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

Table of Contents: 1. Introduction. – 2. Conceptual framework: ‘models of constitutional accommodation’ in domestic and international law. – 2.1. Emergency provisions in constitutional documents. – 2.2. Emergency provisions in international Treaties. – 3. From a system of safeguard clauses to a system of emergency clauses: the changing shape of EU emergency powers. – 3.1. The centrifugal effect of safeguard clauses. – 3.1. The centripetal effect of EU emergency powers. – 4. Toward a supranational model of emergency powers. – 5. Current challenges and perspectives of reform. – 6. Conclusions. 

Abstract: 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 sovereign 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, emergency 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 considers 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.

Keywords: emergency powers – crisis – emergency clauses – emergency constitution – treaty revision – safeguard clauses.

1.   Introduction

Over the years, the European Union (EU) has developed considerable expertise in preventing, managing, and mitigating emergencies while simultaneously containing and addressing their effects. Risk regulation, crisis management, and, more recently, emergency powers have progressively evolved as distinct yet interconnected fields, each designed to address emergencies with specific objectives, instruments, and structures.

Risk regulation aims to reduce the likelihood of adverse events, enhancing the EU’s capacity to prevent disasters.[1] This domain pertains to day-to-day activities and operates through ordinary procedures governing requirements, inspections, and potential interventions to enhance preparedness and prevent crises. Crisis management ideally begins where risk management ends.[2] It handles large-scale ‘risks come true’ through structured frameworks, combining response mechanisms, crisis-coordination centres, and timely decision-making, while coordinating the Union’s response with Member States’ actions. 

When an emergency arises, urgency exists but the existing crisis-management framework proves insufficient, emergency powers should come into play. This domain pertains to ‘emergency’ governance, involving procedures and measures that are exceptions or derogations from the ‘ordinary’ ones.[3] Emergency powers may grant the EU authority to rapidly act through dedicated decision-making procedures for the adoption of last-resort, time-limited measures that may deviate from the ordinary legal framework.

While risk regulation and crisis management have attracted substantial academic and institutional attention in EU law, the domain of emergency powers remains nebulous. What role do emergency powers play within the EU Treaty framework and how might they be further developed? At this stage, these questions are difficult to answer as a matter of EU law.

A scholarly debate is emerging on how the EU should handle emergencies.[4] A seminal work has already identified a number of provisions in EU primary law, referred to as emergency competences, specifically designed to enable the EU to take action in response to emergencies or, more broadly, unforeseen situations.[5] The analysis includes five clauses, namely Articles 66, 78(3), 107(3), 122(1) and (2) Treaty on the Functioning of the European Union (TFEU) which are considered part of a ‘complex and disparate set of rules found in many different parts of primary and secondary law’, collectively labelled ‘EU Emergency Law’.[6] Although implicitly, this reading envisions a ‘business as usual’ approach,[7] rejecting the idea that emergencies may justify any alteration of the ordinary scheme of EU governance. This implies that, while the EU legal system is perceived as being able to accommodate any situation it faces, EU emergency law is intended as ordinary EU law that specifically deals with emergencies.

From a political science perspective, a much-debated proposal argues that the EU’s governance of emergencies is largely unregulated and currently relies on an ‘extra-legal approach’ to emergencies.[8] This model acknowledges that, in certain circumstances, addressing extremely grave threats may require acting outside the legal order, sometimes even violating otherwise accepted constitutional principles.[9] Building on that diagnosis, the author proposes strengthening the EU’s emergency response by introducing a new emergency regime into EU law. This would take the form of a dedicated emergency clause, an ‘emergency constitution’, to render the exercise of emergency powers at the EU level more structured, less disruptive to the legal framework, and more reversible once conditions permit. 

Another perspective, closely aligned with the previous view, advocates ‘constitutional accommodation’ as the optimal model for regulating emergency powers in the EU.[10] According to this approach, because ordinary EU law may be insufficient to address certain emergency scenarios, a constitutional emergency framework should be designed in advance.[11] On this model, the author proposes an EU state of emergency to be regulated through an emergency clause inserted in the Treaties, essentially an emergency constitution, which the author also drafted.

The debate over the introduction of the emergency paradigm into the EU Treaties remains ongoing. Against this background, this paper seeks to advance the discussion on the regulation of emergency powers under EU law. Its central claim is that the EU Treaties already incorporate the emergency paradigm. While drawing on both international and national frameworks that constitutionally accommodate emergencies, the EU has progressively elaborated a distinct ‘supranational model’. This model is closely attuned to the Union’s unique characteristics and functions and, as such, holds significant potential for further development. A systematic analysis, supported by institutional practice and judicial interpretation, can help in clarifying this model’s main elements: who can declare an emergency, under what conditions it can be declared, which actors hold special powers during an emergency, and whether emergency measures can restrict fundamental rights.  

Supporting this argument, section 2 examines constitutional and international law models that have influenced the evolution of EU emergency powers. Section 3 traces the development of those powers from an approach focused on Member States’ evasion from treaty obligations to one centred on the Union’s institutional responses to crises. It undertakes a systematic reading of a number of emergency legal bases, namely Article 42(7) Treaty on European Union (TEU) and Articles 78(3), 122(1) and (2), 143(2), and 222 TFEU, complemented by institutional practice and judicial interpretation. Section 4 analyses the common features that may bring these legal bases into a coherent system, enabling the EU to navigate the tension between political discretion and constitutional containment in times of crisis. Section 5 reflects on the recent European Parliament’s proposal for an ‘EU state of emergency’. Building on the preceding analysis, it suggests strengthening the current system of EU emergency powers while maintaining continuity with its historical and systematic development. Section 6 presents some conclusions.

2.   Conceptual framework: ‘models of constitutional accommodation’ in domestic and international law

2.1.  Emergency provisions in constitutional documents

‘Models of constitutional accommodation’ offer a conceptual framework for this inquiry.[12] Accordingly, a legal order may accommodate emergencies by explicitly incorporating into constitutional documents provisions that permit temporary departure from normal principles and procedures, while including safeguards to ensure adherence to the rule of law and fundamental democratic values. The proponents of this model argue that existing ‘normal’ rules may not provide adequate responses to emergency scenarios and insist upon the maintenance of an emergency response within the confines of the law. Emergency powers thus serve a conservative function, by governing the emergency and facilitating the restoration of the ‘normal’ legal order once the extraordinary circumstances have ceased. 

