SPE-175503-MS

Towards Reasonable European Shale Gas Regulation - the European

Commissions 2014 Recommendation and Communication on Shale Gas
Extraction
Ruven Fleming, University of Groningen

Copyright 2015, Society of Petroleum Engineers

This paper was prepared for presentation at the SPE Offshore Europe Conference and Exhibition held in Aberdeen, Scotland, UK, 8 11 September 2015.
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Abstract
Following years of deliberation, the European Union released a Recommendation on unconventional
hydrocarbons and a related Communication in 2014. Although these documents are not legally binding on
member states, they are nevertheless of great significance as they indicate, for the first time, the current
and likely future stance of EU institutions on the regulation of unconventional hydrocarbons. The paper
will trace the origins and development of these documents, as they provide vital clues for the road ahead
in European shale gas regulation.
Given the long-standing absence of specific European regulation on unconventional hydrocarbons, a
range of different views on the applicability of the existing regulatory framework evolved. The paper
highlights the main pillars of the system, which constitute the foundations of the 2014 Recommendation
on unconventional hydrocarbons. The paper will conclude that the European Commission resisted
numerous calls for implementation of an unnecessarily intrusive and legally questionable set of new rules.
Instead, it adopted a flexible and sufficiently open approach to unconventional hydrocarbons extraction.
The 2014 Recommendation may hence be characterized as a successful balancing act, which leaves
member states with considerable leeway for implementing their own regulatory strategies, while providing
much-needed assurance for investors that Europe will not be closed for shale business.

Introduction
The potential threats of groundwater contamination, irresponsible disposal of flow back,1 the repercussions of significant land use and increased emission of greenhouse gases,2 have been named in recent
1

Stefan Lechtenbhmer et al. Impacts of shale gas and shale oil extraction on the environment and on human health (European Parliament, 2011) 61
(hereinafter: Lechtenbhmer et al.); Philippe & Partners Law Firm Final Report on Unconventional Gas in Europe (2011) 101/102 available at:
http://ec.europa.eu/energy/studies/doc/2012_unconventional_gas_in_europe.pdf [accessed 12/March/2012] (hereinafter: Philippe & Partners).
2
Sachverstndigenrat fr Umweltfragen (SRU) Martin Faulstich (et al.) Fracking zur Schiefergasgewinnung Ein Beitrag zur energie- und umweltpolitischen
Bewertung
Stellungnahme
available
at:
http://www.umweltrat.de/SharedDocs/Downloads/DE/04_Stellungnahmen/2012_2016/
2013_05_AS_18_Fracking.pdf?__blobpublicationFile [accessed 2/July/2013] 44/45 (hereinafter: SRU Faulstich).

SPE-175503-MS

scientific studies as main potential threats of shale gas extraction.3 The current European law framework
on environmental protection, mainly consisting of Directives and Regulations, entails some gaps and does
not cover these issues comprehensively. The EU, hence, took recent action to develop shale gas specific
regulation in order to close the identified gaps in the existing, general framework.
As the existing secondary law norms were elaborated at a time where shale gas extraction was virtually
unknown in Europe, one would suspect that they entail provisions that do not sufficiently cover the
specific potential threats of this technique. Indeed, there are a number of issues. Probably the most
important one is that Environmental Impact Assessments (EIAs) are not compulsory for shale gas projects.
Although member states have the right to require an EIA for specific, individual shale gas projects, this
discretion does not appropriately match the level of potential environmental hazards of shale gas
extraction.
The paper will not engage in an analysis of the pre-existing EU regulatory framework, but focus on the
EUs efforts to close the gaps in the framework that have been discovered previously.4 The EU introduced
non-binding, soft law measures in this regard to create a level playing field amongst all member states in
the shape of the 2014 Shale Gas Recommendation5 and the 2014 Shale Gas Communication.6 The main
features of the Recommendation and the Communication will be highlighted and it will be considered
whether they are sufficient to close the gaps in the EU secondary law framework. Overall, it will be
concluded that these measures go a long way in addressing the perceived gaps, although they do not
succeed in closing all of them.
Despite that, rather favourable assessment, the Recommendation and the Communication have been
criticized because of their legal guise as non-binding soft law norms. The fear that individual states could
simply ignore the recommended measures if they do not fit in with their respective agenda on shale gas
extraction was expressed by some scholars.7 This peculiarity, they argued, could lead to a race to the
bottom of environmental standards, as one member state may try to undercut the other on environmental
standards in order to attract investors.8
However, this paper will conclude that the described race to the bottom would be a rather short one
and would not put the environmental standard in the EU into any real danger. The existing environmental
Directives and Regulations of the EU constitute the ultimate bottom line, below which member states are
not allowed to operate. Due to the high standard and elaborated nature of this bottom line, there currently
is no real danger for environmental standards in Europe to be lowered to any significant extent. Moreover,
member states would be ill-advised to take a chance and simply ignore these Recommendations. A
considerable number of, legally binding, EU Directives started their existence as Recommendations in the
past.9 In line with this history, the 2014 Shale Gas Recommendation explicitly threatens member states
with the introduction of legally binding norms, if the EU is not satisfied with the domestic implementation
3

