Risks, Crisis and the European Union Law: Implications and Parallels for Addressing Financial, Energy Security and Environmental Catastrophe

Abstract

This paper compares crisis narratives and descriptions of the Anthropocene to the institutional and substantive changes that have been brought on the way by the creation of the Banking and Energy Union in the EU. From the aims alone, it becomes clear that both the Banking and the Energy Union were born out of the political desire to make each of the systems more robust, but that the visions themselves fall short of significant substantive change or a reinvention of the system. Whilst the explanation of this is almost entirely political, some of the reasons also have to do with the functioning and the mechanisms of the law. The law, in particular public law, stands and falls with formal legal principles, has a particular difficulty dealing with, defining and coming up with solutions for risk whilst staying true to formal principles such as certainty and proportionality. Risk detection requires the introduction of new procedures and agencies (institutions). The mitigation of risks requires a multicontexual and multipolar balancing of rights and interests. Both proceduralism and a complex act of balancing can guarantee the integrity of law and its methodology, but they do not bring about substantive change. This paper sees a third method of risk mitigation in the creation of new institutions (such as the Energy Union, but also the United Nation or NATO). This is perceived as the creation of something that is larger than the threat it addresses (‘super structures’), but substantively ends up enforcing little more than the “lowest common denominator”. This paper, therefore, suggests abandoning such methodological approaches and changing the principles on which the EU and the law of the common market is based instead. It proposes a “first best” and a “second best” solution. The first is the introduction of new and prevalent aims and principles and an actual change of the economic system. The second (though more likely solution) proposes a mere extension of the goals of the European union, which results in a careful act of balance between more sustainability and the development of the liberal common market project.