Does Europe Need an Emergency Constitution?

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.