I. Introduction
Within the EU legal discourse, emergency law has recently taken centre stage, prompting scholars to focus on the legality of EU responses to past emergencies and their impact on the EU institutional architecture.Footnote 1 These analyses have been coupled with reflections on the perspective of constitutional change,Footnote 2 concerning in particular the desirability of assigning a general emergency competence to the EU.Footnote 3 In this context, the European Parliament has even proposed the introduction in the Treaties of a state of emergency clause that would allow the Parliament and the Council to declare the existence of an “emergency” and grant “extraordinary powers” to the European Commission.Footnote 4
Given that emergency law is meant to be used within emergency scenarios, the constitutional legitimacy of its application depends crucially on how the factual features qualifying a scenario of reality as an emergency are defined under EU law. For recourse to emergency law in the absence of an emergency would threaten key values of the EU such as democracy and the rule of law.Footnote 5 However, whilst the EU Treaties envisage a number of clauses that can be triggered when certain societal interests are under threat, those clauses do not include a univocal definition of emergency and exhibit instead a variegated terminological landscape. The question thus arises as to whether, across such a variegated landscape, the current EU constitutional framework may nonetheless accommodate one conceptually coherent definition of emergency so as to enhance the certainty and consistency of EU law.
Due to the typically unpredictable nature of emergencies, emergency law requires flexibility. EU emergency law is no exception: although the EU Treaties, as a constitutional text, are “very long and sometimes extremely detailed,”Footnote 6 emergency clauses are formulated in broad terms. It is within this broad terminological framework that EU lawyers strive to detect patterns and logical structures. Indeed, in the words of Baquero Cruz,
[t]he very attempt to study the gaps of a certain branch of the law presupposes the need for a rationally ordered and comprehensive legal system. To the extent that the law is not so ordered, one is forced to analyse the existing legal materials in search for an underlying logic.Footnote 7
Finding an underlying logic across Treaty emergency clauses would entail conceptualising them as a coherent system of norms – an emergency constitution Footnote 8 – rather than simply a collection of individual and discrete rules. This would bring constitutional added value in that it would allow to complement broad and imprecise provisions by means of systematic interpretation and a contrario, ad absurdum, a fortiori, by analogy, or comparative argumentation,Footnote 9 discover horizontal principles of EU emergency law, and ultimately enhance the clarity, certainty and consistency of EU law.Footnote 10
This article normatively argues that the notion of emergency should be provided with genuine legal meaning, by defining what factual features qualify a scenario of reality as an emergency from an EU law perspective. It shows that this requires distinguishing emergency from normalcy and disentangling it from the broader notion of crisis (Section II). In the absence of one general definition of emergency in the EU Treaties, the contribution analyses how the notion of emergency, as opposed to normalcy and crisis, is defined across European constitutional law, considering examples provided by EU Member States’ laws and Article 15 ECHR (Section III). The analysis of these legal frameworks serves to illustrate patterns amongst European definitions of emergency and assess the extent to which these are reflected in EU constitutional law. Based on this assessment, the article argues that the current Treaty framework is not informed by a sufficiently coherent horizontal definition of emergency that could provide this notion with genuine legal meaning under EU law (Section IV). It concludes that the absence of a definition of emergency within EU constitutional law exposes the EU legal order to risks associated with legal uncertainty and “crisification” (Section V).
II. The need for a definition of emergency and the twofold challenge associated therewith
The interaction between law and emergency is a fundamental issue of modern constitutional theory and cannot be ignored by any legal order based on the rule of law. As Böckenförde explains,Footnote 11 the interrelationship with social reality is a constituent element of the law. The law incorporates social reality into norms, that only carry normative force to the extent that they reflect social reality’s normal state of affairs. In a somewhat circular mechanism, legal norms, when accepted and interiorised by society, contribute to defining the normalcy of a certain state of affairs. It is within this context of normalcy that, through legal norms, public authorities are entrusted with the powers that society considers appropriate to fulfil certain tasks. The appropriateness of those powers depends thus on the preservation of the normal state of affairs resulting from the mutual interaction between norm and reality. When society is fundamentally threatened by an emergency situation, such an interaction may be disrupted so that normal powers no longer allow public authorities to fulfil their tasks. Assuming that a society built around the rule of law rejects the unregulated and arbitrary exercise of public authority,Footnote 12 the legal order must adjust the powers of public authorities in case of emergency.Footnote 13 In other words, a legal order which, like the EU, is based on the rule of law cannot decide on whether to engage with emergencies, since such an engagement is in any case necessary, but must reflect on how to do so.Footnote 14 The way in which a legal order engages with emergencies can be conceptualised as “emergency law.”
From a constitutional perspective, emergency law serves the purpose of endowing public authorities with the powers to respond to emergencies whilst establishing safeguards to prevent the abuse of such powers.Footnote 15 To do so, emergency law must define, first, what constitutes an emergency, and second, how an emergency is handled by the legal order once it manifests itself. The focus of this article is placed on the first of these two tasks of emergency law.
In its Report on the Respect for Democracy, Human Rights and the Rule of Law during States of Emergency, the Venice Commission observed that the only legitimate ground for the exercise of emergency powers is the occurrence of an emergency.Footnote 16 This means that the scope of any emergency law depends on how emergency is defined within a given legal order. Indeed, the Venice Commission itself has indicated that “[t]he emergency situations capable of giving rise to the declaration of states of emergency should clearly be defined and delimited by the constitution.”Footnote 17
In this respect, it is often argued that the notion of emergency cannot be legally defined due to the inherently unpredictable character of emergencies.Footnote 18 This is, however, not a convincing argument. In fact, such a reasoning suggests that unpredictability may be part of a potential definition of emergency, rather than excluding the possibility of defining it. After all, dealing with unpredictable circumstances is not a special feature of emergency law, but rather a typical feature of any law. As Irti puts it, every legal case is, to an extent, an unpredictable event. The very aim of the law is, thus, to “master the unpredictable” and “conquer the future.”Footnote 19 Therefore, the inherent unpredictability of emergencies does not per se hinder a legal definition of emergency.
