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6 Application of principles to shale gas regulation
In this chapter the current shale gas regulation (and future developments), set out in Chapters 3
and 4, will be reviewed with the principles set out in Chapter 5. When assessing this, special
attention will be paid to the problems pointed out at the end of Chapters 3 and 4. These problems
will also be discussed separately, in light of the principles, in the final conclusion (Chapter 7).
The purpose of this chapter is to offer a way of looking at this problem, without giving the
presumption that this is the only way to look at this. Applying the principles to shale gas regulation
does however give a certain direction, which is not yet detectable in this manner.
6.1 The subsidiarity and decentralisation principles
6.1.1 The subsidiarity principle
As set out in Chapter 5, the principle of subsidiarity constitutes three pre-conditions (no exclusive
competence, cannot be sufficiently achieved by MS and action should 'better be achieved at EU
level') and with regard to the environment (and energy) also three justification grounds
(transnational environmental effects, conflict with Treaty requirements and/or clear EU benefits in
scale or effects). This can be seen as the general assessment framework to which the current EU
shale gas regulation has to be reviewed.
Before assessing the general assessment framework, some additional information should be given
on the field of energy in combination with the subsidiarity principle. According to Article 194(2)
TFEU, the EU shall establish measures in order to achieve the objectives enumerated in paragraph
1. However, such measures cannot affect a MS’ right “to determine the conditions for exploiting its
energy resources, its choice between different energy sources and the general structure of its
energy supply”. These three mentioned rights or choices should not be breached by an EU action.
If EU measures would affect those rights or choices, it seems that the subsidiarity principle would
be threatened. From this paragraph it appears that the subsidiarity principle is quite strict in the
field of energy. On the other hand, it has been argued that exceptions to general principles or
general rules should be interpreted strictly, e.g. when that principle aims to facilitate the exercise of
fundamental freedoms guaranteed by the Treaty. 407 Article 194 TFEU enumerates the aims of
energy policy in the first paragraph. With regard to shale gas activities especially the second and
third aims are relevant: the ensuring of security of energy supply in the Union (b) and the
promotion of the development of new and renewable forms of energy (c). It could be argued that
those aims of paragraph 1 should not be hindered by a broad application of MS' rights under
paragraph 2. 408 In other words: the 'exceptions' of Article 194(2) TFEU to the subsidiarity principle
of Article 5(3) TEU, should not hinder the aims and general rules set out in Article 194(1) TFEU.
With regard to the field of energy, there was an interesting discussion on the principle of
subsidiarity with regard to binding EU energy efficiency targets (set by the Energy Efficiency
Directive 2012/27/EU). Some MS opposed those targets, advocating that this subject belonged to
their own competence. Other MS recognised the need in order to reach efficient measures in all
the MS and thereby the contributions to the fight against climate change. 409 Finally, the Directive
entered into force on 4 December 2012. It should be mentioned that the outcome of such
407
See e.g. Case C-476/01 Felix Kapper [2004] ECR I-5205, paragraph 72.
408
Legal Memo of Client Earth, The principle of subsidiarity and the Proposal for an Energy Efficiency Directive, October
2011.
409
Krämer (2011), p. 19.
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