Anna Wallerman Ghavanini
In a crisis, ordinary rules often have to give way for more expedient ones. Such emergency competences tend to favour executive decision-making over legislative procedures. In an EU shaken by successive crises, the risk is that this leads to permanent competence creeps. While considerable attention has been devoted to the impact of crisis on EU legal and political decision-making, the position of the Court of Justice (CJEU) and its impact on the EU distribution of powers has been less discussed. This article fills that gap by exploring how the CJEU reviews the exercise of power by executive actors on Union and Member State levels in times of crisis. Using migration law as a case study, the article examines qualitatively and quantitatively how the CJEU responds to crisis both directly, in its scrutiny of measures of containment taken at Union and Member State level, and indirectly through its adjudication of migration cases in general before and after the acute phase of the 2015 refugee crisis. The findings show that the crisis has led the CJEU to take a more lenient approach towards the executive powers at both Union and Member State level. It argues that this effectively amounts to a withdrawal from the judicial control function, turning the Court into an unquestioning ally of the executive and enabling an expansion of executive power that is likely to have effects beyond the state of emergency.