I. Introduction
Owing to the now proverbial claim that “Europe will be forged in crises, and will be the sum of the solutions adopted for those crises,” Jean Monnet features as a near-obligatory prelude, or an optional postlude, to academic writings on EU law in times of crisis. Of 303 scholarly references to his prophecy, well over half have been made since 2020, and nearly all have been made after 2008, the beginning of the decades etched with crises.Footnote 1 Since then, the EU and its Member States have continuously had to devise responses to a plethora of different and sometimes inter-connected crises: the economic, financial and subsequent Euro crisis, the refugee and migration crisis, the rule of law crisis, Brexit, the Covid-19 health crisis, and the security and energy crises as a consequence of Russia’s invasion of Ukraine. The permanence and the prevalence of crises have given rise to terms such as “permacrisis”Footnote 2 and “polycrisis,”Footnote 3 which, at times, have had an existential note: think of the Euro crisis, Brexit, the climate crisis, or the ever-stronger need for future-proof regulation of artificial intelligence. These crises have pertained to different areas and types of EU competence, have had different origins (endogenous and exogenous), different durations (acute emergencies and long-standing crises), and have had different potential for contestation over the appropriate responses within the EU, and between the EU and the Member States. Regardless of the diverse nature of these crises, the responses to them have had to be devised, often in innovative ways, under the constitutional framework established by the Lisbon Treaty. It is the resilience, that is the malleability of this framework in times of crisis, that this special issue aims to elucidate.
All the contributions in the special issue “A Union of Crises: In Search of Constitutional Resilience”, co-edited by Marjan Kos and myself, stem from two premises. First, the strong momentum of Treaty change that was alive in the 1990s and 2000s has extinguished. In dealing with the ongoing and developing perma-poly-crisis, the EU and the Member States must seek and find responses by skilfully navigating the existing primary law framework, and perhaps occasionally venturing outside of it. Second, EU law literature has failed to sufficiently grasp this reality and offer a cross-cutting analysis of how the existing constitutional framework can be moulded to tackle the multifaceted crises facing the Union. As noted by Bruno de Witte, unlike the field of European studies, “the legal literature has mostly focused on single crisis policies.”Footnote 4 This special issue aims to remedy this by offering a perspective on EU crisis law that transcends the existing focus on individual crises. It provides a reflection on how future crises, whatever they might be, can be accommodated within the constitutional bargain struck in Lisbon.
II. The unlikelihood of treaty change
Since the adoption of the Lisbon Treaty, Treaty change has never been seriously on the agenda. This began to change somewhat in 2022, when the European Parliament adopted a resolution, calling on the Council to submit a proposal to the European Council for a Treaty change, and for it to convene the Convention on the revision of the Treaties.Footnote 5 The Parliament framed its call in the context of the “several crises and unprecedented challenges” the EU has faced and argued that “especially following the most recent crises, […] the Treaties need to be amended urgently to make sure the Union has the competence to take more effective action during future crises […].”Footnote 6 Having received no response from the Council, the Parliament reiterated its call in November 2023. It prepared a concrete proposal, which would introduce an exclusive EU competence in the fields of the environment, biodiversity and climate change,Footnote 7 a shared competence on public health and cross-border health threats,Footnote 8 and broaden the Union’s competences in the areas such as energy, foreign affairs, and external security and defence.Footnote 9 It also proposed to expand qualified-majority voting in the Council to sanctions and foreign policy, to establish a defence union, and to replace Article 122 TFEU with a new emergency clause in Article 222 TFEU that would allow for full parliamentary scrutiny of emergency measures.Footnote 10 The ambitiousness of the proposal permeated with an ethos of crisis management, however, did not reflect the keenness with which the resolution was adopted: fewer than half of MEPs voted in favour (291), barely surpassing the 274 “nay” votes of the Treaty-change sceptics. Alongside the Parliament, only the Commission has also reluctantly dipped its toes in the waters of Treaty change through occasional unsubstantiated statements of support for Treaty change by the Commission President.Footnote 11
The Parliament and the Commission have been the only actors willing to reluctantly entertain (re)opening the Treaty revision process. Indeed, the Council ignored the Parliament’s calls to trigger the amendment procedure, and the European Council omitted the idea of Treaty change entirely from its Strategic Agenda 2024–2029.Footnote 12 Their silence reflects the explicit and outright rejection of the idea of Treaty change by most Member States. After the conclusion of the Conference on the Future of Europe, thirteen Member States published a non-paper, recalling “that Treaty change has never been a purpose of the Conference” and warning against “unconsidered and premature attempts to launch a process towards Treaty change.”Footnote 13 This has caused the Director of the Legal Service of the Commission to characterise “the likelihood of [T]reaty reform as quite small given the political situation.”Footnote 14 And rightly so: however determined to push for Treaty change the Parliament and the Commission might be – and they do not seem very determined at all – it is the Member States who remain the masters of the Treaties. As long as the Member States are unwilling to open that Pandora’s box, no Treaty reform can be expected.
Regardless of the likelihood of reform, however, the centrality of the perma-poly-crisis in the debates on Treaty change should not be lost on us. Just as the Parliament justified its proposal on the EU’s alleged incapacity to tackle past and future crises, the Member States’ opposition is based on the diametrically opposite perception of the Union’s capability to react to crises. As expressed by the thirteen Member States, “[t]he EU’s handling of the crises in recent years – including COVID-19 and Russia’s ongoing aggression against Ukraine – have clearly shown how much the EU can deliver within the current Treaty framework.”Footnote 15 Whether Treaty reform is needed in the view of the relevant actors is therefore primarily a function of how well suited they perceive the existing constitutional framework to be to manage existing and future crises. In this discursive political and legal context, it is essential to develop a firm understanding of the dispersed EU constitutional framework relevant to crises, and to fruitfully contribute to the ongoing inter-institutional crises-centred debate on the necessity of Treaty change.
