The EU’s legal response to successive crises has pushed Article 122(1) TFEU to its limits. The most recent example, Council Regulation 2025/2600, permanently freezing Russian assets, marks a constitutional inflection point: although the original plan to use these assets as collateral for a Ukrainian loan was abandoned and replaced by a joint-debt instrument, the Regulation was nonetheless adopted on Article 122(1), bypassing CFSP unanimity and raising the question whether an emergency clause is quietly becoming a super competence.
Council Regulation 2025/2600 is the most recent instance of a broader trend. Between 2004 and 2022, only six regulations were adopted on the basis of Article 122(1) TFEU; the same number followed within a single year between 2022 and 2023. That trajectory continued in 2025 with the SAFE Regulation, strengthening the European defence industry, and Regulation 2025/2600 itself. Such an intensification in the use of Article 122(1) has already generated tensions, and its connection to a genuine economic emergency is becoming increasingly difficult to sustain.
Assessing these limits requires examining the substantive conditions for invoking Article 122(1) in practice. The 2022 solidarity contribution, which taxed windfall profits of energy companies in response to high energy prices, illustrates how Article 122(1) can function as a legitimate economic emergency instrument. By contrast, the permanent freeze of Russian assets reveals how far its scope is being stretched.
The priority of non-emergency powers
Article 122(1) forms part of the provisions of primary law relating to economic policy. These provisions leave economic policy to the responsibility of the Member States (Article 2(3) and (5) TFEU). Article 122(1) derogates from this allocation of competences and the ECJ has emphasised that it may be relied upon only in situations of urgency, where no other legal basis enables the Council to act with sufficient speed to remedy the situation (para. 15). This restrictive interpretation also stems from the fact that acts adopted on the basis of Article 122(1) do not provide for the participation of the European Parliament.
In the case of the solidarity contribution, the competence relating to energy policy under Article 194(2) TFEU could have been applicable. That provision, however, also specifies that it applies without prejudice to the application of other provisions of the Treaties. In this context, the Court has already ruled that this reference refers, in particular, to Article 122 (para. 67).
By contrast, the applicability of Article 122(1) to the permanent freeze of Russian assets is less clear. Since 2014, the sanctions have been adopted by the Council within the framework of the Common Foreign and Security Policy (CFSP) and have required unanimous renewal every six months. The use of Russian assets as collateral for a loan to Ukraine necessitated a permanent freeze. Accordingly, basing the freeze on Article 122(1), which requires only a qualified majority in the Council (Article 16(3) TEU), made it possible to circumvent the unanimity requirement in the CFSP (Article 31(1) TEU). Such circumvention stands in direct opposition to the encroachment clause set out in Article 40(2) TEU, which draws a clear dividing line between the CFSP, on the one hand, and the Union’s other policies, on the other. It ensures that the Union’s policies may not contain provisions that could be subject to CFSP decision-making. Crossing this line violates the relationship of mutual non-interference.
Appropriate measures to the economic situation
Article 122(1) does not specify which economic situation must be established for it to apply. Nevertheless, the exceptional nature of Article 122(1) allows the inference that an economic crisis must have occurred or be imminent and that only temporary measures may be adopted on the basis of this provision, as opposed to normative measures of a lasting nature.
Russia’s aggression against Ukraine, combined with shortages of gas and oil led to a sharp rise in electricity prices, the demand for which had already surged during the economic recovery following the pandemic (recitals 1, 2 and 6). These developments have resulted in inflation in the euro area and a disruption in the internal market (recitals 2, 5, 12 and 14). This situation required a rapid and coordinated EU response in 2022, resulting in a solidarity contribution imposed on companies deriving at least 75% of their turnover from the crude oil, natural gas, coal, and refining sectors and recording windfall profits (recitals 50 et seq.). The adoption of the Regulation constituted an emergency intervention (para. 40), was limited in time (art. 2(19) and art. 18), and was implemented with the aim of guaranteeing an affordable energy supply by using the proceeds to provide financial support to customers and businesses (art. 17).