Defining emergency from a legal perspective poses however a double challenge, in that the notion of emergency requires to be distinguished from “normalcy” and disentangled from “crisis.” Firstly, part of legal literature maintains that it is not possible to distinguish emergency from normalcy.Footnote 20 This view is based on the empirical observation that there is a global tendency towards lowering the threshold-conditions required to invoke emergency powers. According to those adhering to this position, such a tendency has blurred the divide between emergency and normalcy to the point that the law has entered a permanent state of emergency and emergency action has become the ordinary mode of governance.Footnote 21 In turn, assuming that emergency can be distinguished from normalcy would be a misconception.Footnote 22 The argumentation outlined so far is not persuasive. In fact, if the threshold to invoke emergency powers has been progressively lowered, this arguably calls for a clearer theoretical distinction between emergency and normalcy.Footnote 23 Although declaring the existence of an emergency is an exercise subject to a degree of relativism, in that decision-makers are unavoidably influenced by subjective factors, the factual existence of an emergency remains an objective question.Footnote 24 The answer to this question depends on whether the criteria established by the law for recourse to emergency powers are met. The more precise and reviewable these criteria are, the better constitutional law can fulfil its role of imposing constraints and effective checks on the exercise of emergency powers, preserving the centrality of the rule of law and democracy.Footnote 25 Recognising the objective dimension of emergency allows to refuse the sceptic view that no demarcation line can be drawn or, to put it in Schmittian terms, that the dictator must be attributed the epistemic authority to discretionally declare the exception.Footnote 26 In essence, permanent states of emergency do not rule out the dichotomy normalcy–emergency, but rather reinforce the conviction that clearer and reviewable demarcation lines must be drawn.Footnote 27 This also applies to EU law. For instance, recent allegations concerning the instauration of a permanent state of emergency in the EU following the COVID-19 pandemicFootnote 28 have been arguably favoured by the EU’s reliance on the cryptic and ambiguously worded Article 122 TFEU.Footnote 29 Similarly, the “ill defined”Footnote 30 scope of application of Article 107(3)(b) TFEU, exceptionally allowing State aid in the event of “a serious economic disturbance,” has been criticised for granting the Commission excessively broad discretion.Footnote 31
The second definitional challenge consists of disentangling emergency from the broader notion of crisis. Both these terms refer to threats to fundamental societal interests. Yet, first, emergency is a narrower concept than crisis, in that it typically encompasses only “fast-burning” threats, understood as sudden and abrupt shocks that require immediate action. Conversely, the notion of “crisis” also covers “slow-burning” threats, that are gradual and creeping.Footnote 32 Second, not only is crisis a broader concept than emergency, but it also carries a strong subjective component.Footnote 33 Looking at the etymology, one finds that “crisis” derives from the Greek κρίνω, meaning to choose or decide. This suggests that the concept of crisis involves perception and framing, as it considers the threat from the perspective of the subject who makes decisions to handle it. Conversely, “emergency” finds its roots in the Latin emergĕre, indicating the threat’s appearing or coming forth. The subjective element is thus missing in the notion of emergency, which refers to the factual occurrence of a threat. The difference between emergency and crisis is therefore terminological but also conceptual, and should have legal implications.Footnote 34 Since emergency powers represent the exception, the grounds to invoke them should be construed narrowly and objectively. And the notion of emergency is arguably better-suited than the notion of crisis to carry precise legal meaning.Footnote 35 As Greene puts it, “a key driver of permanent states of emergency is that the application of the emergency paradigm has broadened considerably, being applied to increasingly ‘mundane’ and therefore more regular crises.”Footnote 36 Hence, defining the emergency for the purpose of EU emergency law serves to prevent the “crisification” of EU law and policy,Footnote 37 that is to say, to avoid that relying on a broad and subjective notion such as “crisis” dangerously blurs the distinction between what is normal and what is exceptional.
III. The constitutional framework of European emergency law
The landscape of European constitutional law encompasses various layers of norms that are far from impermeable. Indeed, rules and principles of EU constitutional lawFootnote 38 act as part of national legal systems,Footnote 39 whereas national constitutional traditions inspire and complement EU law.Footnote 40 Similarly, EU constitutional law and ECHR law are not isolated monads but interacting frameworks, whereby, albeit not always consistently, mutual exchange prompts a certain degree of convergence.
Both EU Member States’ laws and ECHR law accommodate emergency by means of a set of rules of emergency law. On the one hand, national legal orders envisage rules of emergency law at constitutional and/or at legislative level. These typically take the form of state of emergency clauses, that endow the executive with exceptional powers for a certain period of time,Footnote 41 and/or clauses empowering the executive to adopt ad hoc measures with the force of law (typically decree-laws) in the event of an emergency.Footnote 42 On the other hand, Article 15 ECHR allows the Contracting Parties to derogate from fundamental rights’ protection standards in case of emergency.
