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Emergency, security and strategic autonomy in EU economic regulation Jens Hillebrand Pohl1

© Europäische Rechtsakademie (ERA) 2020

The first half of 2020 witnessed two unrelated developments with far-reaching ramifications for the European Union. On 11 March, the World Health Organization (WHO) acknowledged that the outbreak of coronavirus disease 2019 (COVID-19) had reached pandemic proportions.1 Europe found itself at the heart of this unprecedented public health emergency, but struggled to come up with a unified response as Member States took matters in their own hands and—if only temporarily—rolled back 64 years of achievements in the matter of days, erecting severe restrictions on the rights and freedoms of European citizens.2 1 WHO Director-General’s opening remarks at the media briefing on COVID-19, 11 March 2020, avail-

able at https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-mediabriefing-on-covid-19—11-march-2020. Visited 2 July 2020. 2 The European Commission resisted the introduction of intra-EU travel restrictions and a suspension

of the Schengen travel area, see ‘Coronavirus: EU rules out Schengen border closures amid Italy outbreak’, 24 February 2020, Deutsche Welle, available at https://www.dw.com/en/coronavirus-eurules-out-schengen-border-closures-amid-italy-outbreak/a-52497811. Visited 2 July 2020. Austria was the first Member State to notify a temporary reintroduction of border control at an EU internal border pursuant to Article 25 et seq. of the Schengen Borders Code, in quick succession followed by Hungary, Czechia, Denmark, Poland, Lithuania and Germany, see https://ec.europa.eu/home-affairs/sites/homeaffairs/files/ what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control/docs/ms_notifications_-_ reintroduction_of_border_control_en.pdf. Visited 2 July 2020. In the meantime, the plethora of national, regional and municipal restrictions on movement and other public health measures, as well as staff travel policies and cancellation of business travel, caused a collapse of the intra-EU air traffic system, prompting the urgent adoption of Regulation (EU) 2020/696 of the European Parliament and of the Council of 25 May 2020 amending Regulation (EC) No 1008/2008 on common rules for

B J.H. Pohl

[email protected]

1

Academy of European Law, Trier, Germany

J.H. Pohl

Less than two months later, on 5 May, crisis struck again. This time it was nothing less than the EU legal order, the central core of the European project, that was dealt a severe and humiliating blow before the highest constitutional authority of the most powerful Member State, the German Federal Constitutional Court, the Bundesverfassungsgericht (BVerfG). In its long-awaited judgment delivered on that day on the legality of the Public Sector Purchase Programme (PSPP) of the European Central Bank (ECB), the BVerfG declared a ruling by the European Court of Justice (ECJ) as ultra vires.3 By so ruling, the BVerfG defied the principle of the primacy of EU law and of the European Co