We need respiratory face masks for our business operations in the UK and France. Can the UK or French Governments requisition them?

Key Takeaways

• With protective face masks becoming a scarce resource during the COVID-19 pandemic and authorities stepping up public requisitions and export controls on these products, businesses who require this equipment for global manufacturing operations may have concerns about supply reliability over the coming months.
• While there is no current indication a public requisition is likely to be launched in the UK, similar to the one implemented in France, existing emergency powers legislation could enable confiscation measures to be taken swiftly.
• France has imposed requisition of face masks until 31 May 2020, to allocate them with priority to healthcare professionals and positively-diagnosed patients.
• Further, a new EU regulation, which is directly effective in the UK, has made all exports of face masks subject to government license, which may limit the ability of businesses to effectively reallocate supply.
• This position is as at 1 April 2020 and is subject to change as governmental positions in relation to the pandemic develop.

Protective face masks have become a common sight in recent weeks but with global stocks under pressure, national and supranational authorities have also strengthened legal controls to ensure an adequate supply of these products for patients and health workers. These efforts have included public requisitions on masks (such as those undertaken by the French government) and export controls or bans (such as the export ban in the Czech Republic). These developments may be a real cause of concern for manufacturing businesses who depend upon the use of face masks in their supply chains.

In this OnPoint, we consider the current position under UK law in relation to public requisitions on face masks and the export of such products outside of the UK, in the context of the rapidly evolving legal and policy response to the COVID-19 pandemic.

Could the UK government requisition face masks from entities operating in the UK?

• There are currently no initiatives by the UK government to requisition face masks for public use. However, pursuant to emergency powers legislation already in place in England and Wales, it is possible that temporary requisitioning powers could be implemented with haste.
• The key statute in relation to such matters is the Civil Contingencies Act 2004 (the “CCA”), which permits the enactment of temporary special legislation (emergency regulations) to deal with the most serious of emergencies.
• Regulations can only be made where they are urgently needed to prevent or mitigate an “emergency”. An “emergency” covers, amongst other scenarios, any situation threatening serious damage to human welfare in the UK (including illness and loss of life). Measures taken must be proportionate and guidance indicates an emergency must be “catastrophic” to warrant the use of CCA powers. It is possible that the COVID-19 pandemic could be considered sufficiently serious to engage the CCA.
• Any temporary regulations made will last for a maximum of 30 days, but there is no prohibition on creating new emergency regulations immediately after the lapse of the 30 day period (provided the relevant conditions continue to be met).
• The scope of temporary regulations which could be enacted is very broad and expressly includes the power to requisition or confiscate property (with or without compensation).1
• As of yet, there is no indication that the government will deploy these powers. Furthermore, new government guidance on public procurement2 suggests the government may focus on accelerating the process by which UK government entities can purchase items from willing sellers, rather than resorting to confiscating products from businesses.
• Nevertheless, it is clear that there is legal scope for a public requisition of face masks to be implemented via a temporary regulation under the CCA. Businesses should consider that any measures could be implemented swiftly and, to the extent possible, plan accordingly.

Are there any controls on the export of face masks outside of the UK?

• There is currently no UK “ban” on the export of face masks. However, a recent EU implementing regulation3 imposed EU-wide export controls on personal protective equipment, including face masks, on a temporary basis.
• Although the UK left the EU on 31 January 2020, it continues to be treated as a Member State under EU legislation throughout the implementation period, due to expire on 31 December 2020. In the meantime, EU export controls will be effective in the UK.
• The effect of the regulation is that all exports of personal protective equipment from the UK to destinations outside of the EU are prohibited, unless a licence is first obtained from the government. The export controls will apply for a period of six weeks (subject to further extension) on a blanket basis, with no exceptions for specific industries.
• In managing supply chain issues, businesses should consider these potential limits on sourcing face masks and re-allocating supply between national operations.While the UK government has so far taken a moderate approach to the control of protective face masks, as the situation evolves there is legal scope to further interrupt commercial supply chains to secure this vital demand.

What is the situation in France?

In addition to the call for volunteer donations of existing stocks of masks, France has adopted a new set of rules to impose requisition.

Relevant law has been amended to introduce a new definition of the sanitary emergency state, to broaden the use of emergency powers to the current pandemic situation.

A decree of 23 March 2020 has imposed requisition of face masks until 31 May 2020, to ensure that they are allocated with priority given to healthcare professionals and positively diagnosed patients.

The requisition applies to all existing and newly produced stocks of medical masks of face type FFP2, FFP3, N95, N99, N100, P95, P99, P100, R95, R99, R100 held on the French territory by any person or legal entity, but also anti-projection masks complying with the norm EN 14683, held by manufacturing or distributing entities.

Imported quantities above 5 million units per persons over a three month period may also be subject to requisition pursuant to above EU Regulation.

Requisitioned persons will be indemnified by the French government, along the same rules applicable to requisition of goods during wartime.