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

5 General (environmental) principles of Union and Dutch law
In the next chapter the current shale gas regulation will be measured against several general
(environmental) principles. Before doing this, the case law and literature on those principles - at
both the EU level and the national level - should first be discussed. While setting out the different
principles, first the EU content of the principle will be set out, after which the national meaning
(according to the Dutch case law and literature) will be given. Prior to this, the definitions of and
differences between general principles of Union law and environmental principles will be set out.
Here, there is chosen to only discuss the most relevant principles with regard to shale gas
exploitation. The principles that first come to mind when discussing the compliance of the current
EU and national legislation on shale gas with general (environmental) principles of Union law are:
the subsidiarity principle (especially with regard to the latest EU initiative on shale gas), the
transparency principle, the participation principle, the integration principle, the precautionary
principle and the prevention principle. These will be discussed in this order. With regard to the
general principles, their meaning will first be elaborated in general, before going into more depth
what the principles mean with regard to environmental cases. Other general principles of Union law
that will not be discussed here are e.g. equal treatment, proportionality, legal certainty,
fundamental rights, etc. With regard to general environmental principles the principles that will not
be discussed separately are the principles that environmental damage should as a priority be
rectified at source and that the polluter should pay. Due to the length of this thesis and the degree
of relevance of those principles (compared to the discussed principles), it is chosen not to discuss
these principles individually. However, they will both be considered (shortly) when discussing the
other chosen principles.
It should be mentioned that 'energy specific' principles do not exist. The ensuring of the security of
energy supply in the Union is for example not a general principle, but an objective. Before the
Lisbon Treaty added a specific provision on energy (Art. 194), most energy regulation was adopted
on the basis of Article 191 TFEU (on the environment). In the second paragraph of Article 191 a
reference is made to several environmental principles. These principles should guide the
environmental policies. Article 194 TFEU does not have a similar paragraph, but it should be
assumed that Art. 191(2) TFEU also applies to energy policies since the previous energy
regulations were and still are based on this article and energy regulation often has great impact on
the environment, as seen in Chapter 2. Moreover, the integration principle of Article 11 TFEU, as
set out in paragraph 1.5, requires that environmental protection requirements must be integrated
into all the Union policies and activities, which includes the field of energy.
5.1 General principles vs. environmental principles
5.1.1 General principles
There is one generally accepted definition of a general principle of EU law, namely that a principle
is a "general proposition of law of some importance from which concrete rules derive". 201 Hence, a
general principle must be of general nature – a certain abstraction, distinguished from (concrete)
rules – and should carry some weight. This latter means that it should have certain importance and
that it must express the core value of an area of law or legal system.
The EU general principles are developed by the CJEU as a necessity: "unless the Court is to deny
justice (...)". 202 The Court found the justification for ‘finding’ general EU principles in (now) Article
19 TEU, which states that the CJEU shall ensure that in the interpretation and application of the
201
Tridimas (2006), p. 1.
202
See e.g. case C-7/56 Algera [1957] ECR 00081.
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