LETTER FROM BRUSSELS
Except for scholars of Community law, Article 122 of the Treaty on the Functioning of the European Union (EU) remains largely unknown. However, for the past three years, it has enabled the Commission to adopt, in record time, legislative proposals that all Europeans have heard of.
Among other things, we can cite: the joint purchase of vaccines against Covid-19 by the Twenty-Seven, the establishment of a Community instrument to help governments finance their partial unemployment scheme during the pandemic, the creation a levy on the superprofits of energy producers, the capping of the price of gas, the acceleration of the issuance of permits for solar and wind farms, the reduction of gas and electricity consumption on the Old Continent or the joint purchase of gas.
Where it usually takes at least two years for a directive to be set in stone, we have seen complex and decisive texts come to fruition in a few weeks through the magic of this Article 122, the conditions of use of which are described in two short paragraphs. The first evokes “serious difficulties (…) in the supply of certain products, in particular in the field of energy”the second can be activated when a Member State suffers “natural disasters or exceptional events beyond its control”.
“The Question of Democratic Accountability”
In any case, Article 122 can only be used for temporary measures, intended to respond to a temporary crisis. If the conditions are met for its activation, it allows the Member States to take a decision by qualified majority – and to avoid the unanimity which is sometimes required, particularly in matters of taxation – and, above all, without Parliament European is associated.
Even if the comparison is questionable from a legal point of view, this emergency instrument in the hands of the Twenty-Seven, which allows them to circumvent the elected officials of Strasbourg, can, in certain respects, be assimilated to a “European 49.3” . “It would rather be the equivalent of an order or the state of emergency in France”, corrects a European diplomat. And again: the European Parliament must not ratify a law based on Article 122, as the National Assembly and the Senate are required to do when the executive acts by ordinances or decides on a state of emergency. “It is logical to ask the question of the democratic accountability of this kind of instrumentsadmits this same source. Perhaps Article 122 needs to be refined, with for example an ex post control by the European Parliament. »
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