Many systems across the EU adhere to this model.[13] Their constitutional documents often include explicit and detailed emergency provisions, usually referred to as an ‘emergency constitution’,[14] which specify conditions, procedures and limits for the exercise of emergency powers. Despite significant divergences, it is possible to identify the main recurrent components.[15]

Firstly, emergency powers require a definition of the circumstances under which they can be activated. Most European constitutions distinguish between types of emergencies, describing the factual circumstances under which a declaration of a particular emergency regime may be constitutionally permissible.[16] When different regimes coexist, emergency powers are tailored and, at the same time, limited in connection with a particular type of emergency.[17] Such classification methods affect the method by which an emergency regime may be declared, its duration, and the extent and scope of emergency powers granted.[18] Other national constitutions, however, recognize only one type of state of emergency, which may be activated through a specific declaration with a set of explicitly listed circumstances justifying its activation.[19] This approach bypasses many definitional difficulties while granting the government access to the full range of emergency instruments to govern a crisis scenario.[20]

Secondly, emergency constitutions include procedures to declare an emergency. In some cases, the state of emergency is triggered or authorized by the Parliament, sometimes initiated, or following consultation with the executive branch.[21] In other cases, it is the President of the Republic[22] or the Government[23] that proclaims a state of emergency after consultation with certain institutional figures. The point of equilibrium depends on the nature of the emergency and the constitutional culture within a particular legal system. The principle of temporal duration usually requires that states of emergency are short-lived, and emergency measures are limited in time. Emergency powers may be granted for a fixed period, extendable only with legislative approval or constitutional amendment,[24] may have an indeterminate duration while being subject to regular legislative or judicial review,[25]or may be subject to a maximum duration beyond which they cannot be extended.[26]

Another important component for the exercise of emergency powers is the definition of the authority to legislate during emergencies. Emergency constitutions often regulate horizontal and vertical transfers of powers, leading to the expansion of the executive power and concentrations of such power in its hands.[27]

The system of checks and balances is also crucial. Granting the executive the power to act in a discretionary realm beyond the ordinary constitutional boundaries poses the risk of both excessive measures and a perpetuation of the emergency regime. Parliamentary and judicial controls over both the declaration and prolongation of the state of emergency, as well as over emergency measures, are thus crucial for the safeguarding of the constitutional architecture. Parliaments may exercise control at different stages (declaration, prolongation, and termination of a state of emergency, application of emergency powers) by reviewing the state of emergency at regular intervals and/or suspending it. Judicial review may be limited to the procedural and/or substantive aspects of the declaration of the state of emergency, or it may also concern emergency measures adopted. 

Lastly, constitutions usually assess whether fundamental rights may be limited or even suspended by the exercise of emergency powers.[28] Constitutions may exclude the option to suspend rights in case of emergency,[29] may design a regime of limitation of fundamental rights while identifying a list of those that may not be subject to any restriction,[30] or may provide for a regime of suspension of certain fundamental rights.[31]

2.2.  Emergency provisions in international Treaties

In a different yet complementary fashion, international law accommodates emergencies by primarily relying on the capacities and powers of individual states.[32]

Major human rights treaties establish a regime for the derogation of specific rights, allowing state parties to temporarily adjust their treaty obligations during emergencies.[33] Derogation refers to the temporary relaxation of certain individual rights obligations by states, as permitted by law, in exceptional circumstances. Derogation clauses balance the protection of ‘reason of state’ during emergencies with the imperative to safeguard human rights also in times of extreme danger.[34] Noteworthy examples include Article 4 of the International Covenant on Civil and Political Rights (ICCPR), Article 15 of the European Convention on Human Rights (ECHR), and Article 27 of the American Convention on Human Rights (ACHR).[35]

Circumstances justifying a derogation are typically related to the life of the nation-state, such as war or other public emergencies that threaten the life, the independence, or the security of a State. They mostly coincide and tend to overlap with the activation of emergency powers at the national level.[36]

Procedural guarantees enshrined in the treaties, which pertain to the obligation of informing treaty bodies about the measures taken and the reasons behind them,[37] do not restrict the action of the international organization itself, but rather the State, pursuing its compliance with the treaty and upholding international jurisdiction over State actions. The obligation to notify a derogation to the necessary treaty body has the function of absolving the State from most of its obligations under the Treaties to the extent strictly required by the exigencies of the situation.[38] Furthermore, human rights treaties do not regulate the temporal duration of derogations, as this depends on national provisions regarding the state of emergency, nor do they regulate the system of checks and balances, as this is governed by national constitutions. 

Emergencies may also find a place in international economic law, where several safeguard clauses allow a state party experiencing a situation of difficulty to adopt measures that derogate from treaty commitments. As with derogation clauses in human rights Treaties, safeguard clauses in economic law aim to restore, rather than replace, the ordinary legal regime, temporarily relying on national capacities to manage emergency situations. A significant increase in imports, a disequilibrium in the balance of payments, sectoral or regional difficulties, or the protection of essential security interests may allow for the temporary and provisional reintroduction of tariffs or trade barriers.[39] An illustrative example is the Security Exceptions of Article XXI of the General Agreement on Tariffs and Trade (GATT), which allows a World Trade Organisation (WTO) Member to maintain a trade barrier measure taken in time of war or another emergency in international relations for the protection of essential security interests.[40] A notification-and-consultation system is designed to ensure transparency and compliance with international obligations, and to facilitate the restoration of ordinary conditions when the emergency has ended.

Far rarer are international law provisions regulating the activation and control of emergency powers within the International Organisation itself. The most relevant ‘exception’ is Chapter VII of the United Nations Charter, which establishes a system providing for the temporal suspension of ordinary provisions during certain states of exception. Under Articles 41 and 43 of the UN Charter, the Security Council, which has the primary responsibility for the maintenance of international peace and security, can issue binding resolutions authorizing the use of military force in specific circumstances.[41]

3.   From a system of safeguard clauses to a system of emergency clauses: the changing shape of EU emergency powers

3.1.  The centrifugal effect of safeguard clauses 

Models of constitutional accommodation may also be apt for analysing the EU Treaty framework.[42] Due to the hybrid nature of its legal system, located between a fully-fledged federation and an international organisation of sovereign states, the European Union’s approach to emergencies has drawn on both international and domestic constitutional models.

