Constitutional Engineering of State of Exception Regimes within the European Union

In a number of European state’s so-called “state of emergency” or ‘state of exception’ or ‘state of crisis’ rules (hereafter generally referred to as ‘State of Exception (SoE)’) have been relied on in order to develop quick executive responses to the COVID-19 pandemic. The State of exception can be defined as an extraordinary mode of governance provided for by the laws of the country and subject to such laws for their declaration and implementation. Declarations of a state of exception precede or accompany executive interventions, which could not be justified in terms of the constitution or previously established laws. Or, as Matthias Lemke has put it: ‘In a legal sense, the term SoE refers to a multitude of different crisis reaction mechanisms that exist in the context of differentiated statehood. These mechanisms have in common that they all enhance the government’s power of action and decision-making, if the relevant condition to call out a SoE are met. The declared aim of these instruments is to return as quickly as possible to the pre-crisis situation’.