Article 122 of the Treaty on the Functioning of the European Union is the legal basis for the Union to adopt exceptional measures in situations of economic emergency or natural disasters. These measures require only a proposal from the European Commission and a qualified majority vote in the Council.
The article aims to guarantee solidarity among member states and respond to situations that can’t wait for the EU’s often burdensome processes to act at their habitual pace. Its application, however, stirs controversy regarding the role played by the only institution directly elected by European citizens: the European Parliament.
Article 122 has increasingly marginalised the EP’s role in crisis management: It has been turned from a consulted participant into a VIP spectator. This tension between operational efficiency and accountability has been a constant whenever the EU has activated its emergency response mechanism.
The euro crisis in the early 2010s saw Article 122 used to implement the regulation establishing the European Financial Stabilization Mechanism, aimed at providing credit lines to member states facing financial difficulties.
During the refugee crisis, it served as the basis for the Emergency Support Instrument. In the Covid-19 pandemic, Article 122 was used to adopt the SURE Regulation, which provided financial support to member states to protect jobs, and to create the EU’s Recovery Instrument.
Most recently, the 2022 energy crisis prompted the article’s usage to adopt measures such as the regulations on the coordinated reduction of gas demand and on emergency intervention to address high energy prices.
Of course, in a crisis situation, the speed of the response is almost as important as the response itself. As in most constitutional states, the executive branch should play a dominant role over the legislative one.
However, any power exercised without checks and balances, even for a good cause, can lead to abuses. In EU-specific cases, involving the EP is essential to mitigate that risk.
Improving the role of the EP in the activation of Article 122 can be done without the need to amend the Treaties. The next Interinstitutional Agreement should include a commitment by the Commission president and relevant Commissioners to appear before the EP within 24 hours of activating the mechanism to explain why they have done so.
To avoid the exception becoming the rule, as the French and Spanish constitutions allow, the EP’s approval should be required when exceptional measures exceed a reasonable timeframe. That should be no more than one month.
The EU’s use of Article 122 has been overall positive and, above all, highly efficient in achieving its goals. But the EU is more than that. It is, and must remain, a global example of democracy and transparency.
That's why the increasing use of Article 122’s emergency measures should be seen as an opportunity to implement a simple yet necessary reform that reinforces some of the bloc's most important hallmarks: accountability and rule of law.