The national and ECHR models are both reflected in EU law. Whilst EU primary law does not set out a general definition of emergency, it foresees a number of exceptional Treaty provisions that apply when certain societal interests are under threat.Footnote 43 These include Articles 42(7) TEU and 66, 78(3), 107(2)(b) and (3)(b), 122(1) and (2), 143, 144, 213, 222, and 347 TFEU. Despite the diverse terminology employed in these provisions, legal scholars have conceptualised them as “emergency” clauses.Footnote 44 These emergency clauses mirror both the national and ECHR models in that they include legal bases empowering EU institutions to take extraordinary measures (national model)Footnote 45 and derogation clauses allowing the Member States to depart from EU law (ECHR model).Footnote 46
In a study concerning states of emergency, Questiaux observed that “[t]here is a striking correspondence between national and international instruments” in the definition of “the circumstances which warrant the entry into force of the state of emergency.”Footnote 47 It is such correspondence that prompts a reflection on the features of European definitions of emergency that “would make it possible to group its different appearances in legal discourses together.”Footnote 48 In particular, the question arises as to whether the European legal framework beyond EU law may accommodate an understanding of emergency that could contribute to providing such a notion with legal meaning under EU law. Answering this question does not entail identifying a minimum common denominator amongst constitutional systems, but rather examining the extent to which the solutions provided by those legal orders fit with the current structure of the EU Treaties.Footnote 49
In what follows, the way in which the notion of emergency is defined across EU Member States’ emergency laws and ECHR law is analysed from three perspectives. The first perspective concerns the approach taken towards the definition of emergency. Material approaches focus on the event from which the emergency stems (for example, a pandemic) or on the fundamental societal interest that is threatened by the emergency (for example, a health threat). Conversely, functional-structural approaches put the emphasis on the characteristics of the threat (for example, its suddenness).Footnote 50 The second perspective relates to the legal significance associated with the threat’s territorial extension. The third perspective considers the extent to which the notion of emergency is disentangled from the notion of crisis.
1. Emergency in EU Member States’ laws
EU Member States’ emergency laws adopt both material and functional-structural definitions of emergency. With regard to material definitions, the majority of Member States’ constitutions allow for the adoption of exceptional measures in case of war.Footnote 51 Next to war, emergency laws may also refer to mutual defence obligations arising from international treaties to which they are parties.Footnote 52 Most emergency laws also cover threats to internal security posed by terrorism, internal upheavals, and public disorders.Footnote 53 In essence, typical emergencies in national emergency laws are threats to public security posed by violent external attacks or internal disturbances. When these threats trigger the activation of an emergency regime, the latter is alternatively and inconsistently indicated with terms such as “state of war,” “time of war,” “state of defence,” “state of tension,” “unexpected attack,” or “martial law.”Footnote 54
Another typical case falling within the scope of emergency laws are natural or man-made disasters. Explicitly mentioned by several constitutions,Footnote 55 it is common for this type of emergencies to be regulated in sectoral legislation that may be broadly referred to as “civil protection acts.”Footnote 56 Similarly, also threats to public health are often dealt with in sectoral legislation, although such threats are at times covered by “general” emergency laws.Footnote 57 Further, albeit less recurrent, grounds for the adoption of emergency measures are threats to the environment,Footnote 58 economy,Footnote 59 and property.Footnote 60 Finally, in some EU countries, the grounds to invoke emergency powers include references to fundamental values such as democracy, the rule of law, and human rights.Footnote 61
Turning to functional-structural definitions, these are particularly common in clauses endowing the executive with ad hoc emergency law-making powers.Footnote 62 Such clauses typically emphasise the urgency of the threat, which necessitates exceptionally empowering the executive to adopt acts with the force of law. Moreover, functional-structural definitions can also be found in state of emergency clauses. For instance, Article 92 of the Slovenian Constitution defines emergency as “a great and general danger,” whereas the Spanish Organic Law No. 4/1981 refers to “extraordinary circumstances that render it impossible to maintain normalcy through the ordinary powers of the competent authorities.”Footnote 63 Functional-structural elements can be found not only instead of but also in addition to material ones. For example, Estonian emergency law defines emergency as an “event or a chain of events or an interruption of a vital service which endangers the life or health of many people, causes major proprietary damage, major environmental damage or severe and extensive interferences with the continuity of vital services.” This material approach is coupled with functional-structural conditions, namely that the threat “requires the prompt coordinated activities of several authorities or persons involved by them, the application of a command organisation different from usual and the involvement of more persons and means than usual.”Footnote 64 Notably, across Member States’ emergency laws, certain features are frequently required for the threat to constitute an emergency: first, exceptionality, in the sense that the threat cannot be handled through the ordinary tools available to national authorities;Footnote 65 second, seriousness, meaning that the threat exceeds a certain severity threshold;Footnote 66 third, suddenness, signifying that the threat materialises quickly and unexpectedly, causing an abrupt and unforeseen shock;Footnote 67 finally, urgency, indicating that the threat requires immediate action to prevent escalation or further damage.Footnote 68
