by: Daniel Calleja, Tim Maxian Rusche, Trajan Shipley*
“Europe will be forged in crises, and will be the sum of the solutions adopted for those crises”
Jean Monnet[1]
INTRODUCTION
Since 2008, the Union faced a series of crises. The response – sometimes after initial attempts by Member States to “go it alone” – was ultimately always found at the level of the Union, within the existing EU Treaties, as they stood after the Treaty of Lisbon, and entailed new tasks and new responsibilities for the Union.[2]
Sometimes, available legal options were straightforward: The Europeanisation of banking supervision relied on the traditional power to regulate the internal market.[3] More often than not, finding solutions required deeper legal reflection. One treaty provision, Article 122 TFEU, has emerged as central.[4] It endows the Council with non-legislative emergency powers. Its recent use has attracted attention[5] and triggered questions: What are the boundaries when proposing and adopting measures on its basis? What are precisely the conditions under which recourse to it is permissible? As the Union is faced with what has been described a “polycrisis,”[6] it is important to provide answers.
[1] JEAN MONNET, MEMOIRS 417 (Richard Mayne trans., Doubleday 1978).
[2] As the Commission put it: “The EU institutions and the Member States have agreed throughout this Commission’s mandate to use the full potential of the EU treaties . . . “ Commission Communication: Putting Vision into Concrete Action, at 4, COM (2022) 404 final (Jun. 17, 2022). See also Daniel Calleja and Clemens Ladenburger, The Future of European Union Law, in 70 YEARS OF EU LAW: A UNION FOR ITS CITIZENS 377, 379 (Publications Off. of the European Union, 2022). The only exceptions are the creation of the European Stability Mechanism (ESM) and the raising of levies for the Single Resolution Fund. See infra note 3. See on the ESM as outlier Alexander Schilin, EU or Euro Area Crisis ? Studying Differentiated Integration asan Idea Structuring Elite Perceptions of the Sovereign Debt and the COVID – 19 Crisis, in 46 J. EUR. INTEGR., 47-68.
[3] There are two innovative elements: giving banking supervision to the ECB and creating the Single Resolution Fund, based on levies raised by the Member States and transferred to the Union via an international agreement. For the levies, a Union law solution is possible. See Federico Fabbrini, On Banks, Courts and International Law: The Intergovernmental Agreement on the Single Resolution Funds in Context, 21 MAASTRICHT J. OF EUR. & INT’L L. 444, 444–63 (2014). See also Paul Weismann, Public International Law as a Refuge of (Euro-)Member States During the Financial and Economic Crisis: The Case of the Intergovernmental Agreement on the Transfer and Mutualisation of Contributions to the Single Resolution Fund (IGA), 40 Y.B. OF EUR. L. 335, 335–73 (2021).
[4] Bruno De Witte, Guest Editorial: EU Emergency Law and its Impact on the EU Legal Order, 59 COMMON MKT. L. REV. 3, 6 (2022) (qualifying Article 122 TFEU, together with Articles 78(3) and 107(3)(b) TFEU, as the three “Emergency competences of the Union”). See also Hiopoulou-Penot, L’instrument pour la reliance Next Generation EU: “Where there is a political will, there is a legal way ”?, REVUE TRIMESTRIELLE DE DROIT EUROPÉEN, 527, 527-43 (2021) (claiming that the “belle au bois dormant” has been kissed awake). Chamon writes on “The rise of Article 122 TFEU: On crisis measures and the paradigm change”, <verfassungsblog.de/the-rise-of-article 122-tfeu> (last visited 11 Jul. 2023).
[5] See Virginie Malingre, L’article 122, le « 49.3 » de l’Union européenne, LE MONDE (Feb. 1, 2023), https://www.lemonde.fr/international/article/2023/02/01/l-article-122-le-49-3-de-l-union- europeenne_6160038_3210.html; Thomas von Kirchner, Mal schnell am Parlament vorbei, SÜDDEUTSCHE ZEITUNG (May 22, 2023), https://www.sueddeutsche.de/politik/eu-krise-demokratiedefizit- reform-1.5874409.
[6] See, e.g., Christian Calliess, The Future of Europe after Brexit: Towards a Reform of the European Union and its Euro Area, 40 Y.B. of Eur. L. 3, 3(2021); Markus Ludwigs, Unionsrechtliche Rahmensetzung zur Bewältigung der Energiekrise: Die EU-Notfallkompetenz auf dem Prüfstand, EUROPÄISCHE ZEITSCHRIFT FÜR WIRTSCHAFTSRECHT, 506, 509 (2023); Hiopoulou-Penot, supra note 4; MARKUS LUDWIGS & STEFANIE SCHMAHL, DIE EU ZWISCHEN NIEDERGANG UND NEUGRÜNDUNG: WEGE AUS DER POLYKRISE (Nomos Publishing, 2020); Pierre Bocquillon, Setting the European agenda in hard times: the commission, the European Council and the EU polycrisis, in 46 J EUR. INTEGR. 567, 567-574 (2024).
*Daniel Calleja is the Director-General, Tim Maxian Rusche Legal Advisor of the Legal Service of the Commission. Trajan Shipley was a trainee at the office of the Director-General. The views expressed are personal and cannot bind in any way the Commission. The authors would like to thank Fabienne Gielen for her outstanding research, in particular on the preparatory works and early academic writing, and Yona Marinova, Freya Van Schaick, Clemens Ladenburger, Jean-Paul Keppenne, Marc Van Hoof, Leopold Mantl and Tibor Scharf for comments on earlier versions of this article.
Published in CJEL Vol. 29 issue 3.
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Also published in Vol. 29 issue 3:
Good Administration in AI-Enhanced Banking Supervision: A Risk-Based Approach, by Alessio Azzutti, Pedro M. Batista, Wolf-Georg Ringe
Third Country Nationals in the EU: From Invisible Others to Potential Key Players in the European Integration Process, by Dora Kostakopoulou