As primarily economic agreements, the EU Treaties initially addressed emergencies by relying on a system of safeguard clauses, which were widely present in the areas of economic policy, the customs union, the capital market, and trade policy.[43] These clauses were intended to protect state sovereignty by allowing Member States, in exceptional circumstances, to temporarily derogate in whole or in part from the Treaties, while simultaneously constraining their actions through a set of procedural rules and controls.[44] At a time when EU institutions were not yet equipped to handle crisis scenarios, the system of safeguard clauses was essential for protecting the functioning of the emerging Community and ensuring its survival by relying on national emergency interventions.[45]

Many safeguard clauses originally included within the Treaties were linked to the transitional period and gradually disappeared through successive Treaty amendments. This was the case with the general escape clause enshrined in Article 226 Treaty establishing the European Economic Community (EEC Treaty), which allowed a Member State facing serious economic difficulties to take safeguard measures to restore stability in the affected economic sector.[46] A reduced number of safeguard clauses have persisted to the present day, still providing the EU Treaties with the flexibility typically required by international agreements. Among others,[47] this is the case of Article 347 TFEU which currently reserves Member States the power to deviate from EU rules to protect public security interests in exceptional circumstances, such as serious internal disturbances, war, or state of international tension.[48]

An important use of safeguard clauses for managing emergencies also appears in the EU Acts of Accession, beginning with the first enlargement. While early Acts of Accession primarily included a general economic safeguard clause, later instruments (from 2003 onward) added specific internal-market and justice-and-home-affairs safeguard clauses.[49] These clauses have functioned as a safety net in the initial years of membership, facilitating smooth integration when serious problems arise and the acceding state is temporarily unable to fully rely on EU law. They protect both the acceding state and other Member States, which may be endangered by a distorted application of EU law during the transitional period following enlargement. For instance, the general economic safeguard clause has enabled new Member States, as well as the EU itself and other Member States, to adopt necessary protective measures, including limited derogations from EU law and the Act of Accession, where serious and persistent economic difficulties arise or where the economic situation of a particular region risks deteriorating.

3.2.  The centripetal effect of EU emergency powers

Along with the surviving safeguard clauses, the EU Treaties have progressively included provisions empowering EU institutions to adopt emergency measures for handling certain crisis scenarios. In the field of economic policy, the Treaty of Rome already included Article 143(2) TFEU and the precursor to the current Article 122(1) TFEU. The Treaty of Maastricht later revised Article 122(1) and added Article 122(2) TFEU. The Treaty of Amsterdam introduced Article 78(3) TFEU in migration policy, while the Treaty of Lisbon further strengthened the framework with Article 222 TFEU, known as ‘the solidarity clause’, and Article 42(7) TEU, known as the ‘mutual defence clause’, in the field of the Common Security and Defence Policy.

Some of these provisions have already been conceptualised as ‘emergency’ clauses.[50] Indeed, these legal bases are designed to regulate the emergency not normalcy, considering emergencies beyond the scope of ordinary EU actions. For this reason, they have begun to be studied together as a part of a unitary framework.[51] These emergency provisions differ from safeguard clauses, such as Article 347 TFEU, as they do not rely on national emergency powers to derogate from EU law in managing a crisis. Instead, they empower EU Institutions to adopt emergency measures rooted in EU law. They also differ from clauses such as Article 352 TFEU or 175(3) TFEU, as they rely on the emergency as a prerequisite for activation. Furthermore, these provisions do not preclude the EU from using other crisis management instruments, such as the recent Crises and Force Majeure Regulation in the field of Migration policy[52]or the Regulation to secure gas supply in the field of energy policy,[53] to address specific crisis scenarios. Rather, they provide an alternative pathway for the rapid adoption of EU emergency measures when other responses to crises are ineffective.

For the purposes of this investigation, it may be of interest to explore these provisions in more detail.

In the field of economic policy, Article 122(1) TFEU allows the Council, on a proposal of the Commission, to adopt by a qualified majority voting far-reaching economic policy measures. 

A post-pandemic reading interprets Article 122(1) TFEU as a legal basis for the development of EU economic policy, rather than merely as an emergency clause.[54] This novel perspective primarily seeks to address constitutional objections raised against the use of Article 122(1) TFEU as the legal basis for the European Recovery Instrument (EURI), one of the legal pillars of Next Generation EU (NGEU), which is considered legally problematic. Nevertheless, the long-accepted interpretation of this provision considers Article 122(1) TFEU of a purely emergency nature,[55] a position that is supported by the case law on the subject.[56] Accordingly, Article 122(1) TFEU is regarded as a general emergency provision of the economic policy, whereas Article 122(2) TFEU is interpreted as a lex specialis, specifically addressing emergency measures in the form of financial assistance.[57]

Circumstances of emergency textually align with the case of ‘severe difficulties’ in the supply of certain products that could jeopardize the economy of one or more member states.[58] The Article explicitly refers to a shortage in the area of energy, but its scope is broader, and it can also be invoked for measures of other sectors of economic activity. In Balkan Import-Export, the Court has highlighted that Article 122(1) TFEU must be invoked in circumstances of urgency, where no other legal basis would enable the Council to act in a timely manner to address the situation.[59] Emergency measures might be taken in response to specific, temporary, or situational circumstances, rather than structural or long-term solutions.[60]

Over the years, Article 122(1) TFEU allowed the EU to adopt a wide variety of emergency measures, some of which lie at the intersection between crisis management and emergency powers. Notably, it was first used for the establishment of a stock-holding mechanism of crude oil and petroleum, imposing on Member States the obligation to maintain minimum stocks of these essential energy products to protect the security of energy supply within the Union.[61] Then, the same legal basis served for the adoption of the emergency support instrument allowing the European Union to adopt emergency measures in response to natural or man-made disasters giving rise to severe, wide-ranging humanitarian consequences within the European Union.[62] During the pandemic, this provision has also ensured the supply of crisis-relevant medical countermeasures at the Union level.[63] Furthermore, the recent high risk of a complete halt in Russian gas supplies and the extreme increase in energy prices, which have significantly impacted the Union’s economy, have been considered such severe difficulties as to justify recourse to Article 122(1) of the TFEU for an emergency intervention in the field of energy.[64] Most recently, paragraph 1 of Article 122 TFEU, along with paragraph 2, was the much-debated legal basis of the EURI, which was one of the pillars of NGEU designed to address the economic consequences of the Covid-19 pandemic.[65]

