What’s in a Name? European Uses of States of Exception During COVID-19

Abstract

AbstractThe COVID-19 pandemic has led a large range of European governments to rely on emergency powers to try to contain the pandemic. While emergency legislation grants the executive with more extensive powers to handle an immediate threat to the survival of a community, the extent of such powers, their modalities of activation as well as the monitoring and other roles of counterpowers vary from one country to the next. This chapter analyses the diversity of practices and legal provisions hidden behind the reference to a “state of emergency.” It first shows that the legal basis of such provisions differs. While some governments activated constitutional provisions, others relied on pre-existing crisis-management legal frameworks. Second, the timing and duration of emergency measures ranged from 65 days (Estonia) to 861 (France). It then assesses whether differences in the legal framework used translated into differences in the stringency of the measures introduced. On the one hand, state of emergency provisions shield democracy against a concentration of powers in the hands of the executive better than disaster-management legislation does. On the other hand, the activation of emergency powers also coincides with more stringent restrictions of fundamental rights. In strengthening legal preparedness to future crises, policy makers need to be particularly cautious in devising legal arsenals that maintain high levels of democratic governance and oversight in crisis times.