III. Missing the forest for the trees: the discrete crisis-specific focus of scholarship
Like the EU’s response to past crises, the scholarly attention devoted to them has been largely parochial and crisis-specific. Existing literature has done an admirable job at covering past crises individually, as discrete events. Plentiful literature has been produced on the economic and eurozone crisis,Footnote 16 the migration crisis,Footnote 17 the rule of law crisis,Footnote 18 or the Covid-19 crisis.Footnote 19 Though most of these crises spill over across political, economic and other dimensions, the scholarly attention to them has been largely sectoral, and the critical exploration of the concepts of “EU emergency law” or “EU crisis law” has been nearly non-existent until very recently. The extent to which literature has missed the forest for the trees is symbolised by the fact that perhaps the most influential work that deals with EU crisis and emergency law in a cross-cutting manner – some have labelled it as “seminal”Footnote 20 – is an editorial published by Bruno de Witte in 2022.Footnote 21
The few who have gone beyond crisis-specific scholarship have largely refrained from examining the broader image of EU crisis law as is, but rather explored what EU crisis law should be.Footnote 22 Calls have been made, for instance, to horizontally reform the system of competences contained in the Treaties,Footnote 23 or to generally reconfigure the EU institutional architecture by redesigning executive power and strengthening the Parliament.Footnote 24 Proposals have also been made for the codification of a fully-fledged emergency constitution, that is to include a set of constitutional norms in the Treaties that would create a fully contained emergency legal regime by laying down specific provisions on the processes of allocation of authority during crises.Footnote 25
But in complete contrast to such proposals, the EU emergency constitutional framework de lege lata is not a neat self-contained series of inter-related Treaty articles. It is instead a patchy quilt, “a complex and disparate set of rules found in many different parts of primary and secondary law, supplemented by institutional practice and judicial interpretations.”Footnote 26 This special issue aims to add to the few contributions that have analysed this set of rules, practices and interpretations in a cross-cutting way and critically appraise, through a bird’s-eye-view, this body of law and legal practice that some have begun describing through the term “EU crisis law.”
Having introduced the two common premises on which all the contributions to this special issue are based, Section IV outlines the architecture of EU crisis law, demonstrating its unique and complex hybrid nature, constituted of multiple different models of crisis accommodation. This sets the frame of reference for the four remaining contributions in the special issue, which Section V outlines. They build on this introductory sketch of the contours of EU crisis law by engaging a variety of perspectives: they try to discover a coherent definition of an “emergency” under EU law, explore how the principles of democracy and efficiency can co-exist in the adoption of acts in times of crisis, examine the extent to which the Union’s values in Article 2 TEU could be construed as imposing a positive obligations to prevent constitutional crises, and empirically ascertain patterns in the CJEU’s decision-making in its crisis-related jurisprudence.
IV. The constitutional contours of EU crisis law
To begin developing a meta-narrative of EU crisis law – the aim all contributions in this special issue strive towards – we first need a firm conception of the meaning of EU crisis law, and what its architecture de lege lata looks like.
Whenever discussing the meaning of “crisis law,” we inevitably run into the dilemma sports lawyers have been discussing for decades: are we studying “sports law” – an independent and autonomous area of law – or are we studying “sports and the law” – the application of traditional areas and rules of law to sport?Footnote 27 Beloff’s response – that the question is not of huge importance, but not of no importance – seems just as relevant to the concept of “crisis law” as it is to “sports law.”Footnote 28 Indeed, the outlook of this special issue is agnostic as to whether it is properly addressing, in the words of a recent Common Market Law Review editorial, “EU crisis law” or “EU law under crisis conditions.”Footnote 29 Unlike the narrower concept of “emergency law,” which has a more concrete and definable meaning (see Guido Bellenghi’s contribution in this special issue), “crisis law” is much more open-ended and difficult to pin down.Footnote 30 In this sense, “crisis” law is similar to “sports” law in that they were both originally conceived as applied law, that is law as applied to sports, or law as applied to crises, rather than autonomous and discrete areas of law.Footnote 31
It is far from unusual for novel areas of law to undergo the transition from applied law to autonomous law – think of contract law applied to employment becoming labour law, or of public law (broadly conceived) applied to the environment becoming environmental law.Footnote 32 It is not the purpose of this special issue to render a judgment as to how far towards the proclamation of independence (EU) crisis law as an area of law and as a discipline has come. Suffice it to say that in the context of EU law, the use of terms “crisis law” and “EU crisis law” already has a considerable history and is generally used to mean EU law in times of crisis.Footnote 33 This paper, and all other papers in this special issue, follow this established convention. Be that as it may, what is common to both terms is that they both implicitly accept that when the law and crises meet, something changes in how the law works. Part of what the articles in this special issue do is to explore in their own ways what is it that changes: how laws are adopted (paper by Thomas Verellen), what kinds of laws can be adopted and are being adopted (this section infra), how the law should be interpreted (paper by Miriam Schuler and Darren Harvey), or how judges behave and courts decide cases (paper by Eftychia Constantinou).
