Does Europe Need an Emergency Constitution?
| Author | Christian Kreuder-Sonnen |
| DOI | http://doi.org/10.1177/00323217211005336 |
| Published date | 01 February 2023 |
| Date | 01 February 2023 |
| Subject Matter | Articles |
https://doi.org/10.1177/00323217211005336
Political Studies
2023, Vol. 71(1) 125 –144
© The Author(s) 2021
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DOI: 10.1177/00323217211005336
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Does Europe Need an
Emergency Constitution?
Christian Kreuder-Sonnen
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.
Keywords
emergency politics, European Union, crisis, legal order, constitutionalism
Accepted: 1 March 2021
Introduction
The euro crisis revealed a profound democratic predicament in the contemporary state of
European integration. On the one hand, processes of economic, political, and social inte-
gration have created a political order marked by complex and often self-reinforcing inter-
dependencies. That is, decisions to integrate a policy field and delegate political authority
to an institution of the European Union (EU) often set in motion interactive processes that
require further EU-level regulation or intervention (see Hale et al., 2013). On the other
hand, however, the process of European integration and the increasingly expansive politi-
cal authority enjoyed by EU institutions also increased the politicization of the EU in
general and of authority transfers in particular, rendering further integration more and
Institute of Political Science, Friedrich Schiller University Jena, Jena, Germany
Corresponding author:
Christian Kreuder-Sonnen, Institute of Political Science, Friedrich Schiller University Jena, Carl-Zeiß-Str. 3,
07743 Jena, Germany.
Email: christian.kreuder-sonnen@uni-jena.de
1005336PSX0010.1177/00323217211005336Political StudiesKreuder-Sonnen
research-article2021
Article
126 Political Studies 71(1)
more difficult (Hooghe and Marks, 2009). In the early 2010s, functional pressures
demanded fiscal integration to attend the common currency, yet pathways of formal con-
stitutional change to introduce such capacities were largely blocked by the constraining
dissensus among European publics (see also Börzel and Risse, 2018).
In the case of the euro crisis, this impasse was overcome only by way of emergency
politics, a mode of rule in which extraordinary acts of authority that break with estab-
lished norms and rules are justified as necessary to cope with exceptional circumstances
(see White, 2015b: 302–303). Concretely, in order to fill the functional gaps in the EU’s
authority structure, European decision-makers sought to circumvent public dissent and
legal hurdles by resorting to emergency measures outside the legal framework of the EU,
by foisting off most delicate political interventions to the politically independent—and
democratically unchecked—European Central Bank (ECB), and by resorting to a politics
of domination vis-à-vis weaker member states in need of financial support (Joerges, 2014;
Lokdam, 2020; Scicluna, 2018; White, 2015b).
Such forms of exceptionalism have increasingly taken hold in the governance reper-
toire of the EU and its member states, extending well beyond the euro crisis. The migra-
tion crisis, for instance, saw the exceptional empowerment of Frontex/the European
Border and Coast Guard to conduct extra-legal pushback operations on the Mediterranean
and at land borders. It also gave rise to the circumvention of European constitutional
constraints by involving NATO and delegating the implementation of contentious poli-
cies to Turkey and Libya (White, 2019: 81–82). During the coronavirus crisis, European
emergency politics reemerged. The multilateral emergency structures created in the euro
crisis, such as the European Stability Mechanism (ESM), the reliance on the informal
Eurogroup, and recourse to emergency summitry, were reactivated. Moreover, the health
crisis incited the ECB to establish the Pandemic Emergency Purchase Program (PEPP),
the latest reinforcement of the bank’s exceptional role of lender of last resort to Eurozone
sovereigns. And finally, the economic recovery fund, explicitly introduced as an “excep-
tional measure,”1 broke with a foundational norm of the Economic and Currency Union
by incurring communalized debt.
Emergency politics is nothing new in itself. In the nation-state context, it has been
discussed for centuries as part of debates about the state of exception or state of emer-
gency (e.g. Gross and Ní Aoláin, 2006). In settings beyond the state, however, emergency
politics takes on peculiar forms with distinctive consequences. One important difference
is that supranational political orders largely fail to recognize and accommodate the emer-
gency problematique institutionally. While domestic constitutions typically include con-
crete emergency provisions, there are hardly any rules governing emergency conduct in
the EU or other international organizations (IOs)—and where there are, they hardly fol-
low the regulative ideal of emergency powers (Kreuder-Sonnen, 2019: 198; Schott,
2008). The transnational politics of emergency is largely unregulated. As I argue in this
article, the unregulated nature of European emergency politics is prone to creating con-
siderable short- and long-term costs to democracy and constitutionalism. Not only does
unregulated emergency politics open the door to the exercise of unchecked power, it is
also likely to leave permanent marks on the EU’s authority structures that undermine its
democratic legitimacy.
The COVID-19 pandemic underscores that transboundary crises may require collabo-
rative solutions at the global and European levels that defy the application of conven-
tional rules and procedures. Future crises are no less likely to demand EU-wide responses
that are hard to reconcile with the polity’s partial integration. If a transnational politics of
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