Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

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Commission of the compensatory measures adopted. Article 6 paragraphs 2-4 of the Habitats Directive also applies to the Birds Directive (Article 7). Outside the Natura 2000 sites, there is also a specific authorisation regime for the protection of certain species listed in Annex IV of the Directive. The measures to be taken by the MS in order to establish a system of strict protection of animal species are set out in Article 12 and for the protection of plant species in Article 13. Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, MS may derogate from these provisions in the circumstances as set out in Article 16. Relevance for shale gas activities The relevance of the Habitat and Bird Directives for shale gas projects lies in the question of whether the activities will or may have significant effects on a Natura 2000 site (Article 6) or on a certain protected species (Articles 12 and 13). If that is the case, the appropriate assessment (as explained) or the specific authorisation scheme should be carried out before allowing the establishment of a shale gas reservoir. 3.8 Hydrocarbons Directive The Directive 94/22/EC on the conditions for granting and using authorizations for the prospection, exploration and production of hydrocarbons - or in short: the Hydrocarbons Directive - is of a more general nature. MS retain the right to determine the areas within their territory to be made available for the exercise of the activities of prospecting, exploring for and producing hydrocarbons. However, whenever an area is made available for the exercise of such activities, MS shall ensure that there is no discrimination between entities as regards access to and exercise of these activities. This must occur under conditions which encourage greater competition in this sector. In this manner, the best prospection, exploration and production of resources in MS is realized and the reinforcement of the integration of the internal energy market is ensured. MS shall take the necessary measures to ensure that authorizations are granted following a procedure in which all interested entities may submit applications. It should be ensured that the procedures for granting authorizations are open to all entities possessing the necessary capabilities and that the authorizations must be granted on the basis of objective, published criteria (Article 5). The conditions under which authorizations are granted must likewise be known in advance by all entities taking part in the procedure. It should be prevented that an area is reserved to a single entity with an exclusive right, while it would be more efficient if several entities could bring the area into production. Therefore, the extent of the areas and the duration of the authorization should be limited (Article 4). Nevertheless, MS retain the option to impose conditions and requirements for reasons justified by the need to ensure the proper performance of the activities in the area for which an authorization is requested, by the public interest or by the payment of a financial contribution or a contribution in hydrocarbons (Article 6). Relevance for shale gas activities The Hydrocarbons Directive is applicable to shale gas activities; the competent authorities for granting those activities must comply with the authorization scheme of this Directive. 30
3.9 Seveso III Directive The Seveso III (2012/18/EC) Directive 125 lays down rules for the prevention of major accidents which involve dangerous substances, and the limitation of their consequences for human health and the environment. It concerns the prevention of, the preparedness for and the response to major-accident hazards. It applies to establishments as defined in Article 3. An ‘establishment’ means the whole location under the control of an operator where dangerous substances are present, including common or related infrastructures or activities. Establishments are either lowertier establishments (if substances are present in quantities equal to or in excess of the quantities listed in Column 2 of Part 1 or in Column 2 of Part 2 of Annex I, but less than the quantities listed in Column 3 of Part 1 or in Column 3 of Part 2 of Annex I) or upper-tier establishments (if substances are present in quantities equal to or in excess of the quantities listed in Column 3 of Part 1 or in Column 3 of Part 2 of Annex I). There is a difference between those two establishments; the larger the substances (as present within the upper-tier establishment), the stricter the rules and control. The Directive forces MS to ensure that the operator is obliged to take all necessary measures to prevent major accidents and to limit their consequences for human health and the environment (Article 5). MS shall require the operator to produce a major-accident prevention policy (MAPP), a safety management system, a safety report and emergency plans. MS shall ensure that certain information (as referred to in Annex V) is permanently available to the public, including electronically. MS shall also ensure that the public has an early opportunity to give its opinion on specific individual projects relating to the planning for new establishments; on significant modifications to establishments; and on new developments surrounding establishments where that may increase the risk or consequences of a major accident. It shall also be guaranteed, in the interests of