Like EU constitutional law generally, the architecture of EU crisis law reflects the hybrid genesis and development of the EU legal order, that is of a proto-federalist legal order established by an international treaty. As noted by Guido Bellenghi in this special issue, the EU legal framework consists of many elements of constitutional models of crisis accommodation, which are characterised by crises and emergencies not being regulated through the default decision-making processes, but by delegating emergency powers that allow for altered decision-making processes, be it by introducing temporary, simplified, or more executive-centred decision-making procedures with more limited legislative and judicial oversight.Footnote 34 At the same time, it also consists of many elements of international models of crisis accommodation, which are characterised by regimes of derogation and escape clauses, both of which allow for temporary derogations from international obligations, as well as limitation clauses, allowing for limitations of fundamental rights and freedoms for duly justified reasons.Footnote 35
The elements of both models of emergency and crisis accommodation shine through in different degrees in seven types of crisis measures – that is measures adopted to anticipate, manage or respond to a crisis – foreseen or allowed by the Treaties. Characteristics of constitutional models are most visible in (i) measures that may be triggered by the EU and (ii) measures that must be triggered by the EU. Conversely, aspects of international models of accommodation are reflected primarily in (iii) measures that may be triggered by the Member States and (iv) measures that must be triggered by the Member States. Elements of both models, constituting a hybrid model, can best be observed in (v) measures that may be triggered by the EU to allow Member State action and (vi) measures that may be triggered by the Member States to allow EU action. Exceptionally, when Treaties do not allow for the crisis response deemed necessary, Member States can resort to (vii) intergovernmental measures outside the architecture of EU law. Finally, beyond these types of crisis measures, the EU legislature has embraced the legislative model of emergency powers and crisis regulation, in line with which it regulates crises through the ordinary legislative process. A brief outline of these different elements that constitute EU crisis law is provided in turn.
1. Constitutional models of crisis accommodation
The principal characteristic of constitutional models of crisis accommodation discussed in this section is that they allow for extraordinary measures to be adopted in extraordinary times of crisis. As we shall see, the legal bases discussed here allow the adoption of measures in cases of, for instance, “natural or man-made disasters,” “natural disasters or exceptional occurrences,” or “major cross-border health scourges.” In line with the characteristics of constitutional models of crisis accommodation, most of these legal bases provide for derogations from the default decision-making process – the ordinary legislative procedure – and delegate the exclusive power to adopt crisis measures to the Council (on the proposal of the Commission), often at the complete exclusion of the Parliament. Even though the Council is of course a co-legislator, the exclusion of the Parliament and the monopolisation of normative power in the Council and the Commission doubly empowers the executive: the representatives of the national executives in the Council, and the Commission as the Union executive.
a. Measures that may be triggered by the EU
Extraordinary measures that may be triggered by the EU in times of crisis are contained in multiple legal bases scattered across the Treaties. A vast majority of these legal bases envisage the adoption of acts through a simplified decision-making process: of the nine legal bases discussed in this sub-section, only three foresee the adoption of an act through the ordinary legislative procedure. The commonality of the three legal bases – Articles 196, 78(2)(c), and 168(5) TFEU, as will become apparent – is that they seem much more prospective than reactive in the types of measures they foresee. It makes sense, therefore, that deviations from default decision-making processes are smaller when measures address a crisis ahead of time and their adoption is less urgent, than when a legal basis foresees the adoption of a reactive measure. As a result of their prospective outlook, measures adopted on these three legal bases might also seem, legitimately so, somewhat closely related also to the legislative models of crisis accommodation discussed below.
Among the “crisis” legal bases allowing extraordinary EU action, Article 122 TFEU has developed into the principal legal basis through which the EU has addressed most crises in the previous decade.Footnote 36 Article 122 TFEU contains two separate legal bases, though they are not always distinguished by the Commission and the Council and a general reference to “Article 122 TFEU” as the legal basis is made instead. Article 122(1) TFEU, on the one hand, allows the Council, on the proposal of the Commission, to adopt a broad range of measures “appropriate to the economic situation.” Though the provision exemplifies such measures as particularly pertaining to situations where “severe difficulties arise in the supply of certain products, notably in the area of energy,” it in no way limits the adoption of acts to this context alone. On the other hand, Article 122(2) TFEU allows the Council, also on the proposal of the Commission, to grant Union financial assistance to a Member State that is “in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control.” Measures adopted under both legal bases are adopted by a qualified majority.Footnote 37
The broad scope of Article 122 TFEU has allowed the two legal bases contained therein to play a significant role in almost all the recent crises and has “proved to be the “emergency clause” par excellence of the Treaties.”Footnote 38 It has been used to adopt a broad range of acts: the European Financial Stabilisation Mechanism (EFSM)Footnote 39 as an early response to the sovereign debt crisis in 2010; the SURE Regulation,Footnote 40 which was one of the early response to the Covid-19 crisis that mitigated unemployment risks during the pandemic; the EURI Regulation,Footnote 41 which constitutes the backbone of the NextGenerationEU framework; a range of measures adopted in the immediate aftermath of the invasion of Ukraine to reduce the Union’s dependency on Russian gasFootnote 42 and stabilise energy prices;Footnote 43 as well as the recent Security Action for Europe (SAFE) defence loan instrument,Footnote 44 providing financial support for urgent investments in the European defence industry.
Another crisis legal basis that allows the EU to act in different crises is found in Article 196 TFEU – the first of the three more prospective and preventative legal bases. It foresees the adoption of measures through the ordinary legislative procedure that help “improve the effectiveness of systems for preventing and protecting against natural or man-made disasters.” Compared to Article 122 TFEU, this is a considerably less far-reaching legal basis, since it is an expression of an EU’s supporting competence in the field of civil protection, as provided by Article 6 TFEU. In line with this, Article 196 TFEU aims to support and complement Member State actions, and it expressly excludes any harmonisation of laws of the Member States. It has been used as the basis for the establishment of the EU Civil Protection MechanismFootnote 45 which aims to “support, complement, and facilitate the coordination of Member States’ actions in the field of civil protection,”Footnote 46 as well as for the recent Commission’s proposal to consolidate and reform the legal framework governing the EU Civil Protection Mechanism.Footnote 47
Perhaps the most general legal basis with a broad scope of application that forms part of the EU crisis law architecture and allows the EU to adopt extraordinary measures is the flexibility clause in Article 352 TFEU. It allows the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the Parliament, to adopt measures in areas “where no other provision of the Treaty gives the [EU] institutions the necessary power to adopt the measure in question,”Footnote 48 but only if such a measure is “necessary to enable the [EU] to carry out its functions with a view to attaining one of the objectives laid down by the Treaty.”Footnote 49 Though the scope of the clause is therefore not unlimited, it significantly broadens the fields where the EU is allowed to act. Precisely because of its “ability to adjust to arising political needs,”Footnote 50 the flexibility clause was used to significantly expand the facility providing medium-term financial assistance for Member States’ balances of payments as a response to the financial crisis,Footnote 51 as well as to adopt the urgent changes to the 2020 budget as a response to Brexit.Footnote 52 Despite the “fall of the clause”Footnote 53 since the Lisbon Treaty as only about a dozen acts were adopted on this legal basis, the clause remains a dormant legal basis that can be employed in future crises not foreseen by other Treaty legal bases.
