From Emergency Politics to Authoritarian Constitutionalism? The Legal and Political Costs of EU Financial Crisis Management

Abstract

In his lecture onThe Repressed State of Emergency, Ernst-Wolfgang Böckenförde argues for the constitutional possibility of a partial superimposition of certain laws in times of emergency. Repressing the state of emergency would ultimately lead to greater and more permanent damage to the rule of law and liberal rights. This warning bears some similarities to Giorgio Agamben's analysis of the emergence of a permanent state of emergency, which loses the feature of exceptionality by becoming “the dominant paradigm of government in contemporary politics.” Agamben thus proposes a shift from structure to practice, which focuses on the features of emergency politics instead of states of exceptions. The European Union's recent financial crisis is a promising object of research in this regard. After a brief discussion of Böckenförde's illuminating lecture on the repressed state of emergency, this Article will analyze a comment written by Böckenförde at the beginning of the Euro crisis. While this comment has sometimes been interpreted as an unconditional defense of unlawful emergency measures, a closer look at this statement reveals a much more nuanced argumentation. Böckenförde concurs with other legal scholars—such as Paul Kirchhof—in emphasizing the danger of an erosion of the rule of law through illegal measures. Böckenförde's intervention, however, leaves room for interpretation that this emergency action could—in principle and under specific circumstances—nevertheless be legitimate, although he was critical towards the handling of the crisis. On a more general level, this Article will discuss if the suspension of law can ever save the legal order it disregards. Next, the legality of EU crisis management—which has not been judged unanimously—will be scrutinized. At least, the circumvention and adaptation of EU primary law involved in this management has crucially changed the law of “normal affairs.” Finally, this Article will argue that the managerial style of emergency politics challenges the EU's project of “integration through law,” hollows out democratic procedures, and enforces, with its one-sided austerity policy, a form of economic integration that bears strong traces of an “authoritarian constitutionalism.”

Europe and the transnational politics of emergency

“…2 Applied to the EU, the concept's value lies in shifting focus from managerial competence to the political aspects of decision-making under pressure (cf. Rhinard 2019;Suntrup 2018;van 't Klooster 2018;Auer 2021). Such a shift is the precondition for a more critical perspective: a focus on functional imperatives tends to minimise the range of thinkable outcomes, and with it the possibility to do more than applaud success or deplore failure.…”

Does Europe Need an Emergency Constitution?

“…If they stick to the letter of the law and rule the emergency powers unconstitutional, they may contribute to a deterioration of the threat or crisis that the emergency powers were intended to avert. On the contrary, if they rubber-stamp the self-empowerment as legal, they constitutionalize the new authority permanently , including its authoritarian baggage (Suntrup, 2018). In the European case, the Court of Justice of the EU (CJEU) was drawn onto the scene at a time when the crisis was at its peak.…”