With regard to the territorial scope of emergencies, most emergency laws allow the declaration of emergency regardless of whether the threat affects all or part of the country, provided the territorial extension of the emergency is defined in the declaration itself.Footnote 69 An exception in this respect is war, which necessarily triggers emergency regimes within the entire country.Footnote 70 Notably, under some emergency laws the territorial extent of the emergency may entail legal consequences. For instance, the German Basic Law provides for two different states of internal emergency depending on whether one or more Länder are affected.Footnote 71
Finally, the word “emergency” is largely preferred over “crisis” when providing for exceptional legal regimes or rules.Footnote 72 Only few emergency laws depart from this tendency and refer to the notion of crisis. First, a state of “crisis” may be considered as alternative to a state of “emergency”. Thus, Article 48(1) of the Hungarian Constitution provides that a state of national crisis may be declared in the event of war or danger of war, whereas a state of emergency can be invoked to counter violent subversive actions. Second, “crisis” may be used as a broad term encompassing a range of exceptional legal regimes. For instance, the notion of “crisis situation”Footnote 73 is used in Slovak constitutional law to generically refer to any of the four special legal regimes foreseen by emergency law, namely time of war, state of war, state of emergency, and state of alarm. Finally, the notion of crisis can serve both the abovementioned functions. In the Luxembourgish Constitution, as amended in 2023, the term “crisis” is used in two ways. On the one hand, in Article 48 the term état de crise encompasses three types of threats. On the other hand, when listing such three types, next to threats to the vital interests of the population and serious breaches of public security, the Constitution refers to an “international crisis.” Interestingly, confirming the constitutional inappropriateness of the term “crisis,” this reference to international crises has been criticised by the Venice Commission for not being sufficiently clear and precise.Footnote 74
2. Emergency in Article 15 ECHR
Article 15(1) ECHR, like other international human rights instruments,Footnote 75 contains a provision allowing the Contracting Parties to derogate from their obligations under the Convention “[i]n time of war or other public emergency threatening the life of the nation”. Unlike emergency clauses included in national constitutions, derogation clauses contained in international treaties “do not aim at preserving the state but the treaty.”Footnote 76 The orientation of the European Court of Human Rights (“ECtHR”) is thus to leave a margin of appreciation to the States when defining what constitutes an emergency,Footnote 77 since “[b]y reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide […] on the presence of such an emergency.”Footnote 78 Nonetheless, the ECtHR does not refrain from exercising its “European supervision.”Footnote 79 For instance, in Dareskizb Ltd v Armenia, the Court found that, whilst the 2008 post-electoral demonstrations in Yerevan were “undoubtedly very tense and could be considered a serious public-order situation,” this was not in itself conclusive evidence that they amounted to an emergency under Article 15 ECHR.Footnote 80 In essence, the nature of Article 15 ECHR as a derogation clause has not prevented ECHR law from developing its own definition of emergency. Indeed, in Lawless v Ireland, the ECtHR famously defined the scope of Article 15 ECHR by reference, besides war, to “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.”Footnote 81 Such a definition has been permeated with greater specificity by the subsequent case-law of the ECtHR and the contribution of the European Commission of Human Rights. Arguably, in light of the evolution of ECHR law, an emergency is now deemed to arise when States have to adopt extraordinary measures to respond to an exceptional, serious, sudden, and urgent threat to a fundamental societal interest. The individual elements of this definition have evolved gradually under ECHR law.
First, to qualify as exceptional within the meaning of Article 15 ECHR, a threat must be impossible to handle with the normal tools at disposal of public authorities. In Lawless v Ireland, the ECtHR highlighted that the Irish Government had refrained, for as long as possible, from relying on emergency powers, until the situation deteriorated due to a homicidal ambush.Footnote 82 In other words, emergency powers had been triggered only when it became unavoidable, in light of the impossibility of addressing a violent escalation with ordinary legal means. The exceptionality requirement was confirmed by the European Commission of Human Rights in the “Greek case.” In that case, the Commission held that, for an emergency to arise, the normal measures that the country can adopt without derogating from the Convention must result plainly inadequate.Footnote 83
Second, with regard to the seriousness of the threat, in Lawless v Ireland, the ECtHR held that, to qualify as emergency, a threat should have affected “the organised life of the community of which the State is composed.”Footnote 84 In that case, the Court found that the terrorist activity of the Irish Republican Army (“IRA”) met this requirement since the IRA “engaged in unconstitutional activities and us[ed] violence to attain its purposes.”Footnote 85 In addition, the ECtHR considered the Irish Government’s recourse to emergency powers justified in light of the gravity of the risks posed by terrorism to Ireland’s international relations.Footnote 86 Such a high threshold, reproposed by the European Commission of Human Rights in the Greek case,Footnote 87 was partially lowered in A and Others v United Kingdom. Footnote 88 That case originated from the judgment of the UK House of Lords in Belmarsh,Footnote 89 concerning certain measures adopted by the UK to counter the terrorist threat posed by Al-Qaeda. The ECtHR clarified there that emergency situations may occur even when the country’s institutions, government or existence as a civil community is not imperilled.Footnote 90
Third, as regards the suddenness of the threat, also this requirement was established by the ECtHR in Lawless v Ireland. In that case, the Court considered that an emergency existed because there had been a “steady and alarming increase in terrorist activities from the autumn of 1956 and throughout the first half of 1957.”Footnote 91 Similarly, in A and Others v United Kingdom, the Court held that an emergency within the meaning of Article 15 ECHR may arise when national authorities have reasons to fear that a serious threat could suddenly (“without warning at any time”)Footnote 92 materialise.