Beyond the legal bases of Articles 122, 196, and 352 TFEU that are general in scope, the Treaties also contain legal bases allowing the EU to act in crises in specific policy areas. For instance, Article 78(3) TFEU empowers the Council, on a proposal of the Commission and after consulting the Parliament, to adopt provisional measures if a Member State is “confronted by an emergency situation characterised by a sudden inflow of nationals of third countries.” This allowed the Council to adopt two decisions which established the unsuccessful relocation mechanism during the 2015 refugee crisis.Footnote 54 In close association, Articles 78(2)(c) and 78(2)(g) TFEU (ex Articles 63(2)(a) and 63(2)(b) TEC), containing the second legal basis with a more prospective outlook, allow for the adoption of “a common system of temporary protection for displaced persons in the event of a massive inflow.” This legal basis was used to adopt the Temporary Protection Directive,Footnote 55 which allows the Council, on the proposal of the Commission, to activate the temporary protection mechanism acting by qualified majority. The mechanism was recently activatedFootnote 56 and extendedFootnote 57 as a response to the mass displacement of Ukrainian refugees.
Additionally, in the field of public health, Article 168(5) TFEU – the final of the three prospective legal bases – foresees the adoption, through ordinary legislative procedure, of measures to “combat the major cross-border health scourges, measures concerning monitoring, early warning of and combating serious cross-border threats to health.” The importance of this legal basis was revealed by the Covid-19 pandemic, after which it was used to adopt a normative framework which will allow the Commission to recognise a public health emergency at the Union level in the case of future pandemics.Footnote 58 This will in turn allow the Council, on the proposal of the Commission, to activate the emergency framework and dive into the toolbox foreseen by Council Regulation (EU) 2022/2372 to respond to a public health emergency.Footnote 59
In the field of financial assistance to third countries, Article 213 TFEU provides the emergency legal basis for the Council to adopt the necessary measures when a “third country requires urgent financial assistance.” Despite this emergency option, all the recent exceptional and emergency macro-financial assistance (MFA) to Ukraine was adopted on the “ordinary” legal basis for MFA in Article 212 TFEU, through the ordinary legislative procedure.Footnote 60 It should be noted that although the emergency legal basis in Article 213 TFEU is framed as a shall-clause, the adoption of measures pursuant to it remains a matter of exceedingly wide political discretion. Consequently, it would be inaccurate to typologise this measure as a measure that must be triggered by the EU, unlike the measures adopted under Article 143 TFEU discussed below, where the discretion afforded to EU institutions is more limited.
The last legal basis allowing for measures to be adopted by the EU can be found in the never-yet invoked Article 66 TFEU.Footnote 61 Subject to the principle of proportionality, it empowers the Council to adopt, in exceptional circumstances, temporary safeguard measures against third countries when movements of capital cause, or might cause, serious difficulties for the operation of the economic and monetary union.
Finally, though not a legal basis, activating passerelle clauses in the Treaties is another extraordinary measure the EU may adopt in a crisis and would allow for more flexible decision-making in the Council, shifting the decision-making from unanimity to qualified majority, wherever applicable. To that end, the European Council could activate the general passerelle clause in Article 48(7) TEU, or, less ambitiously, the specific passerelle clauses in the field of common foreign and security policy (CFSP) (Article 31(3) TEU) or regarding the multiannual financial framework (Article 312(2) TFEU). Additionally, the Council could activate the specific passerelle clauses in the fields of social policy (Article 153(2) TFEU), environmental measures (Article 192(2) TFEU), and family law (Article 81(3) TFEU).
b. Measures that must be triggered by the EU
The main area where the Union is required to act in crises is defined in the solidarity clause in Article 222 TFEU. In particular, Article 222(1) TFEU requires the Union to act in a spirit of solidarity, jointly with the Member States, if a Member State “is the object of a terrorist attack or the victim of a natural or man-made disaster” by mobilising “all the instruments at its disposal.” To precisely define the implementation of this obligation, Article 222(3) TFEU foresees the adoption of a Council decision, which was last adopted in 2014.Footnote 62 It allows any Member State to invoke the solidarity clause if its response capabilities are clearly overwhelmed by a crisis. The invocation of the solidarity clause by a Member State automatically activates the EU Integrated Political Crisis Response (IPCR) Arrangements.Footnote 63 Response arrangements after the invocation of the solidarity clause are largely at the hands of the executive – the Commission and the High Representative of the Union for Foreign Affairs and Security Policy for operative hands-on tasks, and the Council to define the “political and strategic direction of the Union response” and decide on specific proposals made by the Commission and the High Representative.Footnote 64
In addition to the solidarity clause, Article 143 TFEU requires to Union to respond when a Member State outside the Eurozone is “in difficulties or is seriously threatened with difficulties as regards its balance of payments” and such difficulties may “jeopardise the functioning of the internal market or the implementation of the common commercial policy.” In this crisis scenario, the Commission is required to investigate the situation and make recommendations to the Member State in difficulty regarding the measures it should adopt. If these measures fail to remedy the difficulties, the Commission must recommend the Council to activate the medium-term financial assistance facility,Footnote 65 which is what happened during the financial crisis with regard to Hungary, Latvia and Romania.Footnote 66 If the Council refuses to activate the financial assistance facility, Article 143(3) TFEU contains a conditional escape clause that allows the Member State in difficulty to adopt protective measures after having received an authorisation from the Commission.