Conversely, it remains unclear how an asset freeze serving primarily to sanction Russia protects the EU from an exceptional crisis. In recitals 6-10 of the Regulation, the Council nevertheless seeks to link the permanent freeze to the protection of the EU economy by emphasising the negative impact of Russia’s war on the internal market and by pointing to the risk that a potential unfreeze could facilitate the financing of hybrid belligerent activities, thereby prolonging and aggravating economic uncertainty (recitals 14-18). Through this justification, Russian aggression is presented as posing an indirect threat to the EU economy. That characterisation, however, becomes questionable in light of the primary objective pursued: circumventing the unanimity requirement in order to maintain the asset freeze as a restrictive measure (art. 2). While the Court has allowed legal measures to pursue mixed objectives (paras. 38-39), this remains impermissible in the present case due to the dividing line between the CFSP and other policy areas. Finally, the permanent character of the freeze contradicts the exceptional nature of the measure.
The spirit of solidarity
Finally, Article 122(1) requires that measures be taken ‘in a spirit of solidarity between Member States’, a requirement constituting an essential basis of the EU legal order (para. 25) with binding obligations for EU institutions and Member States (para. 43 and para. 49).
In the case of the solidarity contribution, Member States did not possess equal fiscal capacity to support businesses and customers affected by the energy crisis. As a corrective mechanism, the regulation provided that, in cases of interdependence between exporting and importing Member States, surplus revenues should be shared (art. 11).
The Regulation on the freeze of Russian assets refers to solidarity among Member States only once, stating that the measures are necessary to avoid unequal repercussions resulting from an increased threat by Russia (recital 10). This mere reference, without the introduction of concrete measures, fails to ensure solidarity capable of creating a fair balance between the benefits and burdens of Union membership. By contrast, €185bn of the €210bn in Russian central bank assets frozen by the EU are held in Belgium. This concentration left Belgium disproportionately exposed, while other Member States were unwilling to share the legal risk should Russia contest the planned use of these assets as collateral.
Emerging Structural Tensions in EU Crisis Governance
The mere increase in the use of Article 122(1) does not suffice to establish a transformation from an emergency power into a super competence. Its invocation can instead be linked to concrete challenges faced by the EU, such as providing temporary support to mitigate unemployment risks during the COVID-19 pandemic, governing the subsequent recovery, and addressing the energy crisis following Russia’s invasion of Ukraine.
However, this justified crisis use appears to have encouraged reliance on Article 122(1) to formulate policy beyond emergency response. The freeze of Russian assets has highlighted how hastily declared, or even deliberately constructed, emergencies may facilitate an abuse of this legal basis. Ongoing proceedings against several legal acts based on Article 122(1), which fall even more clearly within its scope, illustrate this debate (e.g., C-675/22; T-759/22; T-802/22). In the case of the SAFE Regulation, the European Parliament fears that structural reforms are being implemented without its involvement.
More recent uses of Article 122(1) may therefore mark the starting point of its transformation into a super competence. Such a transformation could have severe consequences. Successful claims by Member States or the European Parliament could overturn existing regulation, leaving regulatory gaps where a legally sound choice of competence might have produced durable regulation. As the Parliament does not act as co-legislator, the Commission risks straining institutional relations and diminishing the transparency of European legal acts, thereby undermining the fundamental democratic principle of parliamentary involvement (para. 20). Member States’ distrust of competence creep could be amplified, thereby harming vertical relations with EU institutions. Political implications could include vetoes of other decisions that still require unanimity, particularly in the CFSP.
At the same time, the EU must demonstrate steadfastness as its economy is under strain, security alliances are at risk, and the rule of force is on the rise. Reliance on Article 122(1), therefore, points to an underlying problem concerning how these challenges should be addressed. While some call for a re-examination of the principle of conferral and a departure from a strict measure-specific approach to legal bases, others maintain that genuine treaty reform would necessitate the collective withdrawal of Member States from the current Treaties and the conclusion of new ones. As long as no new framework is established, there remains a real risk that the EU will increasingly resort to Article 122(1) to pursue structural transformation without effective democratic control, ultimately turning an emergency clause into a super competence.
Zitiervorschlag: von Hanstein, Leopold, Emergency Powers at the Limits of the EU Treaties, JuWissBlog Nr. 22/2026 v. 27.02.2026, https://www.juwiss.de/22-2026/.
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