The Covid-19 and the war in Ukraine have highlighted the fragility of our societies in a globalised world : the search for the economic performance leads to a lower resilience. Structurally, climate change leads to future instabilities of the physical world that make probable a multiplicity of crises to be faced, not only in an emergency context. It is more than ever, and for all, the crucial question of security of supply and delivery essential goods and services to which people must at least have access that needs to be addressed; and this question can only arise on a European level.

The notion of essential goods can naturally be used in the fight against precariousness : it is then a question of defining a set of goods and services that constitute the bare minimum. It is, for example, a minimum subscription to electricity or water that goes beyond the logic of the market, a mechanism under a welfare state anxious to compensate for the undesirable effects of the market.

But in recent years, the reference to ‘essential goods’ has taken a more structural dimension, linked not only to the resilience of individuals hit by poverty, but, more broadly, to the resilience of society as a whole and of the State itself, whose sovereignty may be shaken by the difficulty or even the inability to guarantee to its population the delivery of goods and services perceived as essential.

Global instability and the crises experienced by the European Union led the European Commission to propose a regulation on the supply of critical materials. However, reflection should not stop at an analysis of the weaknesses of an economic system weakened by insufficiently diversified sources of supply. More generally, it is to a reflection on what seems indispensable to the support of our societies and on the legal mechanisms likely to respond to the issues related to this indispensable character, that the specific notion of ‘essential good’ invites us.

This notion could complement ‘common good’ notion. Indeed, the category of common goods is combined with specific approaches to the property regime related to the need to avoid a monopolisation and characterizing a certain inclusiveness. In this, the category of the common goods overlaps that of the essential goods, but, for the latter, an explicit choice is made to ensure their priority access because of a crisis situation, or to ensure their access, which is considered an indispensable minimum both for the life of the individuals and for the vitality of the community they form. In other words, what will motivate the entry of goods or services into the category of essential goods is, on the one hand, an analysis based on the anticipation of disasters that may include goods that today are positioned at the bottom of the scale of communality, on the other hand, the recognition of the need to identify intellectually and to protect legally structuring goods and services on which the sustainability of the sovereignty of States as well as the economic and social solidarity they owe to their populations are based.

To initiate the research on this new notion, rather than trying to establish a list of goods and services, it will be interesting to agree on criteria, the basis for defining a perimeter and justifying the inclusion in the category of essential goods or services. This is the first stage of the research work to which researchers interested in this European project are invited. Then, the second step is to propose a general legal regime specific to these goods and services. Intuitively, a crisis regime likely to respond to the emergency seems to be necessary, requiring the development of democratic and jurisdictional control modalities, for the initiation, maintenance and exit of this crisis regime. However, certain goods or services may have an immutably essential character regardless of any period of crisis, which will require a form of standardisation of the legal regime considered. Then, it will be necessary to reflect on the relevance of further refining the legal regime likely to apply by distinguishing a certain degree of ‘essentialisation’ justifying the development of special regimes based on new ways of mutualisation and development of solidarity, beyond state borders.

A kick-off workshop will be held Thursday, 17 October 2024, in Lyon, at Ucly (Catholic University of Lyon). If you are interested in participate, please contact us at: mmonotfouletier@univ-catholyon.fr