2. International models of crisis accommodation
a. Measures that may be triggered by the Member States
Two of the defining elements of international models of crisis accommodation are regimes of derogations and escape clauses, allowing for temporary derogations from international obligations, and limitation clauses, allowing for limitations of fundamental rights and freedoms. To different degrees, these can be found in the provisions of the Treaties and EU secondary law. General escape clauses in primary law, in particular Articles 346 and 347 TFEU, allow Member States to adopt the necessary measures in the event of, among others, serious internal disturbance, war, or threat of war (Article 347 TFEU), or for the protection of the essential security interests connected with the production of war material (Article 346 TFEU). In addition, the general escape clause applicable in AFSJ provides that the AFSJ provisions do not affect the responsibilities of the Member States regarding the maintenance of law and the safeguarding of internal security (Article 72 TFEU). Finally, Article 144(1) TFEU allows Member States outside the Eurozone to take any protective measures “where a sudden crisis in the balance of payments occurs,” even without the prior authorisation by the Commission required under the standard procedure in Article 143(3) TFEU.
Escape clauses can also be found in many secondary law acts. For instance, the Schengen Code contains multiple escape clauses that allow for a temporary reintroduction of border controls at the internal borders when there is “a serious threat to public policy or internal security in a Member State.”Footnote 67 This set of provisions has been the subject of significant controversyFootnote 68 due to continuous attempts by many Member States, perhaps above all by Austria, to reintroduce border controls due to alleged security concerns stemming from migration, the instability in the Middle East, Russia’s war of aggression in Ukraine, and Covid-19, among other cited reasons.
In addition to these escape clauses, Treaties also contain limitations clauses in the field of fundamental freedoms. They allow for derogations from the prohibition on quantitative restrictions on imports and exports and measures having equivalent effect for different public policy concerns (Article 36 TFEU), for limitations to free movement of workers (Article 45 TFEU) and freedom of establishment (Article 52 TFEU) for reasons of public policy, public security or public health, as well as for limitations to free movement of capital for reasons of public policy or public security (Article 65 TFEU). A similar general limitation clause can be found in Article 52 of the EU Charter of Fundamental Rights, allowing for limitations of fundamental rights for reasons in the general interest.
While most of the escape and limitation clauses are of course not conceived exclusively as crisis measures, Member States can utilise them, and have utilised them, to better respond to different crises. Indeed, though these clauses are generally applicable, they become especially pertinent in times of crises, as they allow for more flexibility in conceiving an effective crisis response.
b. Measures that must be triggered by the Member States
In addition to obliging the Union to solidarity with the Member States,Footnote 69 the solidarity clause in Article 222 TFEU also contains an obligation of mutual assistance between the Member States. Like the obligation of the Union, the obligation of the Member States in Article 222(2) also applies when a Member State is the object of a terrorist attack, or the victim of a natural or man-made disaster. The Member States are required to assist the troubled Member State at the request of its political authorities. In contrast to the obligation of the Union and its operationalisation through secondary law, however, the obligation of mutual assistance of the Member States is considerably less extensive than the obligation of solidarity of the EU towards Member States in Article 222(1) TFEU. It is less regulated as well; the margin of discretion afforded to Member States on how to implement the obligation of mutual assistance is exceedingly broad. The Declaration (No 37) on Article 222 TFEU is explicit in that Article 222 TFEU does not affect the “right of another Member State to choose the most appropriate means to comply with its own solidarity obligation towards that Member State.”Footnote 70
Related to the obligation of mutual assistance in Article 222(2) TFEU is the so-called mutual defence clause of Article 42(7) TEU. It imposes upon the Member States the obligation of aid and assistance by all means in their power if a Member State is a victim of armed aggression on its territory. For Member States that are also members of NATO, the Treaty expressly defers to their commitments made under NATO as foundational of their collective defence and implementation of the mutual defence clause. Though this obligation is legally binding on the Member States, it is not justiciable since the CJEU does not have jurisdiction (with some exceptions) in CFSP.Footnote 71
3. Hybrid models of crisis accommodation
a. Measures that may be triggered by the EU to allow Member State action
In some areas of EU crisis law, Member States are not free to act without a prior authorisation from the EU. One such area was already mentioned above, where a Member State in difficulty regarding its balance of payments may adopt protective measures after having received an authorisation from the Commission (Article 143(3) TFEU).
