I recall how, when I was still teaching EU law at ULB, I used to point to Article 122 TFEU with a certain pride bordering on mischief. “Students,” I would say, “we always complain that the treaties leave us powerless in a crisis—but look, quietly hidden in plain sight, there is this little Swiss-army-knife provision that lets the Council act fast, by qualified majority, in a spirit of solidarity, when severe economic difficulties arise.” I presented it as one of the smartest pieces of constitutional engineering in the entire treaty. Today, I am no longer so proud.
The European Commission is now invoking that very Article 122(1) TFEU in December 2025 to make the immobilization of €210 billion of Russian central bank assets permanent and to transform them into collateral for massive loans to Ukraine. Yet Article 122 is an economic-policy tool—not a foreign-policy or sanctions instrument. Freezing a third country’s sovereign reserves is, by definition, a restrictive measure governed by Article 215 TFEU, which requires unanimity under the CFSP.
The objective behind this legal switch is transparent: to bypass the vetoes of Hungary and possibly Slovakia. But this is a textbook evasion of the unanimity rule, the very type of maneuver the Court of Justice has repeatedly condemned—most famously in its 2012 ruling on sanctions against Zimbabwe.
Nor are the textual prerequisites of Article 122(1) even remotely satisfied. Its triggers—“severe difficulties in the supply of certain products, notably energy” or threats to the balance of payments—simply do not correspond to political inconvenience in renewing sanctions. And the Court has never equated a geopolitical stalemate with an “economic emergency.”
The Commission’s approach also stretches the Union’s powers far beyond their constitutional limits. The EU does not possess a general emergency competence and has no authority to adopt quasi-confiscatory measures against the central bank of a third state. Under customary international law, central-bank assets enjoy near-absolute immunity; using them as loan collateral without judicial process or a peace treaty amounts, in many experts’ view, to unlawful expropriation.
Such a precedent would be economically reckless. The ECB has repeatedly warned—if mostly behind closed doors—of the catastrophic effects this could have on the euro’s status as a reserve currency. The “without prejudice” clause in Article 122 does not grant it supremacy over more specific legal bases that deliberately require unanimity.
And even if one were to ignore these structural limits, the litigation risk is enormous. Should the Court annul the regulation—a highly probable outcome once Belgium files—the assets will need to be released, the loans will become illegal, and both the Union and Euroclear could face joint liability in the hundreds of billions.
For all these reasons, the overwhelming majority of independent EU and international-law scholars view the attempt to rely on Article 122(1) as legally indefensible. The political majority may still force the measure through in December 2025, but litigation is inevitable. When the action for annulment reaches Luxembourg, the court is likely to strike it down within one or two years. And in the process, my once-beloved Article 122—the provision I used to celebrate as a masterpiece of flexible, solidarity-driven drafting—may emerge severely damaged, perhaps permanently.
I never thought I would live to see the day when this provision would be twisted into what the Belgian Prime Minister has openly called “theft.” One further doctrinal point makes the misuse even clearer: Article 122(1) defines its object and purpose with remarkable precision. It authorizes Council action “in a spirit of solidarity between Member States” when Member States face severe economic difficulties. This solidarity clause is not decorative; the Court has repeatedly affirmed its binding nature.
A systemic reading reinforces this conclusion. Article 122(1) cannot be used to grant financial assistance—a power explicitly reserved for Article 122(2), which functions as a lex specialis. Measures under paragraph 1 therefore cannot include loans or any other form of financial aid, let alone the conversion of a third country’s frozen sovereign assets into collateral for a €100–200 billion lending operation to another third country. The Commission’s proposal is not merely constitutionally illegitimate for hijacking a CFSP sanction; it is textually impossible.
Recent developments only underscore the trend toward abusing Article 122 as a general crisis-financing mechanism. On 19 March 2025, the Commission proposed a Council regulation establishing the “SAFE instrument” (Security Action for Europe) to rapidly expand Europe’s arms industry. Although the proposal generically cites “Article 122 TFEU,” it is clear from its substance—providing financial assistance to Member States to support urgent, large-scale defense investments—that it relies on Article 122(2).
The SAFE regulation would mobilize €150 billion from the EU budget in the form of subsidies and subsidized loans for national defense projects. Since Member States may receive financial aid from the Union budget on account of severe difficulties only under Article 122(2), the proposal cannot be grounded in Article 122(1). Its explanatory memorandum invokes the “exceptional security context” and the need for “massive investments” in defense manufacturing—but these are political arguments, not legal ones.
Taken together, the Russian-assets plan and the SAFE proposal amount to a systematic attempt to transform Article 122 into a universal crisis and security financing clause—a purpose it was never designed to fulfill.
The European Parliament, while strongly supportive of assisting Ukraine, has raised alarm over this distortion of a 1957 economic-emergency provision, adopted in secret, by a qualified majority, without parliamentary scrutiny. When the case reaches Luxembourg, the Parliament will argue—rightly—that the Emperor has no clothes. And on current jurisprudence, the Court is likely to agree.
Article 122 allows the Council to legislate alone. That was grudgingly tolerated for €3 billion of extraordinary own resources during COVID. For €210 billion of another state’s sovereign assets in peacetime, it is constitutionally explosive.
The real motive remains the neutralization of Hungary’s veto in the CFSP. But the Court has annulled every previous attempt to launder a CFSP measure through a non-CFSP legal basis (see Case C-130/10). And while the war undeniably harms Europe’s economy, the Court has never accepted “we need to bypass a veto” as equivalent to an energy-supply crisis or a balance-of-payments emergency.
If the General Court or the ECJ strikes down the €150 billion defense fund for exceeding the scope of Article 122, then the Russian assets regulation—which is even further removed from classic economic policy grounds—has virtually no chance of surviving judicial review.