transparency, that the competent authority is required to make any information held pursuant to this Directive available to any natural or legal person who so requests. Finally, MS shall make sure that the objectives of this Directive are taken into account in their land-use policies or other relevant policies. Relevance for shale gas activities The applicability of the Directive on shale gas activities depends on the thresholds relating to the storage of gas or of dangerous substances under the Directive in Annex I. If the shale gas projects contain dangerous substances referred to in this Annex, the operator of the shale gas project must comply with several obligations prior to the start of his project. Otherwise, the operator could be subjected to a penalty. The MS in which the shale gas project is located has also many responsibilities under this Directive. It must organise a system of inspections and controls to ensure that the operator takes all appropriate measures to prevent major accidents. If the measures taken by the operator are seriously deficient, the competent authority must take action. 3.10 The Environmental Liability Directive Although environmental liability, due to shale gas activities, is not something that will be discussed in this thesis, a short comment thereon is relevant. The Environmental Liability Directive (2004/35/EC) establishes a common framework in order to prevent and remedy environmental damage at a reasonable cost to society. The fundamental principle on which it is based is the polluter pays principle. Environmental damage includes damage caused by airborne elements as far as they cause damage to water, land or protected species or natural habitats (Article 2). Pursuant to Article 3, there is a strict liability scheme for environmental damage caused by the dangerous activities listed in Annex III of the Directive. Here, there is no need to proof fault. 125 The Seveso III Directive replaced the Seveso II Directive (Council Directive 96/82/EC on the control of major-accident hazards), which again replaced the (original) Seveso Directive (Council Directive 82/501/EEC on the major-accident hazards of certain industrial activities). 31
Page 1: Shale gas extraction: In line with
Page 4 and 5: Index 1 Introduction p. 7 1.1 Shale
Page 6 and 7: 7 Conclusions and Recommendations p
Page 8 and 9: to spread in the European Union. It
Page 10 and 11: 2 Context In this chapter some back
Page 12 and 13: the EU could produce more gas itsel
Page 14 and 15: minor tremors and community disrupt
Page 16 and 17: 2.3.1.3 Seismicity The risk of seis
Page 18 and 19: 3 Current European legislation on s
Page 20 and 21: As mentioned, Article 191(2) TFEU s
Page 22 and 23: the EIA Directive comes into play.
Page 24 and 25: project might have significant effe
Page 26 and 27: difficult to assess later on what p
Page 28 and 29: facilities used to receive such was
Page 32 and 33: Operators carrying out any occupati
Page 34 and 35: On 18 September 2013, a day before
Page 36 and 37: once, by a maximum of 6 months. A d
Page 38 and 39: can occur is the infiltration of wa
Page 40 and 41: location near a sensitive area, suc
Page 42 and 43: establish an inpassingsplan. This i
Page 44 and 45: 4.6.2 Water As noted in Chapter 2,
Page 46 and 47: 4.7 Extraction permit The procedure
Page 48 and 49: 4.9 Overview problems From the anal
Page 50 and 51: 5 General (environmental) principle
Page 52 and 53: as a ground for invalidation). 211
Page 54 and 55: scale or effects of the proposed ac
Page 56 and 57: orders. Here, unilateral actions by
Page 58 and 59: 5.3 General principle: transparency
Page 60 and 61: emarkable that the CJEU also someti
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Page 66 and 67: alance conflicting policies; the me
Page 68 and 69: prevailing social and political val
Page 70 and 71: It should be kept in mind, accordin
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Page 74 and 75: practice this distinction is less v
Page 76 and 77: national legal system, such as the
Page 78 and 79: application for sustainable develop
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6 Application of principles to shal
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The second justification concerns t
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Finally, it could also be questione
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Hence, these principles are really
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As set out in Chapter 5, the princi
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On the other hand, it should be rea
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this zone is made available. Also,
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With regard to the second part of t
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7.1 Conclusions Some remarks can be
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Gas is currently in development. In
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national interest and an imperative
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safeguarding of the drinking water,
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• Prechal & De Leeuw (2008) S. Pr
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• Q&A on the shale gas initiative
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• Case C-117/02 Commission v Port
Page 110:
Websites • http://www.eia.gov •
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