Fourth, to qualify as an emergency within the meaning of Article 15 ECHR, the threat must be urgent, in that it is actual or imminent and thus requires immediate State intervention to prevent its escalation.Footnote 93 In Lawless v Ireland, the ECtHR ruled that the use of emergency powers as of 5 July 1957 was justified in light of “the imminent danger” caused by the activities of the IRA.Footnote 94 Indeed, the incident prompting recourse to such powers occurred only eight days before the annual Orange Processions taking place on 12 July and, in the past, that date had been critical for the maintenance of public order. In A and Others v the United Kingdom, moreover, the Court clarified that the requirement of imminence must not be interpreted “so narrowly as to require a State to wait for disaster to strike before taking measures to deal with it.”Footnote 95
Conversely, the threat’s personal, territorial and temporal scope does not influence its qualification as an emergency. With regard to the personal and territorial scope, in Lawless v Ireland, the ECtHR held that the threat had to affect “the whole population,”Footnote 96 whereas in the Greek case the European Commission of Human Rights explained that it must affect the “whole nation.”Footnote 97 Nevertheless, in the subsequent Ireland v United Kingdom, the ECtHR clarified that an emergency may well have a regional or local dimension and affect only part of the country’s inhabitants.Footnote 98 Concerning the temporal scope, in A and Others v United Kingdom the Strasbourg Court rejected that a constituent element of emergency is the temporariness of the threat. In fact, as explained by the Court, even though temporariness is a mandatory feature of emergency measures, it is not an inherent characteristic of emergency under Article 15(1) ECHR.Footnote 99
Finally, in the abovementioned case-law, the ECtHR relies more often on the term “emergency” than “crisis.” For instance, in Dareskizb Ltd v Armenia, the word “emergency” appears ninety-eight times, and “crisis” only three times. Similarly, in A and Others v the United Kingdom, “emergency” is used fifty-eight times and “crisis” three times, whereas, in Ireland v United Kingdom, “emergency” is used seventy times and “crisis” twelve times. Whilst the Court defines “emergency” not as any crisis but as “an exceptional situation of crisis,”Footnote 100 it is difficult to distinguish a precise and principled approach underlying the Court’s choice for one term rather than the other. One may note, however, that in more recent judgments, such as Dareskizb Ltd v Armenia and A and Others v United Kingdom, the term “crisis” is only used when referring verbatim to long-established case-law such as Lawless v Ireland, the Greek case, and Ireland v United Kingdom. It is precisely Ireland v United Kingdom that offers a plausible key to distinguish between the notion of crisis and that of emergency. In that case, the Court used the term “crisis” to refer to the “tragic and lasting” tensions covering at least the period between 1963 and 1976.Footnote 101 In that broader context, the “emergency” potentially covered by Article 15 ECHR was considered only that arising between 1971 and 1975, due to the sudden intensification of violence caused by “a dramatic upsurge in terrorist activity by the IRA.”Footnote 102 The emergency arising in 1971 was deemed, essentially, as a fast-burning phase of the broader crisis that had long affected Northern Ireland.
IV. Emergency in EU constitutional law
1. Coherent in vagueness: definitional approaches across Treaty emergency clauses
Similar to national emergency laws and ECHR law, the emergency clauses included in the EU Treaties also include both material and functional-structural definitions of emergency. In particular, adopting a material approach that mirrors the most common material definitions encountered within EU Member States’ emergency laws, Articles 42(7) TEU and 222 TFEU cover war and terrorist attacks and natural or man-made disasters respectively. Articles 107(2)(b) and 122(2) TFEU can be triggered in case of natural disasters, whereas Article 347 TFEU is applicable to war and defence obligations arising from international law. Conversely, some emergency clauses foresee (also) broad and vague definitions that include functional–structural elements. Article 66 TFEU covers “exceptional circumstances,” Articles 107(2)(b) and 122(2) TFEU refer to “exceptional occurrences,” and Articles 107(3)(b) and 347 TFEU can be triggered in the event of “serious disturbances.” Articles 122(1) and 143 TFEU apply to “difficulties,” whilst Articles 78(3) and 144 TFEU mention “emergency” and “sudden crisis” respectively. Lastly, Article 213 TFEU refers to a situation which “requires urgent financial assistance.”
The functional-structural features of exceptionality, seriousness, suddenness and urgency of the threat, commonly found in national laws and ECHR law, are only partially reflected across these emergency clauses. First, the considered emergency clauses conceive emergencies as exceptional situations, meaning that they cannot be handled by means of ordinary legal tools. Ordinary legal tools are legal rules that apply regardless of the occurrence of a threat. Since they are not appropriate to deal with the situations covered by emergency clauses, the latter permit derogations from the ordinary legal framework. Thus, Articles 66 TFEU allows the Council to adopt safeguard measures derogating from the free movement of capital to and from third countries guaranteed by Article 63 TFEU;Footnote 103 Article 107(2)(b) and (3)(b) TFEU are exceptions to the general prohibition of State aid enshrined in Article 107(1) TFEU; Articles 144 and 347 TFEU enable the Member States to depart from the rules governing the internal market;Footnote 104 Article 213 TFEU permits the granting of financial assistance to developing countries, deviating from the general rule provided by Article 212 TFEU;Footnote 105 Articles 78(3)Footnote 106 and 122(1)Footnote 107 TFEU allow measures adopted by the Council alone to derogate from the legislative framework laid down by the co-legislators, departing from the principle that legislation can only be amended by means of new legislation (and thus recalling national emergency clauses providing the executive with the power to adopt ad hoc emergency measures with the force of lawFootnote 108 ).Footnote 109 Finally, it is more controversial whether Articles 122(2) and 143 TFEU, through which financial assistance can be granted to Member States that are faced with challenging situations, may be considered as exceptions to the no-bailout clause contained in Article 125 TFEU. In Pringle, the Court of Justice of the European Union (“CJEU”) held that, if Article 122(2) TFEU was an exception to Article 125 TFEU, it “would have