While the Member States remain primarily responsible for their respective economic policies, Article 122(2) TFEU grants the Council, rather than the Member States,[66] the power to provide non-permanent financial assistance to a Member State in financial distress. Such assistance must be based on a proposal from the Commission and adopted by a qualified majority.[67]

 The crisis-oriented nature of Article 122(2) TFEU is widely recognized among legal scholars.[68] Emergency measures based on Article 122(2) TFEU must be temporary, as the Court indirectly highlighted in Pringle, given that the provision is not designed to establish a permanent financial assistance mechanism.[69] Several EU scholars also interpret the provision as a ‘counterweight’ or complement of the ‘no bailout clause’,[70] namely Article 125 TFEU, which makes certain forms of financial assistance normatively problematic within the Eurozone.[71]

Article 122(2) TFEU has been mostly employed to grant financial assistance in the form of loans or credit lines to Member States that were experiencing financing difficulties. A noteworthy example is the European Financial Stabilisation Mechanism (EFSM), which provided financial assistance to Ireland, Portugal, and Greece experiencing a severe deterioration of the borrowing conditions during the sovereign debt crisis.[72] This is also the rationale of the more recent Instrument for Temporary Support to Mitigate Unemployment Risks in an Emergency (SURE), which helped Member States mitigate unemployment and income loss during the COVID-19 lockdowns.[73] Breaking from the traditional paradigm, Article 122 TFEU recently served as the legal basis for the European Union Recovery Instrument (EURI), a key pillar of NGEU.[74] NGEU enabled the EU to borrow €750 billion from financial markets, which was then distributed through the EU budget to Member States in the form of conditional loans and non-reimbursable grants. 

Article 143(2) TFEU represents the oldest crisis legal basis in the EU Treaties.[75] This provision complements Article 122(2) TFEU by allowing the Council, upon recommendation of the Commission, to secure financial commitments in favour of the remaining non-euro-area Member States in difficulties or seriously threatened with difficulties as regards their balance of payments.[76]

Circumstances of emergency, which are outlined in the Article 143(1) TFEU as a prerequisite for activating a three-step procedure, involve actual or potential difficulties in a Member State’s balance of payments that reach a certain magnitude, meaning a Member State might be unable to fulfil its obligation under the internal market or to open its markets to products, services or investments from other EU countries.[77] Emergency measures under Article 143(2) TFEU are designed to avoid the Member State’s recourse to national derogation measures under Article 143(3) TFEU, and are temporary, as their sole aim is to restore the economic situation of the beneficiary Member State. 

Article 143(2) TFEU has historically been implemented through secondary legislation. The Council first introduced the medium-term financial assistance instrument in 1971, allowing the EU to grant limited credits to Member States experiencing the difficulties described in Article 143(1) TFEU.[78] This instrument has been modified several times. Since the adoption of the Facility providing medium-term financial assistance for Member States’ balances of payments (also known as the ‘BoP Regulation’ or ‘BoP Instrument’), Article 143(2) TFEU disappeared as a legal basis for the instrument, which now relies solely on Article 352 TFEU.[79] Through the BoP Instrument, the Council entrusted the Commission to grant, on behalf of the EU, financial assistance to Hungary, Latvia, and Romania in the early stages of the sovereign debt crisis. Conversely, Article 143(2) TFEU still appears as the preferred legal basis of the Council’s decisions granting mutual assistance under the BoP Instrument.[80]

In the field of migration policy, Article 78(3) TFEU establishes an extrema ratio provision that may be invoked only in the event of a sudden inflow of third-country nationals on such an unforeseeable scale that it renders the normal functioning of the EU common asylum system impossible.[81] Under this legal basis, the Council may adopt provisional measures at its discretion, based on a proposal from the Commission and a qualified majority vote. The concept of ‘provisional measures’ should be interpreted broadly, enabling the Council to adopt any measure necessary to respond effectively and swiftly to an emergency.[82] These measures may include instruments designed to provide financial, operational, and technical assistance, enabling the Union to respond to migration crises in the short term. Emergency measures must have a clearly defined temporal and material scope,[83] and they may neither aim to replace nor permanently amend provisions of legislative acts.[84]

Article 78(3) TFEU was invoked only once, during the 2015 refugee crisis, to assist Italy and Greece which were confronted with unprecedented arrivals of asylum-seekers. To alleviate the migratory pressure at their borders, the Council adopted two decisions setting up a temporary scheme, aiming for a fairer distribution and a more balanced sharing of responsibility for asylum-seekers who were already present in the EU.[85]

Lastly, the Treaty of Lisbon introduced two complementary mutual assistance provisions: the civilian ‘solidarity clause’ in Article 222 TFEU and the ‘mutual defence clause’ in Article 42(7) TEU, the latter having defence implications. Both provisions are designed to safeguard the political and economic survival of a Member State hit by a natural or man-made disaster, a terrorist attack, or an armed aggression when a national response is insufficient. These mechanisms are aligned with the policies into which they are integrated, resulting in significant differences in their functioning.

Article 222 TFEU places an obligation on the Union (paragraph 1) and its Member States (paragraph 2) to ‘act jointly’ in case of three types of threats, namely terrorist attacks, natural and man-made disasters but its scope may be broader.[86] In line with other emergency legal bases, Article 222 TFEU is a last-instance mechanism since it may be invoked only if the crisis exceeds the Member State’s response capabilities even after having used all the means at the State’s disposal.[87] Unlike Articles 122, 143, and 78(3) TFEU, whose activation depends on the Council’s discretion, the invocation of the solidarity clause by a Member State automatically obliges the EU and the Member States to adopt solidarity-based emergency measures. However, while the EU should mobilize all the instruments at its disposal, including military means, Member States remain free to determine the most appropriate means to comply with their solidarity obligations.[88]

Article 222 TFEU provides for both preventive action and ex-post assistance. Given that threats may not develop in a linear or progressive manner, the solidarity clause can be invoked to develop a risk and threat assessment at the Union level, as suggested by Article 222(4) TFEU, to activate a crisis management framework such as the EU Integrated Political Crisis Response, and to adopt new EU emergency measures. As far as it regards the latter function, Article 5(3) of Council Decision 2014/415/EU, which implements the solidarity clause, clarifies that the Commission and the High Representative shall submit proposals to the Council concerning the adoption of exceptional measures not foreseen by existing instruments, requests for military capabilities beyond the existing arrangements on civil protection, or measures in support of a swift response by Member States. This is where emergency powers come into play. Except where a decision has implications for the defence sector, as provided in Article 222(3) TFEU, the Council shall adopt emergency measures by qualified majority. However, since Article 222 TFEU has never been invoked, its potential remains largely unexplored.

