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Haftungsausschluss : Die Verdolmetschung der Debatten soll die Kommunikation erleichtern, sie stellt jedoch keine authentische Aufzeichnung der Debatten dar. Authentisch sind nur die Originalfassungen der Reden bzw. ihre überprüften schriftlichen Übersetzungen.
Quelle : © Europäische Union, 2026 - EP

Length of video : 135'

Disclaimer : The interpretation of debates serves to facilitate communication and does not constitute an authentic record of proceedings. Only the original speech or the revised written translation is authentic.
Source : © European Union, 2026 - EP

Prolonged emergencies pose a problem for European law that becomes increasingly visible over time. A state may have compelling reasons for maintaining an emergency regime, but it does not follow that every restriction on rights introduced within that regime remains necessary in the same scope, as applied to the same persons, and under present circumstances.

If the original justification for a restriction is carried forward with each renewal of the regime without independent reassessment, the measure’s initial necessity risks gradually becoming a presumption of its continuing necessity.

Ukraine provides an especially demanding contemporary example of this problem. In July 2026, Ukraine once again extended martial law. As Russia’s armed aggression continues, the grounds for maintaining the emergency regime remain exceptionally strong. Precisely for that reason, the Ukrainian experience makes the distinction particularly clear: between the continued necessity of the emergency regime itself and the narrower question of the fate of particular restrictions operating within it.

Two Objects of Justification

European scholarship has already examined the temporal problem of emergency governance in considerable depth. Alan Greene shows how the duration of emergency powers can blur the boundary between exception and the normal constitutional order. Stéphanie Hennette Vauchez traces the routinisation of emergency instruments and their migration into ordinary governance. Yoomin Won shows how the absence of strict temporal limits and the possibility of repeated renewals can allow derogations to remain in force for extended periods. Stuart Wallace, in turn, draws attention to prolonged derogations under Article 15 ECHR and to the need for procedures for reviewing emergency measures.

What is less clear is how this temporal problem operates at the level of individual restrictions. If the emergency regime itself lawfully continues, should the original justification for each measure automatically continue with it, or does the necessity of the measure require an independent assessment in light of current circumstances?

If one of the central European concerns is that emergency rule may become a durable form of governance, the next question is how to prevent the durability of the regime from becoming the durability of the justification for every measure within it.

This requires a distinction between two objects of assessment. The first is regime-level necessity: why the emergency regime should continue. The second is measure-specific necessity: why this particular restriction, in its present scope and as applied to these persons, remains necessary.

They are connected, but they are not identical.

Article 15 ECHR already provides the basis for such a distinction. There must be a war or other public emergency threatening the life of the nation; yet a state may derogate from its Convention obligations only to the extent strictly required by the exigencies of the situation. Recognition of an emergency therefore does not complete the analysis of the state’s particular response to it.

The case law of the European Court of Human Rights adds a temporal dimension to this distinction. Brannigan and McBride v United Kingdom, the Court attached importance to whether the necessity of the relevant emergency measures remained under continuing review. In A. and Others v United Kingdom, recognition of a public emergency threatening the life of the nation did not remove the need for a separate examination of whether the contested measures were strictly required. In Baş v Turkey, the Court again emphasised European supervision of national discretion and the relevance, among other factors, of the circumstances and duration of the emergency.

This is not a new test under Article 15. The proposed distinction simply avoids collapsing two questions that the Convention and the Court’s case law already require to be assessed separately: the continuation of the emergency and the necessity of a particular response to it.

What Time Changes

At the beginning of a serious crisis, the state acts with incomplete information. Threats evolve rapidly, consequences are difficult to predict, and some measures must be adopted before a complete evidential picture is available.

Several years later, the position is different. It is already known how a restriction operates in practice. Some initial predictions may have proved correct; others will not. Public institutions adapt to a prolonged crisis. Less restrictive means of achieving the same objective may emerge. The distribution of the threat itself may also change across territories or categories of persons.

What changes over time is not necessarily the legal conclusion, but the evidential picture on which that conclusion rests. A restriction that was necessary in the first month of a war may remain just as necessary several years later. By then, however, the state will possess information that it did not have at the outset: evidence about the practical operation of the measure, its consequences, possible alternatives, and changes in the threat itself.

This implies neither a presumption that a long-lasting measure is unlawful nor an automatic intensification of judicial scrutiny with each new renewal.

The claim is much narrower. If a restriction remains in force, the reasons for maintaining it must remain connected to current circumstances, rather than only to the circumstances in which it was originally introduced.