had to state that it derogated from Article 125 TFEU.”Footnote 110 This formalistic approach served in that case to save the European Stability Mechanism (“ESM”) and affirm its compatibility with EU law, by providing a narrow interpretation of Article 125 TFEU. However, it is based on the wrong assumption that every exceptional Treaty provision derogating from a general rule would always make explicit its own derogating function. The wrongness of this premise is demonstrated by the abovementioned Articles 66 and 213 TFEU. In fact, the history of Article 122(2) TFEU shows that this provision was conceived by the Treaty drafters precisely as an exception to the no-bailout clause.Footnote 111 As Borger suggests, the CJEU’s reluctance to expressly qualify the relationship between Articles 125 and 122(2) TFEU in terms of rule and exception may also be explained in that this would have frustrated any potential future efforts to bring the ESM back within the EU legal order by means of Article 352 TFEU, since the latter cannot widen the scope of Union powers.Footnote 112
Second, all the considered emergency clauses require that, to qualify as emergency, a threat cross a certain threshold of seriousness. Similar to ECHR law,Footnote 113 it is not relevant what the threshold exactly is, but rather that the threat may produce significant negative effects on the interests protected by the emergency clause. This is made explicit in Articles 66, 122(2), 143, 144Footnote 114 and 347 TFEU, whereas it was clarified by the CJEU with regard to Articles 78(3),Footnote 115 107(3)(b),Footnote 116 and 122(1) TEU,Footnote 117 and can be inferred from the institutions’ practice concerning Articles 107(2)(b)Footnote 118 and 213 TFEU.Footnote 119
The situation is less clear for the requirements of suddenness and urgency. In De Witte’s view, the threat’s suddenness would be the key feature to distinguish emergency from the broader notion of crisis.Footnote 120 Yet, whilst some emergency clauses clearly require, either explicitlyFootnote 121 or implicitly,Footnote 122 that a threat be sudden, it is difficult to find definitive legal sources establishing this requirement for all emergency clauses.Footnote 123 Furthermore, suddenness is not one of the conditions established by the CJEU for the applicability of Article 107(3)(b) TFEU,Footnote 124 nor is it a condition to trigger Articles 66,Footnote 125 143, and 213 TFEU. Indeed, the scope of Articles 66 and 213 TFEU largely mirrors the scope of Articles 143-144 TFEU,Footnote 126 which are intended to encompass also non-sudden threats. The wording of Article 144 TFEU explicitly covers “sudden” threats to non-euro Member States’ financial situation as lex specialis vis-à-vis Article 143 TFEU. It follows that Article 143 TFEU must also apply to financial threats that are not sudden.
Like suddenness, urgency of the threat is not a common requirement enshrined in all the considered emergency clauses. Whereas Article 213 TFEU explicitly mentions urgency as a condition of application and urgency was in some instances recognised by the CJEU as a factor justifying the use of emergency clauses,Footnote 127 it is difficult to detect a horizontal common pattern or practice.Footnote 128 Articles 66 and 143 TFEU, in fact, do not require urgency. As for Article 66 TFEU, this can be inferred from its historical evolution. Urgency was not a necessary requirement in the original Article 73 EEC.Footnote 129 Amongst the latter’s successors, urgency was explicitly included in Article 60 EC (now Article 75 TFEU) but not in Article 59 EC (now Article 66 TFEU). This suggests that the Treaty drafters deliberately chose not to make urgency a condition under Article 66 TFEU. With regard to Article 143 TFEU, a “sudden crisis” in the balance of payments within the meaning of Article 144(1) TFEU arises when “the qualified difficulties abruptly reach such a dimension that it would be unacceptable for the respective Member State to wait until the formal procedure according to Article 143 TFEU has been completed.”Footnote 130 It follows that, a contrario, urgency is not a requirement under Article 143 TFEU. This interpretation is supported by Regulation (EC) No 332/2002, that implements Article 143 TFEU by establishing a facility to provide medium-term financial assistance.Footnote 131 The aim of that Regulation is partially preventive: financial assistance to a Member State should ideally “take place soon enough to encourage that Member State to adopt, in good time in a situation where orderly exchange rate conditions prevail, economic policy measures likely to prevent the occurrence of an acute balance of payments crisis.”Footnote 132
Although the existence of an emergency is, in principle, a question of fact that must be assessed from the perspective of EU law,Footnote 133 emergency clauses’ vague formulation leaves room for institutional discretion in deciding which situations warrant the use of emergency powers. Whilst exceptional provisions should normally be interpreted strictly, the standard taken by the CJEU to assess the legality of EU emergency action is the manifest error of assessment. According to the Court, it is sufficient that “it is reasonable to suppose that the [EU] was justified”Footnote 134 in making use of emergency powers, for “EU institutions must be allowed broad discretion when they adopt measures in areas which entail choices, in particular of a political nature, on their part and complex assessments.”Footnote 135
The vagueness of emergency clauses and the CJEU’s deference towards political institutionsFootnote 136 have brought to the consolidation of different interpretations of similar notions. Take, for instance, the notions of exceptionality and suddenness. First, with regard to exceptionality, in the context of Article 78(3) TFEU, the Court clarified that an emergency may arise even where the Member State faced with a sudden inflow of third-country nationals already suffers from structural weaknesses of its asylum system.Footnote 137 The situation is less clear within the framework of Article 122(2) TFEU. This provision allows the granting of Union financial assistance to a Member States that is seriously threatened with severe difficulties caused by a situation “beyond its control.” Some commentators thus doubt the compatibility with the Treaties of financial assistance granted to Member States that, due to their unsound budget management, have themselves contributed to the difficulties with which they are faced.Footnote 138 Others scholars, however, argue that the requirement that circumstances be beyond Member States’ control must be read as simply referring to the negative consequences of the difficulties which a Member State cannot handle, regardless of its past negligence.Footnote 139 Finally, in its practice concerning Article 107(2)(b) TFEU, the Commission has considered the latter provision as not applicable in cases where the threat resulted from national authorities’ failure to apply sufficiently rigorous prevention standards.Footnote 140 Second, the notion of suddenness is also subject to divergent interpretations. For instance, in the context of Article 78(3) TFEU, the CJEU conflated suddenness with exceptionality when it stated that “an inflow of nationals of third countries on such a scale as to be unforeseeable may be classified as ‘sudden’ […] inasmuch as it makes the normal functioning of the EU common asylum system impossible”.Footnote 141 Conversely, and in line with the abovementioned ECtHR’s case-law, in Balkan-Import, a case concerning Article 122(1) TFEU, suddenness was considered to simply refer to the unexpected and quickly escalating speculations affecting the fluctuations of currencies in the first months of 1971.Footnote 142
