30 March 2020

Danish COVID-19 measures are consistent with EU free trade rules

Based on a 2019 academic article, Professor Morten Broberg concludes that the Danish COVID-19 actions do not contravene EU free movement rules.

The corona pandemic has led European governments to close borders, to ban the export of so-called protective equipment and to promise extensive state aid to ailing companies.

Many of the measures run counter to the idea of a well-functioning, free market, one of the cornerstones of EU cooperation. The European Commission is well-known for cracking down on Member States' measures, even where these measures only restrict trade to a very limited extent. Nevertheless, amid the cascade of trade-limiting measures, the European Commission is astonishingly silent. Has the European Commission gone into hiding for purely political reasons? Or is there another reason for the European Commission's passiveness? 

In a 2019 contribution to the work, The Internal Market and the Future of European Integration: Essays in Honour of Laurence W. Gormley Professor Morten Broberg has examined the interaction between EU rules on the free movement of goods and services in the face of Member States' ability to prevent epidemics and other potential hazards. 

Broberg demonstrates that two key principles of EU law are essential: The so-called proportionality principle implies that the barriers to trade that result from a Member State's intervention must be commensurate with the risk to be mitigated by the intervention. And the so-called precautionary principle regulates how authorities may act when the risk they seek to address is subject to scientific uncertainty: 

In the current COVID-19 epidemic situation, the proportionality principle, together with the precautionary principle, provides a broad framework for EU Member States (and the EU as such) to take very far-reaching steps to protect their populations. When the European Commission has not really challenged the far-reaching actions taken by the Danish authorities, it is because the measures comply with these basic principles of EU law – and therefore comply with EU rules, says Morten Broberg. 

In connection with the COVID-19 epidemic, Cambridge University Press has chosen to make Broberg's contribution freely available to all (Open Access). It can therefore be downloaded free of charge from the Cambridge University Press website. The article can be found here.