Neither Normalcy nor Crisis: The Quest for a Definition of Emergency under EU Constitutional Law

Abstract Emergency law serves the dual purpose of granting public authorities the powers to respond to emergencies whilst simultaneously limiting the use of such powers so as to prevent their abuse. To this end, it is crucial that emergency law clearly outlines its own scope by delimiting the grounds that permit the invocation of emergency powers. This article argues that defining those grounds requires distinguishing emergency from normalcy and disentangling it from the broader notion of crisis. Accordingly, the contribution investigates the extent to which a definition of emergency can be accommodated within EU constitutional law. To do so, it draws on examples from European emergency law, understood as encompassing both EU Member States’ laws and the European Convention on Human Rights (“ECHR”). The article shows that the vague emergency terminology employed in the EU Treaties hinders the identification of a horizontal definition of emergency and risks casting doubt on the constitutional legitimacy of emergency responses by the Union and its Member States.