Rethinking EU Emergency Law : Towards a General Supranational Emergency Clause?

The present chapter will inquire into the need to introduce a ‘full-fledged’ emergency clause into EU primary law. Such a clause could be triggered to handle unexpected situations requiring a supranational intervention. Many countries worldwide have emergency clauses in their constitutions, which may be activated to declare a state of emergency, temporarily suspending ordinary constitutional rules and safeguards. This is not the case in the actual EU constitutional framework, probably because of the implications such a clause would entail for the scope of Member States’ sovereignty and the allocation of (emergency) competencies between the Member States and the European Union. In this regard, reference can be made, of course, to the famous incipit of Carl Schimtt’s Political Theology, where the political philosopher states that ‘Sovereign is he who decides on the exception’, meaning that the sovereignty is revealed by the decision on the state of exception (Ausnahmezustand).