When a restriction is introduced, the state explains why it is necessary to respond to the threat. When it remains in force for years, an additional question arises: what current circumstances continue to justify this particular measure, in this scope, and as applied to these persons?

This does not require the state to re-establish the necessity of the entire emergency regime with every renewal. The outcome may remain unchanged. What must be capable of being renewed is not necessarily the measure itself, but the state’s ability to explain why its continued operation remains necessary.

Ukraine as a Contemporary Test

Following the introduction of martial law, Ukraine’s border-crossing rules restricted the departure of various categories of men while providing for statutory exceptions. In August 2025, the government amended those rules to permit male Ukrainian citizens aged 18 to 22 inclusive to cross the border, subject to the applicable exceptions.

For the purposes of the present argument, the political merits or shortcomings of that decision are secondary.

Martial law remained in force. Russia’s armed aggression continued. The general need for emergency regulation had not disappeared. Yet the state altered the category of persons to whom a particular restriction applied, without terminating or weakening the emergency regime as a whole.

This example does not establish that restrictions continuing to apply to other categories of men are unlawful or should be repealed. It shows something different: the duration of an emergency regime and the duration of a particular measure need not follow the same legal trajectory.

The regime may continue while the scope of an individual restriction is reconsidered in light of changed circumstances. A state may have exceptionally strong reasons for maintaining the emergency regime while reaching a different conclusion about the appropriate scope of a particular measure.

Why Is This Measure Still Necessary Now?

It is here that the distinction becomes legally significant for European judicial review. The considerable discretion afforded to national authorities in assessing an emergency threat should not displace independent scrutiny of a particular measure.

Domenjoud v France illustrates this distinction from another angle.

Following the 2015 terrorist attacks, France was operating under a state of emergency. In the run-up to the COP21 climate conference in Paris, the authorities restricted the movement of two environmental activists. The general emergency context was the same, but the individual factual grounds for the measures differed.

In relation to one applicant, the Court considered the information concerning his previous conduct sufficient to substantiate the alleged risk. In relation to the other, there was no comparable individual evidential basis; the Court also found no sufficiently close connection between the measure imposed on him and the threat relied upon by France in the context of its derogation.

Domenjoud therefore demonstrates not a temporal change in a measure, as in the Ukrainian example, but the other side of the same distinction: a general emergency context does not remove the need to establish a sufficient connection between a particular measure, a particular person, and a particular threat.

Two different questions follow:

Does the emergency continue to justify the existence of the exceptional legal regime?

And:

Does the particular restriction remain necessary in its present form?

The second question does not require a court to reassess the first in its entirety. A court may ask the narrower question whether there remains, today, a sufficient connection between the particular measure, its present scope, and the threat on which the state relies.

This does not transfer crisis management to judges. It preserves an independent role for judicial scrutiny of the particular measure.

Temporariness Must Operate Within the Emergency Regime

The European experience of terrorism, the COVID-19 pandemic, and war demonstrates how incomplete the traditional picture of temporariness can be: a crisis begins, exceptional powers are introduced, the crisis ends, and the ordinary legal order returns.

Prolonged emergencies disrupt that sequence.

If temporariness acquires legal significance only once the emergency itself has ended, it offers too little protection in a crisis lasting for years. Temporariness must have legal content within an emergency regime that is still continuing.

That content does not lie in a requirement that measures automatically become less restrictive as time passes, but in preserving the possibility of reviewing their continuing justification. If the factual basis remains, the restriction may remain. If circumstances have changed, the measure may be narrowed, modified, or terminated before the emergency regime itself comes to an end.

In this way, temporariness ceases to be merely a promise of a future return to ordinary law and becomes a legal requirement operating in the present.

For European law, this has wider significance. The longer emergency governance becomes part of legal reality, the more important it is not to allow the duration of the regime itself to become an independent argument for leaving every measure within it unchanged. Otherwise, scrutiny of temporariness will focus only on the fate of the emergency regime as a whole, while individual restrictions may continue on the basis of justifications formed for circumstances that have already changed.

The legal significance of renewal is therefore both important and limited. By renewing an emergency regime, the state confirms the continuing necessity of exceptional governance. But that does not, by itself, determine the fate of every measure operating within it.

To renew the regime is not automatically to renew the justification for every restriction.

In a prolonged emergency, European judicial review must preserve the possibility of asking the narrower question:

Why, precisely, is this measure still necessary today?

The post Beyond Renewal: Why Continuing an Emergency Regime Does Not Automatically Renew the Justification for Every Restriction on Rights appeared first on Ideas on Europe.

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Source : © Union européenne, 2026 - PE

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