However, the most often used area of EU crisis law where the capacity of Member States to act is contingent on prior authorisation by the Union is EU state aid law. In particular, the Commission may enable the adoption of crisis measures by the Member States in multiple ways. First, by passing the General Block Exemption Regulation (GBER),Footnote 72 which is an executive act based on Article 108(4) TFEU, the Commission has determined certain types of state aid as in abstracto compatible with the internal market and exempted them from the notification requirement that is generally in place. Particularly relevant for crisis management are provisions of GBER covering aid for environmental protectionFootnote 73 and aid to remedy the damage caused by natural disasters.Footnote 74 Second, for state aid not covered by GBER, the Commission must declare as compatible with the internal market any aid “to make good the damage caused by natural disasters or exceptional occurrences” pursuant to Article 107(2)(b) TFEU. In responding to the economic fallout of Covid-19, for instance, many Member States granted aid to undertakings such as airline carriers for the losses incurred during lockdowns. When declaring such aid compatible with the internal market, the Commission relied on precisely this exemption provided by Article 107(2)(b) TFEU.Footnote 75 Finally, pursuant to Article 107(3) TFEU, the Commission may, at its discretion, declare certain types of aid compatible with the internal market. Relevant to EU crisis law are points (b) and (c) of Article 107(3) TFEU, allowing the Commission to approve aid “to remedy a serious disturbance in the economy of a Member State” and aid “to facilitate the development of certain economic activities or of certain economic areas.” The Commission has utilised these provisions widely and thus demonstrated its flexibility in the application of state aid law during many recent crises, including the financial crisis,Footnote 76 the Covid-19 crisis,Footnote 77 and the climate crisis.Footnote 78
b. Measures that may be triggered by the Member States to allow EU action
The principal measure falling within this category of EU crisis law architecture is the concept of enhanced cooperation,Footnote 79 which may be triggered by at least nine Member States by addressing a request to the Commission to deepen their integration beyond the general EU law acquis, using the Union’s institutions. In turn, the Commission may submit a proposal to the Council to grant the authorisation to proceed with enhanced cooperation after obtaining the consent of the Parliament.Footnote 80 Since enhanced cooperation must respect several limits, it is not a do-all, fix-all approach. Amongst other limitations, enhanced cooperation must only be established in areas of the Union’s non-exclusive competencies,Footnote 81 it must aim to further the objectives of the Union,Footnote 82 and must comply with the Treaties and Union law, i.e., the general EU law acquis.Footnote 83
Because of these limitations, enhanced cooperation can only have a specific role in the broader picture of EU crisis law. It cannot be construed as a way of expanding the competencies and the scope of EU law, thus allowing EU action in areas beyond EU’s non-exclusive competence. Instead, it must be understood as a way of overcoming political blockage by veto actors in fields where Council adopts decisions by unanimity (although, mathematically, enhanced cooperation is possible also in areas where QMV is used in the Council).Footnote 84 This is exemplified by the enhanced cooperation on unitary patent protection, which was conceived precisely to bypass the inability by the Council to find the unanimity required in Article 118 TFEU to adopt the necessary acts.Footnote 85 Though enhanced cooperation has never been used to respond to a crisis, it can be conceived as an alternative to using the flexibility clause whenever unanimity required to trigger the clause cannot be secured.
A specific mechanism similar and complementary to enhanced cooperation that has been used in a more crisis-related context is foreseen in Article 42(6) TEU. It allows for the creation of a “permanent structured cooperation within the Union framework” between the Member States “whose military capabilities fulfil higher criteria.” On this legal basis, the permanent structured cooperation (PESCO) was established in 2017Footnote 86 and has since expanded to include all Member States except Malta. In the context of the deteriorating security crisis, PESCO has created an important avenue to consolidate the Union’s crisis response to the escalation of security threats in the recent years.
4. Exceptional models of crisis accommodation
The adoption of intergovernmental measures (entirely or partly) outside the framework of EU law is an important element of EU crisis law that can become particularly relevant when neither the use of the flexibility clause nor enhanced cooperation are possible. If enhanced cooperation can solve the absence of unanimity in adoption of crisis measures, the adoption of intergovernmental measures can solve the absence of a Union competence in a particular area.Footnote 87 Its necessity in tackling crises is fundamentally dictated by the principle of conferral – if the Union does not have the competence in a certain area, or if there is no appropriate legal basis for the Union to adopt (legislative or non-legislative) acts that respond to a crisis, there is nothing the Union, nor the Member States within the Union’s architecture, can do. Resorting to intergovernmental measures is what Member States are left with to devise a coherent and coordinated crisis response.
The adoption of intergovernmental measures was perhaps the defining feature of the response to the financial and Euro crisis in the 2010s. Beginning with the European Financial Stability Facility (EFSF), established under Luxembourgish law based on a decision reached in the Council by the Member States of the Eurozone,Footnote 88 the Member States sought to provide financial assistance, loans and guarantees to the afflicted Member States outside the limits imposed on them by the Treaties.Footnote 89 The EFSF, intended as a temporary facility, was soon superseded and expanded by the still operational European Stability Mechanism (ESM), which was established through an international treaty – the Treaty Establishing the ESM – and uses EU institutions, the Commission, the ECB, and the Court of Justice in particular, in its administration.Footnote 90 Additionally, to allow for the conclusion of the ESM Treaty by the Eurozone Member States, Article 136 TFEU had to be amended beforehand to prepare the constitutional groundwork for the establishment of a permanent stability mechanism.Footnote 91 Finally, this crisis framework was complemented by yet another international treaty, colloquially known as the Fiscal Compact,Footnote 92 which was adopted as an international treaty to side-step a potential veto by the UK.Footnote 93
Exceptional models of crisis accommodation also made an appearance during the refugee crisis in the form of the enigmatic EU-Turkey Statement of 2016. The “statement” aimed to curb the inflow of asylum seekers and migrants and to expedite their return to Turkey through an “instrument” that was only ever communicated in a press release.Footnote 94 This made it entirely unclear whether an international agreement was concluded, whether such an agreement was binding, and whether it was the EU or the Member States that concluded it.Footnote 95 Such exceptional responses to the financial and migration crisis show both the potential and the perils of resorting to extraordinary measures, and the true exceptionality of employing them as the last resort. The close legal and institutional entanglement with EU law of all the mentioned intergovernmental measures – and indeed the often-accompanying controversy surrounding their legal nature that has often been resolved by the Court of Justice – demonstrates and explains why these measures have traditionally been considered as forming part of EU crisis law, rather than being treated as something separate entirely due to their partly intergovernmental nature.Footnote 96
5. Legislative models of crisis accommodation
The image of EU crisis law would be incomplete without an understanding of how the EU legal practice has embraced the legislative model of emergency powers and crisis regulation.Footnote 97 Commentators have noticed “the close relationship between emergency measures and ordinary law-making”Footnote 98 that has caused a shift in the EU model of crisis regulation “from a Treaty-based to a legislative one.”Footnote 99 This shift has resulted in the acceptance of standard legislative models of emergency powers which delegate emergency powers to the executive through statutes rather than constitutional states of emergency or emergency procedures,Footnote 100 as well as in the development of a sui generis EU-flavoured legislative model of accommodation, where crisis regulation is entirely integrated into ordinary legislative regimes.
