UPDATED: BELGIAN FEDERAL GOVERNMENT RESTRICTS THE SALE OF PERSONAL PROTECTIVE EQUIPMENT AND MEDICAL DEVICES THAT CAN BE USED IN THE FIGHT AGAINST COVID-19
On 23 March 2020, a Ministerial Decree on special measures in the context of the SARS-CoV-2 pandemic on the basis of Book XVIII of the Code of Economic Law (“the MD”) was adopted by the Belgian Minister of Economic Affairs, which restricts both the retail and wholesale distribution of certain types of personal protective equipment (“PPE”), as well as of medical devices used for treating Covid-19 patients. Further amendments have been implemented by Ministerial Decrees of 27 March and of 7 April 2020.
According to the MD’s preamble, it concerns types of PPE and devices that are very important in the fight against the coronavirus and whose availability is threatened by market disruption and measures taken by other countries.
In this blog, we provide a short description of the concerned trade restrictions followed by a legal analysis in the light of fundamental principles of European law.
CAN I WORK TOGETHER WITH OTHER COMPANIES TO TACKLE THE CORONAVIRUS PANDEMIC?
Companies can play a very important role to overcome the effects of the current corona-crisis and can feel the need to cooperate with other companies in order to, for example, ensure the fair distribution of essential scare products (such as medicines, face masks, gloves, etc.) and services to end consumers.
However, under normal competition rules, such cooperation between competitors is generally not without risk. The Commission has now explained what kind of competitor cooperation would, exceptionally and temporarily, not be considered as an antitrust violation.
PUBLIC PROCUREMENT PROCEDURES FOR CONTRACTING AUTHORITIES IN CASE OF URGENCY
The coronavirus outbreak has created an urgent need for certain goods, such as medicine and medical devices. But do the public authorities still need to follow the complete public procurement procedures to procure these urgently-needed goods?
BELGIUM TAKES MEASURES TO AVOID MEDICINE SHORTAGES DURING THE COVID-19 PANDEMIC
On 8 April 2020, the Belgian federal agency for medicines and health products (‘FAMHP’) adopted a consolidated version of its decision (the ‘Decision’) taking the following urgent measures for certain listed medicines (and raw materials) to avoid medicine shortages during the SARS-CoV-2 pandemic.
DOES COMPETITION LAW ALLOW COMPETING RESEARCHERS TO COLLABORATE ON CORONA-R&D?
The Belgian government has taken draconic measures to limit the damage caused by the corona-virus. However, at least three key products are necessary to defeat the virus: new vaccines against the SARS-CoV-2 virus , quick and trustworthy diagnostic tests to detect the virus, and effective medicines that can cure the COVID-19 disease. To develop these products, we depend on pharmaceutical companies, R&D companies, research institutes, universities and the like. But does competition law allow competing researchers to collaborate on corona-R&D?
CAN A MEMBER STATE DURING THE CORONAVIRUS CRISIS PROHIBIT A LIFE SCIENCE/HEALTHCARE COMPANY FROM DELIVERING CERTAIN PRODUCTS (SUCH AS TESTING KITS OR PROTECTIVE MEDICAL GEAR) OR MEDICINES TO OTHER EU/EEA COUNTRIES?
So far during the coronavirus crisis, several countries such as France and the Czech Republic have already announced bans on exports of protective gear to avoid shortages in their countries. But is this action in conformity with the principle of free movement of goods as provided for in Articles 34-36 TFEU?