In the field of Common Security and Defence Policy (CSDP), the mutual defence clause of Article 42(7) TEU introduces a legally binding obligation of aid and assistance between the Member States ‘by all the means in their power’ in the event of armed aggression. Unlike the solidarity clause, the mutual defence clause binds only the Member States, while the EU’s role is limited to the type of assistance required, as agreed directly between States.[89] This is because, contrary to NATO, the EU currently lacks the legal capacity to conduct operational military self-defence operations, so its role is confined to facilitating and coordinating the process when needed, for instance by enabling Member States to coordinate their action through the Council or the European Council. The attacked Member State can request such support, for example, with regard to coordinating the overall assistance. Institutional and scholarly critics have pointed out the lack of a procedural framework for both activating and deactivating the clause, while also advocating for the European Council as the appropriate forum for discussing its activation.[90]

The mutual assistance clause was invoked, for the first time, by France on November 17, 2015, in the wake of the terrorist attacks in Paris, during an already scheduled meeting of the European Defence Council. At that time, EU Defence Ministers expressed their ‘unanimous and full support to France and their readiness to provide all the necessary aid and assistance’.[91] Since the request for assistance, France held bilateral talks with the Member States to evaluate what kind of aid was available.[92] At the time, some countries expressed a willingness to join operations against terrorists in Syria and Iraq, whereas others preferred to increase their presence on other international missions.[93] Most recently, Sweden and Finland reminded the obligations outlined in Article 42(7) TEU a few weeks after the aggression against Ukraine began through a joint letter to the European Council.[94]

Overall, the increase in emergency clauses within EU primary law, and their subsequent use, has gradually altered the EU’s response to crisis scenarios. The reliance on a system of safeguard clauses reflected an early centrifugal tendency in European integration, representing a retreat to national law at a time when the incomplete stage of integration prevented EU Institutions from responding to exceptional circumstances.[95] In contrast, the increasing recourse to a set of emergency legal bases expresses a centripetal tendency, embodying the idea that the Union, rather than individual Member States, should increasingly be called upon to respond to emergencies. 

4.   Toward a supranational model of emergency powers

Despite their heterogeneity, these emergency legal bases share several features. This section highlights those commonalities that also parallel the core elements of national emergency constitutions, as discussed in Section 2. Together, these features form the main elements of an emerging system of EU emergency powers, which we refer to as the ‘supranational model’. 

Firstly, this set of provisions identifies circumstances that may activate EU emergency powers. As in the case with many European constitutions, the emergency provisions examined here rather identify and delimit specific types of emergency and tailor distinct emergency regimes to them. This includes a natural or man-made disaster under Article 222 TFEU, difficulties arising in the supply of certain products affecting the economic policy of the Member States under Article 122(1) TFEU, an economic shock or a severe disequilibrium in the balance of payments of a Member State in the meaning of Articles 122(2) and 143(2) TFEU, a sudden and unforeseeable inflow of a third country national at the EU external borders under Article 78(3) TFEU, threats to the security of a Member State as armed aggression or a terroristic attack in the case of Article 42(7) TEU and Article 222 TFEU. The legal distinction between emergencies and ordinary times should limit and ideally prevent the invocation of these emergency provisions as a pretext to circumvent obligations under EU law in normal periods. 

Secondly, this system regulates the conferral of emergency powers on the European Union and their exercise. Even in emergency contexts, the EU may act only within the limits of the competences conferred on it by the Member States. The choice of legal basis is crucial to determining the applicable procedures and the types of measures permitted. 

EU emergency powers are subsidiary to those of the Member States, meaning that the Union becomes involved only when Member States are unable to address an emergency effectively on their own.[96] The threshold of threat severity required to activate EU emergency powers seems to be met when an emergency exceeds a Member State’s capacity to respond, potentially causing spillover effects in other member states and, more broadly, across the EU. For example, financial assistance delivered under Article 122(2) TFEU may in principle be granted only when a Member State is facing severe difficulties caused by natural disasters or exceptional occurrences which are ‘beyond its control’. Similarly, mutual assistance under 143(2) TFEU may be granted only when, as provided in Article 143(1) TFEU, ‘the action taken by a Member State with a derogation and the measures suggested by the Commission do not prove sufficient to overcome the difficulties which have arisen or which threaten’. Emergency measures under Article 122(1) TFEU may be adopted in cases of ‘severe difficulties’, where the urgency of the situation would not allow to act otherwise in a timely manner.[97] Likewise, provisional measures under Article 78(3) TFEU may be adopted in response to a sudden inflow of third nationals that renders the normal functioning of the EU common asylum system impossible, suggesting that the situation exceeds the capacity of a Member State to control and address it.[98] Moreover, the prerequisite for activating the solidarity clause under Article 222 TFEU and adopting related emergency measures is that a Member State ‘considers that the crisis clearly overwhelms the response capabilities available to it’.[99] As far as regards Article 42(7) TEU, the activation threshold is an ‘armed aggression’ on the territory of a Member State.[100] In the context of the CSDP, the latter provision serves to deter an attack by signalling a readiness to provide a coordinated and, presumably, more effective response to any potential aggressor.

Thirdly, EU emergency powers impact the EU institutional balance. Articles 78(3), 122 (1) and (2), 143(2) TFEU entrust the Council with the power to adopt emergency measures by qualified majority. The Council thus combines the intelligence of all national executives, which are expected to move faster in the face of a crisis scenario, while its representatives are also indirectly linked to domestic electorates.[101] Similarly, Article 222(2) TFEU read in conjunction with Article 5 of Council Decision 2014/415/EU TFEU confers on the Council the political and strategic direction of the Union’s emergency response by qualified majority. Because of the current design of the Common Security and Defence Policy, Article 42(7) TEU confers the Council only the role of fostering coordination among the Member States in order to reach an intergovernmental agreement, as happened in the wake of the 2015 terrorist attack in Paris. 