The adoption of legislative models of accommodation reflects that the EU legislature has caught up with the haphazard framework enshrined in the Treaties and began more forcefully regulating crises through secondary law passed under non-crisis related legal bases, that is legal bases that are generally applicable, not only in crisis situations. Particularly important for this purpose are the internal market legal basis in Article 114 TFEU and the industrial policy legal basis in Article 173(3) TFEU. A wide range of acts has been adopted on the basis of the former, for instance the NIS2 Directive, establishing the European cyber crisis liaison organisation network (EU-CyCLONe),Footnote 101 or the Internal Market Emergency and Resilience Act (IMERA),Footnote 102 which aims to protect the functioning of the internal market in crises through establishing emergency frameworks and governing structures. As for the industrial policy legal basis in Article 173(3) TFEU, it was used, for instance, for the adoption of the EDIRPA instrument,Footnote 103 which responded to the invasion of Ukraine by reinforcing the European defence industry through common procurement, as well as for the establishment of the European Defence Fund that aims to respond to the security challenges in the new geopolitical context.Footnote 104 Both legal bases were combined recently to adopt the Chips Act, aiming to stabilise the trade and supply of semiconductors and establish a framework for crisis monitoring and response during a “semiconductor crisis.”Footnote 105
Beyond the internal market and industrial policy legal bases, some of the early responses to the Covid-19 pandemic,Footnote 106 the establishment of the Recovery and Resilience FacilityFootnote 107 as the central element of the NextGenerationEU recovery package and its amendments that responded to Russia’s invasion of Ukraine,Footnote 108 as well as other associated instruments, including the Rule of Law Conditionality Regulation,Footnote 109 demonstrate the immense combined potential of the cohesion policy legal bases (Articles 175(3), 177 and 178 TFEU) and the financial and budgetary legal bases (Articles 311(3),Footnote 110 312,Footnote 111 and 322(1) TFEU) as mechanisms of crisis regulation across a broad spectrum of different crises – health, economic, security and rule of law crises.
Other “ordinary” legal bases on which crisis measures have been adopted include Articles 78(2)(d) and (e) TFEU in the field of asylum and migration, providing the basis for the adoption of the so-called Crisis Regulation, which aims to “enhance the preparedness and resilience of the Union to manage situations of crisis and to facilitate operational coordination, capacity support and the availability of funding in situations of crisis.”Footnote 112 Another example is the establishment of the EU Digital Covid Certificate, executed through two related regulations based on Article 21(2) TFEU and Article 77(2)(c) TFEU, both pertaining to freedom of movement of EU citizens and third-country nationals, respectively.Footnote 113 Additionally, a considerable part of the Union’s broad response to the energy crisis was executed by introducing legislation under “ordinary” legal basis,Footnote 114 as was the case with the adoption of sanctions packages against Russia based on Article 215 TFEU and other complementary measures adopted on other non-legislative CFSP legal basis.Footnote 115
Beyond adopting acts of secondary law whose raison d’être is crisis-regulation through non-crisis specific legal bases, the Union legislature also regularly includes emergency clauses and frameworks in acts whose telos is not crisis-orientated, nor are they passed on a crisis-related legal basis. In this way, “ordinary Union policies have been redesigned as crisis instruments,”Footnote 116 sometimes as responsive instruments devised during a crisis, and sometimes as dormant frameworks set in place to be activated during a future crisis. This latter approach can be observed with the “exceptional need” regime in the Data Act, which grants a broader access to data to public sector and Union bodies when responding to “public emergencies.”Footnote 117 Similarly, in the early stages of the Covid-19 crisis, the Commission passed the Implementing Regulation (EU) 2020/402,Footnote 118 introducing an authorisation regime for exports of protective equipment in an attempt to ensure sufficient stocks of protective equipment in the Member States. The Commission passed this implementing act based on the conferral in Regulation 2015/479 on common rules for exports, which allows for the introduction of authorisation regimes “in cases of urgency” or “in order to prevent a critical situation from arising.”Footnote 119
The combination of legislative models of crisis accommodation, together with different emanations of extraordinary, hybrid, international and constitutional models paints an increasingly complex picture of the contours of EU crisis law. It also offers an indication of what EU crisis law could be, how it might develop in the future, and what options it gives to the Union and the Member States in dealing with the complex crises that might befall the Union in the future.
V. Beyond the contours
But beyond this outline of the contours of EU crisis law, the special issue responds to the plethora of calls for a “systematic study” of the existing “sui generis EU emergency constitution”Footnote 120 that would result in more comparative and cross-cutting scholarship, “such that we can build a more comprehensive picture of EU crisis law.Footnote 121 What all the contributions in this special issue aim to do, therefore, is to contribute to building and developing a meta-narrative of EU crisis law that transcends the focus on the specificities of any individual crisis. As a part of this broader endeavour, the contributions also provide a broader reflection on the overall crisis-readiness of the EU legal architecture. With a view to the opposing views of the Parliament and many Member States on how crisis-proof the existing constitutional framework is, this special issue can also fruitfully contribute to those debates by providing a better understanding of the constitutional resilience of the EU – the ability of its current constitutional bargain to adapt to future crises that might bring inherent existential risks for the Union.
