‘Emergency Powers’ of the European Union: An Inquiry on the Supranational Model

What role do emergency powers play under the EU Treaties, and how might they be further developed? At present, these questions are difficult to answer. Due to the hybrid nature of its legal order, situated between a fully-fledged federation and an international organization of sover- eign states, the European Union’s approach to emergencies has drawn on both international and domestic models of emergency powers. Still, when measured against these derivative models, emer- gency powers in the EU are difficult to assess in terms of their supranational distinctiveness. The emergency paradigm has yet to function as a regulative ideal within the Union. Through a systematic interpretation, supported by institutional practice and judicial interpretation, this paper examines a number of emergency legal bases, namely, Article 42(7) TEU, and Articles 78(3), 122(1) and (2), 143(2), and 222 TFEU, and brings them into a cohesive system. While these provisions coexist with other instruments applicable in emergency contexts, they also exhibit specific differences and, taken together, may be read as establishing a core framework for EU emergency powers that reflects the EU’s distinctive characteristics and functions, with potential for further development. The paper therefore explores key elements of this emerging ‘supranational model’, including who can declare an emergency, under what conditions it can be declared, which actors are vested with special powers during an emergency, and whether emergency measures may restrict fundamental rights. It also con- siders the European Parliament’s recent proposal to insert an emergency clause into the TFEU and how the EU system of emergency powers might be further developed.