DEFENCE BY TRANSPORT LAW? CONSTITUTIONAL CONSTRAINTS OF MILITARY TRANSPORTS PERMISSIONS AND EMERS IN THE PROPOSED MILITARY MOBILITY REGULATION (COM(2025)847)

Abstract

In November 2025, the European Commission tabled a proposal for a Regulation establishing a Union-wide framework to facilitate the cross-border transport of military equipment, goods and personnel (COM(2025) 847). Building on earlier military-mobility initiatives that relied predominantly on action plans and voluntary coordination, the draft would introduce directly applicable procedural harmonisation, including a uniform framework for authorisation procedures and an EU-level emergency mechanism (EMERS) designed for temporary, extraordinary and urgent situations. The proposal relies on EU transport competences (Articles 91 and 100(2) TFEU), thereby triggering the ordinary legislative procedure; it is presented exceptionally without an impact assessment and is instead accompanied by a Staff Working Document. The paper aspires to answer the following main question: under what constitutional conditions can EU transport competences sustain binding authorisation procedures and an emergency regime for military transport without encroaching upon Member States’ national security prerogatives and sovereign discretion over transit decisions? It advances a “proceduralisation” account of the draft: rather than transferring substantive control over military movements to the Union, the proposal seeks to standardise how Member States operationalise transit decisions by imposing common procedural parameters and crisis-specific acceleration tools. At the same time, this design generates Treaty-sensitive pressure points, especially where accelerated procedures and emergency activation risk compressing national discretion in security-relevant contexts. Methodologically, the paper uses doctrinal legal research, operationalised through textual, systematic and contextual interpretation. First, it assesses the choice of legal basis by analysing the proposal’s objectives and operative content, in line with the Court of Justice’s established approach to legal-basis selection. Second, it evaluates two legally decisive clusters, the authorisation regime and EMERS, against the principles of conferral, subsidiarity and proportionality, with particular attention to the safeguards that preserve national security prerogatives. Third, it maps (without exhaustively analysing) the draft’s infrastructure-readiness and solidarity components to clarify how they shape the proposal’s overall constitutional profile and where legislative contestation is most likely to arise. By focusing on competence boundaries, institutional design and emergency governance, the paper aims to offer a legally grounded account of the emerging “Military Schengen” agenda and clarifies how far defence-readiness can be pursued through non-CFSP hard law while remaining constitutionally disciplined.