To build such a robust notion of EU crisis law, the contributions in this special issue provide answers to several inter-related issues. Building on this introduction, Guido Bellenghi takes on the challenge of conceptualising the notion of an “emergency” and its relation to “normalcy” in EU law, disentangling the former from the broader notion of a crisis. Establishing this distinction, though often overlooked, is essential for a more rounded understanding of emergency and crisis law and for laying the groundwork for a more focused debate on these inter-related concepts. Though Bellenghi achieves both by examining the extent to which the commonalities in European legal systems’ understanding of the notion of an emergency can inform a unified conceptualisation of an emergency under EU law, the result is not encouraging: although many domestic constitutional emergency frameworks converge definitionally, the diversity of emergency clauses in the Treaties makes it difficult to take that convergence and translate it into a single definition of an emergency under EU law.
Another cross-cutting issue of EU crisis law explored by the contributions is whether general principles of EU crisis law can be established, and what these mean for law-making in times of crisis. Some principles that can also be considered as principles of EU crisis law are expressly included in the Treaties, while some have been developed by the CJEU. These include principles of solidarity, proportionality, conferral, subsidiarity, or of legal certainty and legitimate expectations.Footnote 122 Thomas Verellen, in his contribution, operates with two seemingly contradictory principles: democracy and effectiveness. Verellen studies these classically competing principles in crisis law and examines the extent to which effective decision-making and democratic control can co-exist through a study of unilateral trade policy instruments, which have witnessed a burgeoning during the Covid-19 crisis and especially in the new geopolitical reality. Although the Commission may, for the most part, pass such instrument without parliamentary oversight, Verellen shows that there are possibilities for the coexistence of parliamentary scrutiny and effective decision-making even without Treaty change. His analysis of unilateral trade measures is not relevant only for EU trade policy but can be used as a more general road map towards greater participation of the Parliament in the adoption of crisis measures.
In close relation to identifying the principles of EU crisis law and studying their effects, Darren Harvey and Miriam Schuler explore the role the Union’s values defined in Article 2 TEU may have on EU crisis law. Their contribution adds importantly to the literature exploring how we can construct the existing legal bases in the Treaties to make them better suited for addressing diverse crisis situations.Footnote 123 This might include studying the limits of evolutive interpretation of Treaties through reinforced (meta)teleology,Footnote 124 or perhaps the ways in which Treaty provisions could be constructed through the lens of positive and negative obligations. It is in this latter sense that Harvey and Schuler build on the non-regression principle established by the CJEU in Repubblika Footnote 125 to explore whether reading a positive obligation to take preventative action to safeguard Union’s founding values into Article 2 TEU would be possible and, if so, whether such a positive obligation could be effectively enforced to prevent a broad scope of “constitutional crises” from arising, including the rule of law crisis. Their conclusion is in the affirmative: by resorting to the infringement proceedings in Article 258 TFEU, the Commission should respect its role as the guardian of the Treaties and thus ensure that potential future constitutional crises are addressed at an earlier stage, before they could cause irreparable damage to the foundational values of the Union.
Finally, a holistic conception of EU crisis law must also explore the extent to which the existing constitutional framework allows for different actors to adapt their functioning to the crisis context. Beyond activating passerelle clauses that would allow for more flexible decision-making procedure in the Council,Footnote 126 the Parliament also has some options at its disposal. Thomas Verellen, in his contribution, discusses four options that would enhance Parliament’s involvement in the adoption of crisis measures and its democratic ex post oversight once crisis measures had already been adopted. On top of those, an additional mechanism regarding measures adopted under Article 122 TFEU has been included in Rule 138 of the Rules of Procedure of the European Parliament, allowing for both political and budgetary parliamentary scrutiny of such measures.Footnote 127 Additionally, Rule 170 of the Rules of Procedure allows for considerably faster decision-making under the urgent procedure when this is required by “unforeseen developments.”Footnote 128 And finally, the recent practice of adopting crisis measures through complex policy packages has allowed the Parliament to leverage its role beyond its formal competencies and has given it a voice in the adoption of measures over which it normally would have no democratic control.Footnote 129
It is not only the Parliament, however, that can adapt its functioning in the context of a crisis. In her contribution, Eftychia Constantinou distils the principles that underpin the CJEU’s crisis-related case law, exploring the procedural avenues available to it to adapt its decision-making processes when deciding on crisis measures. In doing so, her contribution empirically establishes the characteristics of the Court’s response to four crises: the Eurozone crisis, the migration crisis, Brexit, and the Covid-19 crisis. Constantinou thus offers a broader (meta)narrative of the CJEU’s decision-making approach in adjudicating crisis measures, analysing the procedural features of cases, the legal reasoning of the Court, and the timing of the delivery of the judgment. In drawing attention to patterns, differences and commonalities in the Court’s adjudication of highly politicised and salient topics during the four crises, Constantinou demonstrates that the Court in deciding crisis-related cases applies the expedited procedure when the political circumstances of the case so require, tends to decide in larger judicial formations, resorts to abundant references to settled case-law in its reasoning, conducts a context-sensitive balancing exercise, and tends to deliver its judgment at a politically relevant time.
These four contributions, together with this introductory paper, are the products of a collaborative effort that kicked off at the 7th Young European Law Scholars (YELS) conference which took place in June 2024 at University of Ljubljana, Faculty of Law. The convenors of the conference, and the editors of this special issue, would like to thank all the speakers, commentators, chairs and participants at the 2024 YELS conference who contributed to the fruitful discussions that made this special issue possible. We would also like to thank the authors in this special issue for their admirable responsiveness and willingness to contribute to this common endeavour. We hope that time will show that their papers will not only have contributed to this special issue but will have made significant contributions to the literature more broadly and will have helped jumpstart the scholarly exploration of the concept of EU crisis law.
Acknowledgments
I would like to thank Samo Bardutzky and Marjan Kos for their helpful comments on the paper and Ana Mencin for her valuable research assistance.
Competing interests
The author has no conflicts of interest to declare.
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