Does Europe Need an Emergency Constitution?

Abstract

The European Union is increasingly shaped by emergency politics as a mode of rule. Other than the state of exception in domestic constitutions, emergency politics at the European level is largely unregulated—with important negative effects for the integrity and normative quality of the European Union’s legal and political order. This article discusses whether and how a European-level emergency constitution could dampen the costs to constitutionalism by formally pre-regulating the assumption and exercise of emergency powers in the European Union. It proposes design principles that a European emergency constitution would need to meet in order to be desirable. They include prescriptions on who should declare an emergency and who should wield emergency authority up to what constitutional limit. While a European emergency constitution could theoretically alleviate some of the normative concerns about emergency politics, it is plagued by issues of implementation that only a fundamental constitutional overhaul of the European Union could address.

The Impossibility of Constitutionalizing Emergency Europe1

“…This is, in no small part, owing to the absence of EU‐level actors with sufficient legitimacy to invoke, govern, and end states of emergency (cf. Kreuder‐Sonnen, 2021). Secondly, and in partial explanation of the first claim, the collective inability of national governments and supranational institutions to seize the EU's constitutional moment (owing largely to domestic opposition) indicates that the EU is far from becoming the kind of democratically constitutionalized entity that could exercise such authority.…”

“…Yet, as the inability to undertake any meaningful constitutional reform over the past decade indicates, the EU as a polity does not have enough popular support to be endowed with emergency powers (cf. Kreuder‐Sonnen, 2021). Consequently, democratic legitimation demands that emergency powers be located at the level of nation‐states, though their effectiveness will be limited.…”

Constitutionalizing the EU in an Age of Emergencies

“…A sophisticated proposal for an EU emergency constitution has been laid out by Kreuder-Sonnen (2021). Critical of the irregular methods employed by EU executives, and conscious of their tendency to be locked in later, Kreuder-Sonnen advocates a set of principles and procedures with which to make EU emergency rule more orderly, less harmful to law, and more reversable once conditions permit.…”

“… Notably, Kreuder-Sonnen (2021, p. 9) argues that the power to identify exceptional circumstances in the EU case should generally lie with the Council rather than the Parliament.9 The problem is also thoroughly discussed byKreuder-Sonnen (2021).Constitutionalizing the EU in an Age of Emergencies…”

The de-institutionalisation of power beyond the state

“…Although the workings of international organisations have been circumscribed by conventions of practice and statements of principle, these constraints have been weakly undergirded by sanctions for their breach and typically made conditional on their capacity to serve particular policy commitments (Isiksel, 2016). When emergency powers are pursued in international organisations, it is generally in a manner that has not been codified in advance, and by actors who lack sovereign authority (Kreuder-Sonnen, 2019: 38, 2021; White, 2015b). They must therefore cajole others into supporting their actions, with all the reliance on informal networks this is likely to entail.…”