On the 23rd of March 2022 the European Commission adopted another Temporary Crisis Framework for State aid, this time in the context of Russia’s invasion of Ukraine (the Ukraine TF). The framework is meant to mitigate the economic impact of the war and EU sanctions by supporting severely affected businesses. This practice is not isolated, with the 2008 Temporary Framework issued in response of the financial crisis (the Financial Crisis TF), and the 2020 Temporary Framework issued in the context of the coronavirus outbreak (the Coronavirus TF), allowing already for trillions of Euros to be paid by the Member States to salvage their economies. These ‘frameworks’ belong to the loose category of ‘soft law’, as they have no legally binding force but may produce legal and practical effects. In areas of exclusive EU competence, such as State aid, such effects are far reaching, with research showing a general trend of compliance from national courts and administrations.
Yet, soft law, and especially emergency soft law, have feeble legitimacy credentials, whilst regulating matters of high political, social, or economic salience. Through its Ukraine TF, the Commission sets the criteria according to which public money should be spent to ease the enormous pressure of high energy prices or the spill over effects of economic sanctions. Even though it pertains to the security of energy supply, environmental protection, and geopolitical concerns, the Ukraine TF was not issued following public consultations (unlike ‘regular’ State aid soft law), and the discussions that the Commission had with the Member States on the topic were not published. The Ukraine TF was published only two years after the Coronavirus TF, raising the concern that such practices, of issuing temporary soft law, are becoming entrenched, further endangering the rule of law in the EU.Continue reading