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

specific provision, namely Article 194(2) TFEU. It should be determined whether the right of MS to
determine the conditions for exploiting its energy resources, its choice between different energy
sources and the general structure of MS their energy supply are threatened. It should first be
pointed out that the Recommendation of the Commission is formally not binding. This is also
confirmed by the preamble to the Recommendation which states that "[t]his set of rules neither
implies that Member States are under any obligation to pursue the exploration or exploitation of
activities using high-volume hydraulic fracturing if they choose not to nor that Member States are
prevented from maintaining or introducing more detailed measures matching the specific national,
regional or local conditions." Hence, it is debatable whether it could affect anything at all within the
MS. The (non) binding nature of the Recommendation is however also questionable. Although it is
not directly binding, it is indirectly binding as soft law. 416 Moreover, it seems that the
Recommendation mostly bundles already existing legislation, which is thus already binding. Only a
few (not unimportant) additions are incorporated into the Recommendation, such as e.g. the
expansion of the scope of the EIA directive (to include shale gas activities) and the expansion of
the environmental liability directive. Moreover, the Commission will closely monitor the
Recommendation’s application by comparing the situation in the MS in a publicly available
scoreboard. Also, the Commission will review the Recommendation's effectiveness, which will
include an assessment of the Recommendation’s application, and will consider the progress of the
BAT information exchange and the application of the relevant BAT reference documents. As
Roggenkamp and Boekholt point out, MS cannot easily disregard this Recommendation. The
publicly available scoreboard will probably put a lot of (political) pressure on the MS to comply with
it. Roggenkamp and Boekholt argue that this equates to a sort of naming and shaming. 417
Hence, when assuming that it could have binding effect, does it infringe Article 194(2) TFEU? It is
clear that the Recommendation does not oblige MS to extract and produce shale gas, since this is
explicitly stated. Thus, MS' choice between different energy sources and the general structure of its
energy supply is not infringed. It could however be argued that the Recommendation affects MS'
right to determine the conditions for exploiting its energy resources. The Recommendation inter
alia invites (or actually 'obliges' if seen as binding) MS to adopt certain procedures or regulation on
the selection of the exploration and production sites, on the determination of the baseline study, on
the infrastructure of a production area, on monitoring requirements, on environmental liability and
financial guarantees, on administrative capacity, on the closure of obligations and on the
dissemination of information. Some of these 'invitations' were prior to this Recommendation not
already included in an EU directive or regulation. It would seem from Article 194(2) TFEU that
some of these matters are something for the MS to decide upon. The Recommendation does state
that MS should not be prevented from maintaining or introducing more detailed measures. This
would however not mean much for the MS that do not have any national legislation on this matter;
they are still 'invited' (or politically obliged) to adopt the Recommendation. On the other hand, as
mentioned at the beginning of this paragraph, the exceptions of Article 194(2) TFEU should not
hinder the aims set out in Article 194(1) TFEU. This probably constitutes a political decision, which
could be assessed with the proportionality principle. This means that the content and form of a
Union action may not exceed what is necessary to achieve the objectives of the Treaties, in this
case the objectives enumerated in Article 194(1). This is a difficult question to answer. Since the
Recommendation is in principle not binding, such an argument would probably strand before the
Court. It would then be interesting to keep an eye on the Commission in 1,5 years, when she is
obliged to review the Recommendation's effectiveness. A clear breach of Article 194(2) TFEU
would be if the Commission would (due to e.g. efficiency, such as the Efficiency Directive, or
security of supply reasons) adopt a certain approach which obliges the MS to extract a certain
amount of shale gas in order to gain a Union wide greater security of supply.
416
Van der Feltz (2014), p. 17. Here, Van der Feltz refers to J. Luijendijk & L.A.J. Senden, 'De gelaagde doorwerking van
Europese administratieve soft law in de nationale rechtsorde', SEW 2011/7-8; and to C.C. van Dam, 'De doorwerking van
het Europese administratieve soft law. In strijd met Nederlandse legaliteit?', NALL 2013.
417
Roggenkamp & Boekholt (2014).
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