Secure(d) in uncertain times: law in a crisis of resources

In response to recent crises in the Single Market, the EU Commission has presented a horizontal mechanism for the first time. Still, no general "emergency clauses" may be identified that would relieve companies of obligations that are unreasonable in the event of insufficient energy resources.

Crisis law

As there is no universally valid definition of a crisis or systematic approach as an instrument for solving one, there is no "crisis law". Both in Union law and in national law, solutions must therefore be identified on an interpretative, case-by-case basis.

The Single Market Emergency Instrument

The European Commission recently published its proposal for a Regulation establishing a Single Market Emergency Instrument. It is the first time that a general crisis management mechanism gets codified. It comprises three risk levels: contingency, vigilance, emergency. The emergency mode requires a crisis ("exceptional, unexpected and sudden, natural or man-made event of extraordinary nature and scale that takes place inside or outside of the Union"). The risk levels allow for different EU measures, besides those of the Member States. Noteworthy in the emergency mode are direct, proportionate, obligations of companies – information requests, calls for priority rated orders – as ultima ratio for crisis management, which in case of priority rated orders even take precedence over public law and civil law obligations.

Crisis in Austrian regulatory law

Case-by-case solutions are possible according to the concept of nova reperta, nova producta or official interruptions of the legal force of decisions. Interruptions of factories (subject to conditions) must be notified in most cases. The lifting of operating obligations (in conformity with fundamental rights) is not permitted, must be notified or even approved.

authors: Günther Leissler, Andreas Lopatka-Sint