The European Council has emerged as the de facto compass of the EU in emergencies, which calls for a break from ‘normalcy’ and triggers the ‘emergency’. A rational explanation may derive from the fact that choices made during times of emergency are crucial for national sovereignty. During major EU crises, significant decisions were first discussed and largely shaped by the European Council. Notable examples include the sovereign debt crisis, where financial assistance measures were initially coordinated at intense Euro summits.[102] Similarly, during the COVID-19 pandemic, the landmark decision to adopt a recovery plan for Europe through the issuance of common debt was first agreed upon and announced by the European Council.[103]Likewise, in the 2015 migration crisis, the European Council decided on the ‘temporary and exceptional relocation over two years’ of 40,000 asylum seekers from Italy and Greece to other EU Member States, urging the Council to swiftly adopt a formal decision to this effect.[104] The European Council has thus become the centre of gravity of the EU’s emergency response.[105]

The Commission retains the power of initiative while it is also entrusted with the executive management of emergency instruments. This choice derives from its ability to respond speedily and flexibly to immediate challenges and its better access to expertise. In the context of the EFSM, the BoP Instrument, the SURE, and the EURI, the Commission is empowered to carry out borrowing and lending operations. In the context of the 2015 Council Relocation Decisions, the Commission acted as a coordinator, monitor, and enforcer of the emergency measures.

Overall, this system makes political the choice to identify and address an emergency at the EU level and technical its management.

The current model sacrifices democratic control over EU emergency measures. Inherent constraints of parliamentary deliberation and the co-decision procedure may thus hinder a rapid and flexible emergency action. Under Articles 78(3), 122(2), and 222(3) TFEU read in conjunction with Article 5(3) of the Council Decision 2014/415/EU the European Parliament shall only be informed or consulted whereas it is completely excluded from the procedure laid down by articles 122 (1) and 143(2) TFEU and, because of the institutional design of the CSDP, by the procedure lays down in Article 42(7) TEU. Democratic oversight is additionally sacrificed at the national level by the non-legislative nature of emergency measures adopted under Articles 78(3), 122(1) and (2), 143(2) and 222 TFEU. Accordingly, the proposal of the Commission does not need to be sent to national parliaments under Protocol No. 1, the national parliaments’ subsidiarity scrutiny according to Protocol No. 2 is not applicable, the deliberations in the Council are not public, and the balance between the transparency and confidentiality of the decision-making procedure, when assessing requests for access to documents, will favour the latter.[106] Nevertheless, it must also be considered that the European Parliament’s limited involvement does not expose the Union to the risk of centralized or despotic control, such as may arise in the context of emergency powers exercised by national executives. This is because, within the Union, power is shared across multiple centres of authority, and within the Council, among different member states.

Fourthly, these emergency legal bases establish legal limits on the scope and intrusiveness of emergency measures. Emergency measures are exceptional, as they can only be triggered when all other available means prove insufficient to manage a crisis. Additionally, they are time-limited, remaining in effect only until the emergency ceases.

While the institutional practice may not be decisive, it suggests that emergency measures can either be tailored to specific crisis scenarios or implemented through emergency frameworks that operationalize the legal bases when an emergency arises. The institutional practice also suggests that the temporary nature of these measures excludes their permanence but does not preclude the establishment of a related emergency framework. Examples of the former include the SURE program, which was in effect for two years;[107] the 2015 Council Relocation Decisions, which were in force for almost two years;[108] and the gas solidarity measure, initially intended to last one year but later extended for an additional twelve months.[109] In the latter case, examples are provided by the recent framework for ensuring the supply of medical countermeasures, which can be activated during a public health emergency for a maximum period of six months, with a specific procedure governing the potential prolongation of the measure;[110]the BoP Instrument, which regulates the granting of mutual assistance to non-euro Member States;[111] the EFSM follows the same path, as it still exists, although it has been functionally replaced by the ESM.

Furthermore, since the scope and reach of these emergency measures are limited to specific emergency scenarios, ordinary rules should resume once these measures cease.[112] An example is the no-bail-out rule set out by Article 125 TFEU, which bans financial assistance to Member States under Article 122(2) TFEU in ordinary times, returning to apply once financial assistance measures end. This is also the case of the criteria for determining the Member State responsible for examining an asylum application under the Dublin Regulation, which returned to apply once the 2015 Council Relocation Decisions ended.[113]

Fifthly, Articles 78(3), 122(1) and (2), 143(2) and 222 TFEU maintain judicial review over EU emergency measures. When a provision allows the Council to adopt emergency measures to face a crisis scenario, it is a requisite of institutional separation that the Court refrains from substituting its own choice for the Council’s broad discretion.[114] The Court of Justice may thus be called to question the legality of emergency measures when discretion cloaks arbitrariness, meaning a ‘manifest error’. This may be the case of excessive intrusiveness when the policy goals could have been achieved with a less intrusive measure than the one adopted, or excessive duration. By contrast, it seems beyond the Court’s scrutiny to evaluate the ‘optimal model’ of the response to an emergency. An illustrative example is provided by Slovak Republic and Hungary v. Council, where the Court dismissed the attempts of two Member States to annul the Council Decision 2015/1601 by rejecting the existence of a ‘manifest error of assessment’ with regard to both the period of application and the choice of the measure adopted by the Council to address the sharp increase in the inflow of third-country nationals to Italy and Greece in 2015.[115] Likewise, in Balkan Import/Export the Court recognised to the Council a broad discretion as regards the choice of measures to be adopted under Article 122(1) TFEU.[116]

A different conclusion may be reached with regard to Article 42(7) TEU, as the Court’s scrutiny over measures adopted within the context of CSDP is strongly limited by Article 24(1) TEU and Article 275 TFEU. This limits the mechanisms for monitoring and ensuring the fulfilment of the mutual assistance obligations incumbent on Member States, significantly weakening them.[117]

Lastly, the system contains implicit limits on the encroachment of emergency measures upon fundamental rights. In a domestic setting, emergency powers typically target individuals and can potentially rely on the use of force to implement emergency measures. Conversely, at the EU level emergency powers are designed to address interstate relationships and their enforcement eventually relies on the acquiescence of states.[118] Nevertheless, an intricate issue at hand pertains to whether, while relying on its emergency powers, the Union’s Institutions may limit or suspend the rights safeguarded by the Charter of Fundamental Rights. In this regard, it is worth noting that no derogation clause comparable to Article 15 of the European Convention on Fundamental Rights is enshrined in the Charter. Furthermore, the rights enumerated in the Charter do not contain emergency exceptions. This suggests that by no means can the EU adopt emergency measures that partially or totally suspend its mandate to respect fundamental rights resulting from Article 51(1) of the Charter. 

