Panel 1: free movement of goods and people

AuthorMariotti, Caterina; Ballesteros, Marta; Markowska, Agnieszka
The i mpact of CO VID-19 on the Internal Marke t and consumer protection - IMC O We binar P roceedin gs
9 PE 658.212
2.1. The impa ct of CO VID-19 on f ree movement of g oods:
shaping EU action around the principle of solidarity
Professor Roberto BARATT A, Department of Law at t he Universit y 'Roma Tre'
Professor Baratta opened his p rese ntatio n by de scrib ing the Internal Market challenges in th e time of
the COVID-19 emergency for the free movement of goods. At the onset of the crisis, national
governm ents reacted unilaterally in order t o ensure the pro tection of public health. Restrictions on
imports and exports are allowed un der EU law provided certain conditions are res pected. In particular,
res triction s to the Internal Market are possible under Article 36 TFE U provided that the cond itions of
the three-tiered test esta blished by th e CJEU are respected: t he measures must be (a) justified, i.e.
suitable, necessary an d proportionate; (b) applied in a non-discr imi nat ory m an ner ; and (c) transparent,
i.e. not ified to the Co mmis sion . The Commission has stated that it is treating such cases as a matter of
priority 3, h owever Professor Baratta stressed that, at this stage, it is not possible to give concrete
examples of the compliance of the adopted national measures with these requirements, s in ce
infringement pr oceedings at the pr e-contentious stage are strictly confidential. This is an
unprecedented situation and Professor Baratta's assumption is that the Commis sion prefers to
persuad e Member Sta tes to mak e sure that when the res trictions are applied, they comply with the
'three-tiered t est' rather than trigger infringement proceedings. He argued that legal actio n does not
appear so effective to challenge national interventions hindering the Internal Market: res ortin g to such
actio ns is har dly a deterren t because the final CJEU judgment wou ld be untimely.
Professor Baratta then focused on the common approach adopted by the EU institutions un de r oth er
legal b ases, dividing the EU actions into two categories. The first category concern s action s aim ing to
reconcile the Internal M arket an d public heal th. Professor Baratta focused on two exam ples in this
regard. Firstly, he discussed the 'Green lanes' meant to preserve the EU-wide operation of supply chains
and ensure the functioning of the Internal Market. In two s oft law instr uments, the Co mm ission
reminded the Mem ber States of their EU law obligations 4. The Commiss ion, in part icular, demanded
that border crossing through 'Green lanes' should not exceed 15 minutes, including all checks.
Professor Baratta underlined that , to the best of his k nowledge, 'Green lanes' are wo rking qu ite
effectively. The second example concerned expor t au tho risati ons to third countries as re gard s pe rsonal
protection equipment. Professor Baratta considered that export authorisations to t hird countr ies is a
tool to be used cautiously, i.e. subject to strict conditions and as a remedy of last resort. In his view, the
Commis sion is no t goin g to use t his inst rument a nymore, at leas t for t he tim e being .
The second cat egory pertains to measures wher eby the EU has sought to help M ember States to
keep the market open and mak e it more resi lient to crises. Three examples were analysed in this
context. Firstly, Prof essor B arat ta discuss ed joint procurement act ions for m edical and similar goods.
This is an actio n adopte d under the public health field. This is quit e a f lexible instr ument for joint
purchasing which has been deployed for va rious medica l (and s imilar) goods and which could be used
3 See Communication to the European Parliament, the European Council, the Council, the European Central Bank, the European Investmen t
Ban k and the E urogrou p on coordina ted e conomic resp onse to the CO VID- 19 outbreak, COM( 2020)112 final of 13.03.220, para 3.1,
available at: https: //eu ri=CELEX% 3A52020DC0112&qid =1605097126041.
4 Europ ean C ommission, Covid -19 Guidelines for border management measures to protect hea lth and ensure the a vailability of goods and
essential services, C(2020)1753, 2020/C 86 I/01, OJ C 86I, 16.3.2020, pp. 14, available at: http s://eu
content/EN/TXT/?uri=C ELEX%3A52020X C0316%2803%29&q id=1605043982810 an d Communica tion from th e Commission to the
European Parliament, the European Council and the Council on additional COVID-19 response measures, COM(2020) 687 f inal,
28.10.2020, available a t: https: //eur ri=COM:2020:687:FIN.

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