Recent use: the SAFE initiative
The European Parliament’s Legal Affairs Committee (JURI) has expressed opposition to the European Commission’s use of Article 122(2) of the Treaty on the Functioning of the European Union (TFEU) as the legal basis for the “ReArm Europe” initiative (The Commission’s 19 March 2025 proposal to create the Security Action for Europe (SAFE), aimed at mobilizing the EU budget to support and accelerate national defence investments. )
On 23 April 2025, during a closed session, the JURI Committee unanimously adopted a non-binding opinion stating that Article 122 TFEU is not an appropriate legal basis for the proposed legislation. The committee’s concerns include the absence of the urgency conditions required for the application of Article 122, and the bypassing of the European Parliament in the decision-making process, which raises issues regarding democratic legitimacy and the principle of subsidiarity .
While the JURI Committee’s opinion does not have binding legal force, it reflects significant institutional unease about the Commission’s approach. The committee has communicated its determination to the President of the European Parliament, Roberta Metsola, suggesting that further steps be considered. However, any legal challenge would require action by the Parliament as a whole, potentially involving the Court of Justice of the European Union .
This development underscores ongoing tensions between EU institutions over the appropriate legal frameworks for significant policy initiatives, particularly those related to defence and security, and highlights concerns about maintaining democratic oversight in the Union’s legislative processes.
Article 122 of the Treaty on the Functioning of the European Union (TFEU) provides two distinct legal bases allowing the Council of the European Union to adopt measures based on a proposal from the European Commission, without involving the European Parliament. These provisions are widely regarded as the EU’s “emergency law” tools, and the article itself is often described as a “crisis clause.” It is intended to be used only in exceptional circumstances.
Two paragraphs, two functions
- Article 122(1) TFEU addresses economic difficulties faced by Member States. Its explicit purpose is to respond to a Member State’s problematic or potentially problematic “economic situation” in a “spirit of solidarity” among Member States. A non-exhaustive example includes severe disruptions in the supply of certain products, especially in the energy sector. Measures adopted under this paragraph must be economic in nature or have significant economic implications.
- Article 122(2) TFEU specifically concerns financial assistance to Member States. It applies when “a Member State is in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control.” It covers two scenarios: current difficulties or a serious threat of such difficulties. The purpose of this paragraph is to enable the Union to provide financial assistance from the EU budget, not from other Member States. This paragraph is considered a lex specialis—a more specific rule—compared to paragraph 1.
Paragraph 2 is widely accepted as a clear crisis-based provision, applicable only in emergency situations. Paragraph 1, although not expressly limited to emergencies, is also often interpreted—by actors including the Council Legal Service—as requiring urgency or crisis, based on a contextual reading of the article as a whole.
A non-legislative procedure
The procedures under Article 122 are non-legislative: the article does not mandate the use of the ordinary or special legislative procedures. Consequently, legislative procedural rules do not apply. However, qualified majority voting in the Council is required.
Under Article 122(1), the Commission proposes a measure and the Council adopts it by qualified majority. Under Article 122(2), the Commission proposes financial assistance, the Council adopts the decision by qualified majority, and the President of the Council subsequently informs the European Parliament. The Parliament is not consulted or informed at an earlier stage.
Acts adopted under Article 122 are considered self-standing legal bases for non-legislative acts. Unlike other non-legislative executive bases (such as Articles 43 and 78 TFEU), Article 122 does not require an underlying legislative act. For this reason, such acts cannot be challenged on the grounds of non-compliance with a legislative act—they stand on the same hierarchical level in EU law.
Democratic concerns and parliamentary scrutiny
Given the use of Article 122 to enable swift EU responses to crises, the European Parliament has raised concerns about being bypassed, viewing this as a threat to democratic legitimacy. In its 2020 resolution on the COVID-19 pandemic and a 2023 resolution, the Parliament called for limits on Article 122’s use and demanded greater parliamentary oversight. It proposed that Parliament be empowered to initiate emergency response legislation and called for a revision of the Interinstitutional Agreement on Better Law-Making to strengthen its role in crisis decision-making.
To reinforce budgetary oversight, a Joint Declaration was adopted by the Parliament, Council, and Commission in December 2020. This agreement allows for budgetary control of proposals based on Article 122 that may have significant implications for the EU budget, ensuring an active role for Parliament.
In addition, the Parliament has amended its internal Rules of Procedure to introduce Rule 138, which requires the Commission to justify to Parliament its use of Article 122 as a legal basis. Rule 138 also authorises the Legal Affairs Committee to assess the appropriateness of the legal basis and, if necessary, to trigger the budgetary oversight mechanism set out in the 2020 Joint Declaration.
Historical context and evolving use
Article 122 and its predecessors date back to the early stages of European integration. While regularly used, recent years have seen a surge in reliance on this provision to address financial crises, the COVID-19 pandemic and its aftermath, and the energy crisis. Some legal scholars view this as a “paradigm shift,” highlighting that instruments like Next Generation EU, though adopted under a crisis narrative, may have lasting implications.
There is ongoing debate about whether Article 122 measures must be strictly temporary. Earlier case law suggested a temporary nature. The Council Legal Service maintains that measures under Article 122 should be temporary and should not serve to permanently regulate EU policy or replace regular EU funding instruments. However, a more nuanced view acknowledges that even though some permanent tools were adopted under Article 122(1), they were intended to respond to temporary situations and should be applied accordingly.