In a sharply worded legal critique in Modern Diplomacy, Professor Cristina Vanberghen, a former EU law lecturer at ULB, warns that the European Commission’s attempt to permanently immobilise €210bn in Russian central bank assets under Article 122 (1) of the Treaty on the Functioning of the European Union (TFEU) is both constitutionally illegitimate and textually indefensible.

“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,” Vanberghen writes. “Today, I am no longer so proud.”

The European Commission is invoking Article 122 not to assist EU Member States in economic crisis — its intended purpose — but to convert Russian sovereign assets into collateral for a Ukraine loan, sidestepping the CFSP unanimity requirement under Article 215. “This is a textbook evasion of the unanimity rule,” Vanberghen argues, likening the manoeuvre to the kind of legal overreach previously struck down by the Court of Justice of the EU (CJEU), notably in the 2012 ruling on sanctions against Zimbabwe.

She contends the Commission’s legal basis fails on every count. Article 122 was designed for emergencies affecting Member States, such as energy shortages or balance-of-payments crises — not to bypass geopolitical impasses. “The Court has never equated a political stalemate with an ‘economic emergency’,” she notes.

Moreover, the EU has no general emergency competence, and no mandate to adopt what Vanberghen calls “quasi-confiscatory measures” against the central bank of a third country. “Under customary international law, central-bank assets enjoy near-absolute immunity,” she writes. Without a peace treaty or judicial process, such use of sovereign reserves amounts to “unlawful expropriation.”

The economic implications could be severe. “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,” Vanberghen adds. If the Court annuls the regulation—as she believes is likely—Euroclear, which holds the Russian assets, and the Union itself could face joint liability “in the hundreds of billions.”

Vanberghen also warns that the Commission is now pushing a broader reinterpretation of Article 122. In March, it proposed the SAFE  (Security Action for Europe) instrument, a €150bn defence fund to subsidise national arms industries, citing the same article. “Although the proposal generically cites ‘Article 122 TFEU’, it is clear... it relies on Article 122(2),” she writes. That paragraph, unlike 122(1), explicitly covers financial assistance to Member States. Using the wrong legal base again risks annulment.

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 fulfil,” she argues. Parliament, though politically aligned with supporting Ukraine, has raised alarm at what it sees as legal overreach. Vanberghen believes it will ultimately side with the Court, stating: “When the case reaches Luxembourg, the Parliament will argue—rightly—that the Emperor has no clothes.”

The deeper concern, she writes, is that the Council may now legislate alone on matters far beyond the Treaty’s intent. “That was grudgingly tolerated for €3 billion during COVID. For €210 billion of another state’s sovereign assets in peacetime, it is constitutionally explosive.”

The real aim, Vanberghen argues, is to neutralise Hungary’s veto within the Common Foreign and Security Policy (CFSP). But such political convenience, she notes, cannot justify rewriting the EU’s legal architecture. “The Court has annulled every previous attempt to launder a CFSP measure through a non-CFSP legal basis,” she writes. “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.”

If the Court strikes down the €150bn SAFE fund, Vanberghen believes the Russian assets regulation—which is even further removed from Article 122’s purpose—will almost certainly not survive. In that event, she warns, not only would the measure collapse, but Article 122 itself may be irreparably damaged.

“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’,” she concludes.