Janez Potonik European Commissioner for Environment Transmission Note on the EU environmental legal framework applicable to shale gas projects
of 22nd December 2011 Annex II page 6 available at: http://ec.europa.eu/environment/integration/energy/pdf/legal_assessment.pdf [accessed 24/April/2014]
(hereinafter: Potocnik Transmission) identified seven EU Directives and one EU Regulation. Mark Broomfield Support to the identification of potential risks
for the environment and human health arising from hydrocarbons operations involving hydraulic fracturing in Europe (AEA Technology, Didcot 2012)
available at: http://ec.europa.eu/environment/integration/energy/uff_studies_en.htm [accessed 4/Sep/2014] (hereinafter: Broomfield); Lechtenbhmer et al. 61;
Philippe & Partners 101/102; Elen Stokes New EU policy on shale gas (2014) Volume 16 Issue 1 Environmental Law Review 43/44 (hereinafter: Stokes).
4
See footnote above for literature on the shortcomings of the existing framework.
5

Commission Recommendation 2014/70/EU of 22 January 2014 on minimum principles for the exploration and production of hydrocarbons (such as shale
gas) using high-volume hydraulic fracturing [2014] OJ L 39/72.
6
Commission Communication on the exploration and production of hydrocarbons (such as shale gas) using high volume hydraulic fracturing in the EU
(Communication) COM (2014) 23 final/2.
7
Leonie Reins European minimum principles for shale gas: preliminary insights with reference to the precautionary principle (2014) 22 (1) Env. Liability
26/27 (hereinafter: Reins minimum principles); Stokes 47/48.
8
Reins minimum principles 26/27; Stokes 47/48; Joanne Scott Flexibility in the Implementation of EC Environmental Law (2000) 1 YEEL 56 (hereinafter:
Scott Flexibility).
9
Stokes 48.

SPE-175503-MS

of the Recommendation. Thus, it is not unlikely that the Recommendation could turn into an EU Directive
or Regulation.
Thus, although the 2014 Shale Gas Recommendation and the 2014 Shale Gas Communication go to
some length in addressing current gaps, they do not cover all of them. Even more importantly, the 2014
measures are not legally binding on member states. However, this paper concludes that the non-binding
legal character could be an advantage, as it provides member states with the greatest possible leeway to
implement shale gas regulation that is tailored to their individual needs.10

The 2014 Shale Gas Recommendation and Communication

The Evolution of Specific European Shale Gas Regulation
Since 2012, several EU bodies, including the European Parliament and the Committee of the Regions, an
advisory body representing local and regional authorities in the European Union,11 pressed the European
Commission to introduce firm legal action on shale gas.12 Their demands were underpinned by a couple
of scientific reports on shale gas, which came to the same conclusion.13 By 2014 the Commission
responded to that request and put into place a new framework that is specifically designed to regulate
unconventional hydrocarbon extraction.14
The framework consists of two components, a Communication and a Recommendation, which should
be read together.15 The main act is the Recommendation on exploration and production of shale gas
(hereinafter: 2014 Shale Gas Recommendation).16 This Recommendation, however, is supplemented by
a Communication on the exploration and production of hydrocarbons (such as shale gas) using highvolume hydraulic fracturing in the EU (hereinafter: 2014 Shale Gas Communication).17 The Recommendation targets not only shale gas extraction, but every kind of unconventional gas extraction that uses
high-volume hydraulic fracturing.18 The term means the injection of 1 000 m 3 or more of water per
fracturing stage or 10 000 m 3 or more of water during the entire fracturing process into a well.19 The
overall aim of the Commissions unconventional extraction framework is threefold. It wishes
to ensure that opportunities to diversify energy supplies and improve competitiveness can be safely
and effectively taken up in those Member states that choose to do so,
10
11

This is particularly reasonable, given that shale gas extraction differs from country to country.
European Union Committee of the Regions available at: http://europa.eu/about-eu/institutions-bodies/cor/index_en.htm [accessed 5/Sep/2014].

