Rethinking Emergency Powers in the EU: The Use of Delegated Rulemaking in the Context of Crises

The onset of different crises has raised questions on the emergency solving capacity of the European Union, especially given that the Treaties do not envision extraordinary powers to enact in case of emergencies and that crisis response traditionally lays in the hands of the member states. However, the EU has increasingly played a significant role in the management of the ‘polycrisis’, as various institutions, instruments, and mechanisms have been deployed. In the context of managing the most recent crises, the EU has resorted to delegated rulemaking, namely delegated and implementing acts pursuant to Arts. 290 and 291 TFEU respectively. This paper analyses empirically if the use of delegated rulemaking during crises proved to be a sufficient alternative in the absence of genuine emergency powers in the EU. In particular, it provides an analysis of the use of delegated and implementing acts in the scope of the EU’s response to the sovereign debt crisis, the so-called refugee crisis, the COVID-19 pandemic, and the consequences to the war in Ukraine. By way of conclusion, the paper discusses to what extent ordinary instruments such as delegated rulemaking can become an efficient and effective tool of crisis governance, with the aim of contributing to the scholarly debate on the emergency powers of the EU.