The non-emergency economic policy competence in Article 122(1) TFEU

The Next Generation EU (NGEU) programme has sparked a major constitutional debate in EU law, with assessments ranging from approving NGEU as creative legal engineering to repudiating it as breaching EU primary law.A third approach aims to transcend the first two by qualifying NGEU as a “constitutional moment” for the EU. What most of these assessments nonetheless have in common is that they – implicitly or explicitly – qualify Article 122(1)TFEU as an emergency legal basis. This contribution challenges the idea that Article 122(1) TFEU exclusively contains an emergency legal basis and provides a textual, systemic, historic and teleological reading of that legal basis in support. While reading Article 122(1)TFEU as such would both do away with most of the constitutional objections against NGEU and allow the EU to develop its own dedicated economic policy, complementing its coordination of the Member States’ national economic policies, a risk also arises of that legal basis conferring an unchecked executive power on the Council.To counter that risk, this contribution further identifies useful safeguards, ensuring that the vertical and horizontal balances of power within the EU construct remain intact.