Law of Secure Supply: Internalizing the Crisis Exceptions

The LEXSECURE project studies the legal foundations of global supply chains and what could be done to ensure secure supply of critical goods, such as medical supplies, in times of global crises. Today's system of transnational trade is based on the belief that state interference should be avoided to allow free and efficient trade. Nonetheless, several exceptions are built into the system to allow states and private actors to derogate from this starting point in case of internal crises. If global trade is instead struck by a system-wide crisis, such as global refugee streams, climate change, or a pandemic like COVID-19, then there is a danger that each state's uncoordinated and indiscriminate use of available exceptions disrupts the system more than is reasonable and prevents critical supplies from reaching those most in need. LEXSECURE maps the system of exceptions in transnational trade and evaluates possibilities for developing secure supply chains to counter future crises. Within the LEXSECURE consortium, the research conducted by the Ulap focuses on EU internal market law. We examine how EU market regulation affects the Member States’ possibilities to rely on either outsourced production or state-led self-production (the make-or-buy dilemma). The research maps out the responses prompted by crises such as COVID-19 and brings to fore difficulties that stem from the division of competences between EU and Member States and the choice to rely either on markets or self-production to foster security of supply. We seek to develop a coherent approach to fostering security of supply through law – as opposed to the current regulatory approach that seems to drift to the use of exceptions every time the society is faced with a crisis.