take certain measures at the national level. Such measures included unilateral restriction for the export of goods, border controls and even confiscation of certain materials at the border.
The EU has requested the Member States to ‘revoke any restrictive national actions taken, formally or informally, concerning either exports to third countries or trade between the Member States within the Single Market’ (see the Guidance note for export authorisations). Yet, taking into account that the Treaty allows Member States under certain strict conditions to deviate from Single Market rules to protect health and life of humans, the EU has requested such restrictions to be transparent, duly motivated, proportionate, relevant, mode-specific and non-discriminatory (see the Guidelines for border management measures to protect health and ensure the availability of goods and essential services and the communication on the Coordinated economic response to the COVID-19 Outbreak).
Darya Budova is a practicing attorney in law specialised in tax disputes and EU tax law, with expertise in taxation in international trade.