A different argument can be presented for limitations on the exercise of certain fundamental rights as provided under Article 52(1) of the Charter. The Court of Justice has already clarified that the Union, not just the Member States, may in principle impose limitations on fundamental rights if they are adopted in the general interest and do not represent a disproportionate and unreasonable interference undermining the substance of the rights concerned.[119] Doubts might arise around the opportunity to consider emergency measures, that are non-legislative in nature, as ‘law’ in the meaning of Article 52(1) of the Charter.[120] On this point, the CJEU has already affirmed that the ‘provided for by law’ requirement can be satisfied by EU non-legislative measures.[121]However, arguments related to the lack of democratic control over emergency measures both at the EU and at the national level, along with factors of urgency and necessity, recommend caution when permitting such measures to directly impact fundamental rights potentially within the whole of the Union. Under the EU model of emergency powers, temporary restrictions on fundamental rights may be permissible but, in the light of the above considerations, they should be subject to a strict proportionality assessment.

5.   Current challenges and perspectives of reform

EU emergency powers have recently become a topic of institutional concern. In September 2023, a joint group of German and French experts presented an independent report suggesting, among other recommendations, the necessity of improving the ‘EU capacity to act’ by increasing EU competencies and expanding emergency provisions.[122] One of the main proposals is an amendment to Article 122 TFEU, although the report remains somewhat vague on how this could be implemented.

Shortly after, the Committee on Constitutional Affairs (AFCO) of the European Parliament delivered a more tangible option to reinforce EU powers in times of emergency.[123] Along with the strengthening of the European Parliament’s involvement in emergencies, including in the context of Article 78(3) TFEU, the proposal suggests the suppression of the whole Article 122 TFEU and its replacement by a new emergency clause placed in a new first paragraph of Article 222 TFEU. More specifically, under Amendment No. 186, the European Parliament or the Council might grant the Commission ‘extraordinary powers’ in the event of an ‘emergency’ affecting the European Union or one or more Member States, enabling the recourse to ‘all necessary instruments’. It would be the same decision triggering EU emergency powers which would also define their scope, detailed governance arrangements, and duration. While the adoption of emergency powers might be subject to a tailored co-decision procedure with the European Parliament and the Council voting by a qualified majority, the revocation of those powers might be adopted at any time by each institution voting by a simple majority. The same procedure for the declaration of a state of emergency might also be used to review or renew it at any time.

The European Parliament’s proposal would significantly impact the current model of EU emergency powers by explicitly inaugurating the emergency paradigm within the Treaties. The new Article 222(1) TFEU would formally introduce a ‘state of emergency’, the declaration of which should permit and facilitate an EU response that would not otherwise be possible under normal conditions. Under the new Article 222(1) TFEU, the European Parliament and the Council would retain plein pouvoir,[124] in identifying what constitutes an emergency, and to design extraordinary powers, including their scope, functions, and duration, as the ‘all necessary instruments’ formula suggests. This design would create constitutional space for legal solutions that might not otherwise fit with existing rules, thereby avoiding further recourse to the ‘liminal practices’ that are already highlighted in legal scholarship as the result of the unclear nature of the EU’s emergency powers framework.[125]

One example is the practice of rule-bending, which involves departing from legal norms during crises or reinterpreting them to extend their boundaries.[126] Some scholars argue that this practice is evident in the recent use of Article 122 TFEU tout court as the legal basis for the EURI, the central pillar of the NGEU, which supports economic recovery by specifying the purposes for which funds borrowed on capital markets are to be used.[127] This choice has raised several concerns, including an insufficient link between the triggering emergency and the measures adopted, an overextension of the competences outlined in Article 122(1) and (2) TFEU, and a conflict between the temporary nature of the emergency instrument and the goal to address economic disparities within the EU.[128]

Answering current criticisms,[129] the European Parliament’s proposal would increase transparency in EU emergency management, clarifying institutional roles and emergency actions to be adopted. It would also increase the European Parliament’s control over emergency management, conferring democratic legitimacy to emergency measures, while maintaining a presumably light EU judicial scrutiny over those measures.[130] This would also be achieved through greater parliamentary involvement in the procedure outlined in the revised Article 78(3) TFEU (Amendment No 100), where the European Parliament would gain the power of initiative.

Nevertheless, despite its promises, the new emergency framework may also create new problems.

One criticism is that the new clause would not provide any definitional elements to classify an emergency as a legal concept,[131] nor does it delegate this task to another legal act. It also fails to describe the inherent characteristics of a state of emergency, such as exceptionality, seriousness, suddenness, or urgency. While this option may broaden the governance of emergencies under EU law, it would also introduce ambiguity, hinder the ability to tailor and, at the same time, limit the powers made available under the new EU emergency regime. Furthermore, natural disasters presumably call for the exercise of emergency powers that are distinct from those that may be necessary to face an economic crisis. Both situations may be distinguishable from armed aggression. While the current emergency system modulates the Union’s emergency responses based on the competencies involved, an emergency clause such as the one proposed by the European Parliament would potentially allow EU Institutions to face varying degrees of crisis scenarios with an equal firepower mechanism. 

These issues are further compounded by the fact that, in stark contrast with other crisis-related legal bases, the new emergency clause would not require an emergency scenario to be ungovernable by a Member State for its activation. As a result, it could create coordination challenges with Member States’ actions in emergencies.[132] The principles of loyal cooperation and subsidiarity suggest that the EU’s action could complement that of Member States in emergencies, allowing coordination between the two.[133]While this is a viable approach, it may also be considered that a Member State’s response could diverge from the EU’s interests, particularly in emergencies, as seen during the initial phase of the COVID-19 pandemic. Urgency may hinder the vertical coordination of emergency actions, which is why an emergency clause should clearly define coordination issues. For this purpose, the new emergency regime could be refined through the introduction of a mechanism similar to those in Articles 42(7) TEU and 222 TFEU, allowing a Member State to activate the emergency provision and thereby making EU emergency action complementary to the Member State’s response. Alternatively, if the discretion over activation is to remain with EU institutions, a ‘beyond control’ option could be incorporated into a new emergency clause, as is currently provided in Article 122(2) TFEU.