Not only do different interpretations of similar notions contribute to fragmentation and uncertainty within the constitutional framework of EU emergency law, but they also risk normalising the use of exceptional powers that were originally intended for emergency contexts. An example in this respect is Article 108(2) TFEU, which allows the Council to exceptionally declare the compatibility with EU law of aid granted by a Member State. Article 108(2) TFEU refers, like Article 66 TFEU, to “exceptional circumstances.” Indeed, its drafting history suggests that Article 108(2) TFEU was originally designed to allow the political intervention of the Council in case of serious economic threats.Footnote 143 This led the Commission and AG Cosmas, in Commission v Council, to interpret Article 108(2) TFEU as an emergency clause and dispute the legality of a decision adopted by the Council authorising the granting of exceptional aid to wine producers in France and Italy. The Commission argued that the economic situation of French and Italian wine producers could not constitute “exceptional circumstances” because it was comparable to the situation of previous years and was better than the situation in other comparable markets.Footnote 144 The AG agreed with the Commission, highlighting that the notion of exceptional circumstances “involves the idea of something extraordinary and unforeseen or at least something not permanent or continuous and of course something other than normal” and “a chronic unsatisfactory situation in one sector of economic activity […] cannot ipso facto come within the concept of ‘exceptional circumstances’ unless other extraordinary and nonpermanent events which have supervened justify their coming within it.”Footnote 145 In other words, Article 108(2) TFEU could not be used because no emergency threatened the concerned markets. The Court rejected this argument and took the view that, even if no emergency occurred, the risk of serious economic and social repercussions associated with the (persistent) economic situation of wine producers was sufficient to justify recourse to Article 108(2) TFEU.Footnote 146 Thus, although the term “exceptional circumstances” delimits the scope of both Articles 66 and 108(2) TFEU, now only the former can be conceptually framed as an emergency clause. Furthermore, following the Court’s case-law, “exceptional circumstances” under Article 108(2) TFEU must be understood as different than “exceptional occurrences” under Article 107(2)(b) TFEU. For the latter, which is indeed conceptualised here as an emergency clause, cannot be triggered merely to address challenging economic conditions but requires the occurrence of a threat “of specific severity” which goes beyond “the market forces which must be faced by any business.”Footnote 147
In conclusion, in the absence of full terminological and conceptual coherence, the applicability of Treaty emergency clauses ultimately depends on the materialisation of the (often vague) conditions enshrined in each clause, rather than being anchored to a generalised, clear notion of emergency horizontally informing the whole Treaties.
2. Territorial scope of emergency clauses: (partial) irrelevance of the cross-border dimension
The cross-border dimension of a threat is not always a condition of applicability of emergency clauses. In fact, whilst Article 66 TFEU covers situations where the Economic and Monetary Union as a whole is threatened by disruptions affecting movement of capitals, Article 42(7) TEU and Articles 78(3), 122(2), 143, and 222 TFEU can be triggered even when only one Member State is faced with an emergency situation. Notably, in this regard, the 2023 draft agreement on the EU accession to the ECHR provides that the term “life of the nation” under Article 15 ECHR “shall be considered, […] with regard to situations relating to the member States of the European Union, as the case may be, individually or collectively”Footnote 148
The partial irrelevance of the cross-border dimension within EU emergency law can be explained by reference to the interconnectedness of national systems, that renders the Member States particularly exposed to the risks of quick escalations and spillover effects typical of emergency contexts. Lisbon’s insistence on emergency solidarity should thus be understood in neofunctionalist terms,Footnote 149 for solidarity has become a necessary tool to remedy the vulnerability of an integrated multi-state system like the EU.Footnote 150 To be sure, this does not restrict the constitutional scope of the principle of subsidiarity, in the sense that every emergency legal basis empowering EU institutions to take action only applies to the extent that the objectives of that action cannot be achieved with equivalent effectiveness through national measures.Footnote 151
Finally, emergency derogation clauses that allow a Member State to depart from EU ordinary rules, such as Articles 107(2)(b) and (3)(b), 144, and 347 TFEU, evidently apply when that Member State is threatened by an emergency. Like Article 15 ECHR, also these clauses aim at protecting the Treaties.Footnote 152 In essence, the suspension of the ordinary rule serves the ultimate, conservative purpose of preserving, in the longer term, the applicability of the ordinary rule itself.Footnote 153 Thus, Article 107(2)(b) and (3)(b) TFEU permit that Member States grant aid, otherwise prohibited, to undertakings in case of emergency. This mechanism prevents the market from being permanently affected by emergencies and aims at restoring the status quo ante, enabling ordinary State aid rules to once again govern the correct functioning of the internal market. Likewise, the mechanisms designed by Articles 144 and 347 TFEU ultimately aim at minimising the disruptive effect on the EU internal market of the derogations from EU law that a Member State must enact to counter an emergency.
3. Blurred demarcation between emergency and crisis within EU constitutional law
It was observed above that De Witte considers the notion of crisis to encompass non-sudden situations that, as such, do not warrant the use of EU emergency law.Footnote 154 Indeed, in line with EU Member States’ laws and ECHR law, also within EU law it is possible to identify an embryonic tendency to distinguish between emergency and crisis. For instance, in Slovakia and Hungary v Council, the CJEU used the word “crisis” to refer to the broader situation of distress faced by EU countries since 2014.Footnote 155 Instead, the trigger for the Council’s recourse to Article 78(3) TFEU was specifically the emergency constituted by the “sharp increase in the inflow of third country nationals into Greece and Italy over a short period of time, in particular during July and August 2015.”Footnote 156 Such a distinction, based on the suddenness of the threat, recalls the abovementioned ECtHR’s decision in Ireland v United Kingdom. Similarly, within the context of Article 107(2)(b) TFEU, the Commission considered the 2005–2006 avian influenza as a “crisis,” that, however, did not constitute an exceptional occurrence that could trigger Article 107(2)(b) TFEU in that the avian influenza was, at that time, already a “well-known disease.”Footnote 157 In the same vein, the fact that Article 144 TFEU refers to a “sudden crisis” seems to confirm that the Treaties associate the notion of crisis with threats that are not necessarily sudden.
However, drawing neat lines between emergency and crisis under current EU law is not an easy task. For instance, De Witte himself considers Articles 66 and 107(3)(b) TFEU as emergency clauses,Footnote 158 whereas, as explained above, these provisions do not envisage the threat’s suddenness as a condition for applicability. Moreover, whilst there is a common tendency in the way the CJEU and the Commission distinguish between crisis and emergency in the contexts of Articles 78(3) and 107(2)(b) TFEU respectively, those institutions fail nonetheless to keep full terminological consistency.Footnote 159 Furthermore, the reference to a “sudden crisis” in Article 144 TFEU suggests that Article 143 TFEU, conceptualised here as an emergency clause, is applicable to (non-sudden) crises. Finally, broadening the horizon of these considerations to emergency law beyond primary law, one even finds that typical instances of emergency such as terrorist attacks and natural disasters are defined as “crises” within the implementing framework of Article 222 TFEU.Footnote 160
V. Conclusions
Based on the conceptualisation of emergency law as a constitutional tool to enable and constrain the exercise of exceptional powers, this contribution aimed to investigate the extent to which EU constitutional law may accommodate one definition of emergency. The investigation carried out in this article shows that the EU Treaties include definitional elements that are recurrent across European emergency law, confirming the limited legal significance of the territorial scope of emergencies and an embryonic tendency to disentangle emergency from the broader notion of crisis. Nevertheless, emergency clauses’ vague formulation hinders the possibility to reach one coherent definition of emergency that, acting somewhat as a horizontal principle of EU emergency law, would allow the setting of clear and certain limits to the exercise of emergency powers. Such vagueness has, in fact, caused the consolidation of fragmented interpretations and ultimately broadened EU institutions’ discretion, supported by the CJEU’s judicial deference.
Undoubtedly, the typically unpredictable nature of emergencies requires that emergency law be sufficiently flexible. From this perspective, the broad formulation of Treaty emergency clauses is understandable and, to an extent, desirable. Nonetheless, lack of terminological and conceptual coherence in the legal framework risks putting into question the constitutional legitimacy of emergency responses. On the one hand, ambiguity exposes the EU legal order to the risks associated with abuse of emergency powers in the name of generic crises. On the other hand, it increases the susceptibility of the EU and its Member States to accusations of such abuse.
The constitutional framework could thus benefit from change. One may think of adding a provision to EU primary law horizontally defining minimum conditions for the applicability of all Treaty emergency clauses, such as the exceptionality and seriousness of the threat. Yet, in its proposal to introduce a state of emergency clause in the Treaties, the European Parliament opted for a minimalistic provision bluntly stipulating that the Commission’s extraordinary powers would be triggered “[i]n the event of an emergency affecting the European Union or one or more Member States.”Footnote 161 This reform would represent a missed opportunity to constitutionally accommodate a definition of emergency in the EU legal order. The assessment of what constitutes an emergency would be essentially left to the unfettered discretion of the Parliament and the Council, equipping the CJEU with no intelligible benchmark to exercise meaningful judicial review. That said, given that Treaty amendment remains a chimera in the current political landscape, more realistic prospects of reform within EU emergency law are confined to secondary law. At the legislative level, newly adopted instruments such as the Crisis and Force Majeure RegulationFootnote 162 and the Internal Market Emergency and Resilience ActFootnote 163 may contribute to further convergence or, more likely, fragmentation of the definitional framework.
Acknowledgments
I am grateful to Matej Avbelj, Bruno De Witte, Phedon Nicolaides, Anna Zemskova, and the anonymous peer reviewer for their insightful feedback on earlier versions of this article. This article was presented as a draft paper at the 7th Young European Law Scholars Conference (YELS) held on 6 and 7 June 2024 at the Faculty of Law of the University of Ljubljana. I would like to thank the organisers Marjan Kos and Jaka Kukavica as well as all participants for their valuable comments. The usual disclaimer applies.
Competing interests
The author declares not to have any competing interests.
Open access