Furthermore, the new emergency clause could create coexistence issues with other emergency legal bases. While the new Article 222(1) TFEU will absorb emergencies currently governed by Articles 122(1) and (2) TFEU, which will be repealed, the relationship with Article 42(7) TEU, Articles 78(3) and 143(2) TFEU, and the current Article 222 TFEU would remain undefined. Some scholars have already suggested that the new Article 222(1) TFEU would function as a lex generalis, not only in relation to the rest of Article 222 TFEU[134] but also with regard to other emergency clauses.[135] However, since the clause emerges from the perceived necessity to expand the scope of current crisis legal bases, including Article 122(1) and (2) TFEU, a historical reading may suggest the new emergency clause has been designed as a flexibility clause for emergencies, granting EU Institutions a wider margin of maneuver through a sui generis procedure. This flexibility clause for emergencies would represent an alternative to other crisis legal bases, offering another procedure to manage emergencies within the EU legal framework. However, unlike the flexibility clause in Article 352 TFEU, the scope and limitations of the new emergency clause would remain undefined.

Another criticism concerns the limited judicial review over emergency measures. As it has already been said, the clause seeks to reinforce the emergency paradigm, namely constitutional accommodation, into the treaty framework. This paradigm requires to quarantine the emergency as a way to protect the restoration of normalcy.[136] However, the absence of clear legal boundaries surrounding the exercise of new emergency powers, such as the events that may trigger it, the competences that may be activated (or not), and the types of emergency measures to be adopted, significantly increases the legislator’s margin of discretion while correspondingly reducing judicial scrutiny over these discretionary choices.[137]

Lastly, the European Parliament’s proposal does not specify the legal nature of new EU emergency measures or their potential impact on the protection of fundamental rights.[138] While the introduction of ex-ante parliamentary control over such measures could increase consideration of their effects on fundamental rights,[139] this alone is not sufficient to rule out the possibility of violations or disproportionate restrictions. The need to assess these circumstances textually becomes all the more important as the scope and intrusiveness of the Union’s emergency powers potentially expand.

Overall, the European Parliament’s proposal for an EU emergency clause appears to require some further refinements. 

A constructive way forward might be to amend Article 122(2) TFEU while preserving its operational potential.[140] Drawing from past experiences, an expansion of its scope, whether within the context of economic policy or beyond, could be debated. Such an option would require an evaluation of how the EU may or may not act in emergencies within the framework of Article 122(2) TFEU, addressing concerns raised in institutional and academic circles with parliamentary oversight. In doing so, it would avoid the carte blanche approach suggested by the reform of Article 222 TFEU, which merely postpones parliamentary debate over these limits in an emergency context, where urgency may hinder careful ponderation of interests at stake.

Another option can be seen in the case of public health, where an emergency legal basis, ideally located in Article 168 TFEU, could grant the EU the authority to adopt a broad range of measures in response to an epidemic or pandemic, ensuring the protection of EU citizens against cross-border health threats. This could include binding, risk-based, local, and temporary measures to contain the spread of a virus, particularly when national measures prove insufficient. These emergency powers may supplement the post-pandemic crisis management framework, strengthening EU emergency action through more streamlined procedures and the adoption of time-limited measures that may derogate from ordinary ones. 

Still, an option arises in the case of external security and defense, which are proposed to be added to the list of shared competences.[141] For instance, Amendment No. 55 of the EP proposal to Article 42(7) TEU suggests that these powers could apply to the Defence Union, where, in the event of armed aggression, the obligation of mutual assistance would extend not only to the Member States but also to the Defence Union itself. This change would also enable a permanent rapid deployment capacity under the Union’s operational command. 

These proposals would align with the trajectory of the emergency paradigm already suggested by the European Parliament’s proposal, while maintaining consistency with the emerging supranational model of emergency powers.

6.   Conclusions

Emergency powers are not solely a matter of constitutional provisions. They also encompass the constitutional culture that informs their interpretation. As has already been noted, in the supranational context, the emergency paradigm rarely serves as a regulative ideal.[142] The justification provided relates to the facts that the EU seldom opts for a temporal suspension of the normally valid rules according to legal procedures, preferring instead to resort to extra-legal executive self-empowerment, which extends its power into a grey zone.[143] This approach might help to explain why, despite the Treaties providing a de facto model of emergency powers, it has hardly been recognized as such by actors involved.[144] A comprehensive interpretative practice that actively engages with emergency provisions enshrined in the Treaties as a cohesive system of emergency powers has yet to fully develop. This gap is the space of the present reflection.

By conducting a systemic interpretation of the Treaties, this paper examines the features that unify a set of existing emergency legal bases, namely Article 42(7) TEU, and Articles 78(3), 122 (1), and (2), 143(2) and 222 TFEU, into a cohesive system. While these provisions coexist with other instruments applicable in the context of emergencies, they also may be understood as establishing a core framework of emergency powers that shapes the EU’s response to crises. The analysis highlights how these provisions encapsulate the key definitional elements of an emergency constitution, including the conditions for declaring an emergency at the EU level, the authority responsible for such declaration, the actors granted special powers during emergencies, the nature of EU emergency measures, their impact on fundamental rights, and the mechanisms for legal oversight. This legal geography constitutes what has been defined as the supranational model of emergency powers. 

Approaching these rules as a system, rather than as isolated legal bases, offers several legal advantages. It provides contextual meaning to each emergency provision within the Treaties, clarifies the often-blurred distinction between normalcy and emergency in the EU legal order, and helps prevent the persistence of crisis-driven measures and interpretations beyond the emergency period. A systemic approach also enables a clearer definition of the prerequisites for activating and implementing EU emergency powers, as well as the interpretative challenges in selecting the appropriate legal basis for emergency measures.[145] Finally, the supranational model of emergency powers may serve as a critical tool for assessing future Treaty reform aimed at enhancing the EU’s capacity to act while preserving coherence with the existing legal framework.