12

European Parliament Resolution of 21 November 2012 on the environmental impacts of shale gas and shale oil extraction activities (2011/2308(INI))
paragraph 4 available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef-//EP//NONSGMLTAP7-TA-2012-04430DOCPDFV0//EN
[accessed 23/April/2014]; European Parliament Resolution of 21 November 2012 on industrial, energy and other aspects of shale gas and oil (2011/
2309(INI)) paragraph 2 available at: http://www.europarl.europa.eu/sides/getDoc.do?typeTA&referenceP7-TA-2012-0444&languageEN [accessed
4/Sep/2014]; EUs Assembly of Regional and Local Representatives Draft Opinion of the Committee of the Regions local and regional authorities perspective
on shale/tight gas and oil (unconventional hydrocarbons) paragraphs 8-11 available at: http://cor.europa.eu/en/news/Pages/fracking-environmentalimpact.aspx [accessed 4/Sep/2014].
13
AMEC Ltd. Technical Support for Assessing the Need for a Risk Management Framework for Unconventional Gas Extraction (2014) available at:
http://ec.europa.eu/environment/integration/energy/uff_studies_en.htm [accessed 4/Sep/2014] viii, xiii, xiv, 100/101, 104/105 and 107; ICF International Ltd.
Mitigation of climate impacts of possible future shale gas extraction in the EU: available technologies, best practices and options for policy makers (2014)
available at: http://ec.europa.eu/environment/integration/energy/uff_studies_en.htm [accessed 4/Sep/2014] 2/3 and 88/89; Broomfield xv; Lechtenbhmer et
al. 9/10 and 78/79; Gottardo 8 and 42.
14
However, its main aim is shale gas extraction, which is already made clear by the title of the relevant documents. In the titles of both, the Recommendation
and the Communication, shale gas is the only form of energy that has been explicitly mentioned, which highlights its importance.
15
2014 Commission Shale Gas Communication page 4.
16

Commission Recommendation 2014/70/EU of 22 January 2014 on minimum principles for the exploration and production of hydrocarbons (such as shale
gas) using high-volume hydraulic fracturing [2014] OJ L 39/72.
17
Commission Communication on the exploration and production of hydrocarbons (such as shale gas) using high volume hydraulic fracturing in the EU
(Communication) COM (2014) 23 final/2 (hereinafter: 2014 Commission Shale Gas Communication).
18
See title of both documents.
19

Article 2 (a) Commission Shale Gas Recommendation. For reasons of coherence and readability, the author will use the generic term shale gas extraction
when referring to high- volume hydraulic fracturing.

SPE-175503-MS

to provide clarity and predictability for both market operators and citizens, including for exploration projects,
to fully consider greenhouse gas emissions and management of climate and environmental risks,
including to health, in line with public expectations.20
Therefore, the Recommendation and the Communication can be seen as an attempt of the Commission
to strike a balance between energy security interests and environmental protection needs. The indirect
acknowledgement that existing European legislation has not yet succeeded in striking that balance
constitutes a remarkable U-turn by the European Commission. Two years earlier, in 2012, the, then
environmental commissioner Janez Potonik was still stating that existing EU legislation covered shale
gas projects comprehensively, from planning until cessation.21 Now, two years later, the Commission
acknowledges gaps in this existing legislation, by stating in the 2014 Shale Gas Communication that
Since the EU environmental legislation was developed at a time when high volume hydraulic
fracturing was not used in Europe, certain environmental aspects associated with the exploration and
production of fossil fuels involving this practice are not comprehensively addressed in current EU
legislation.22
In closing these gaps, the framework, however, takes particular care not to impose a particular
approach to shale gas regulation on member states. Instead, the framework wants to create a level playing
field for those states that decide to take a permissive approach to shale gas extraction.23 Thus, the
framework encourages all member states that wish to engage in shale gas extraction, to apply a set of
protective measures as common minimum regulatory standards in addition to existing EU legislation.24
These protective measures, do address a number of existing gaps in EU legislation. First of all, it urges
member states to carry out a strategic environmental assessment (SEA).25 This SEA should always be
carried out prior to issuing a licence that may lead to the use of high volume fracturing.26 By taking such
a comprehensive approach, the Commission clarifies that it deems the carrying out of an SEA by member
states necessary, a fact that was not clear under hitherto existing SEA legislation.
The Commission addresses the issue of environmental impact assessments (EIAs) for individual shale
gas projects in a similar vein and calls upon member states to take the necessary measures to ensure that
an EIA is carried out for each project.27 However, by simply passing the ball to member states, the EU
did not adequately address the main gap in EU EIA legislation. The current flaw is that EIAs are not
obligatory for shale gas projects under the EIA Directive. Instead of resolving that issue, which emanated
from the EUs sphere of influence, the Commission calls upon member states to resolve the issue by
exercising their discretionary powers in a way that they order an EIA individually for every shale gas
project. If the Commission, as is apparent from the Recommendation, takes the view that an EIA should
be carried out for every shale gas project, it should insert shale gas extraction into Annex I of the EIA
Directive. Thus, the gap in the EIA Directive is not adequately addressed by the framework.
With regards to the IPPC Directive and the IED, the preamble of the Recommendation merely
mentions that they apply to shale gas extraction insofar as specific parts of the shale gas extraction process
20
21
22
23
24
25
26
27

2014 Commission Shale Gas Communication page 3.

Potocnik Transmission 6.
2014 Commission Shale Gas Communication page 8.
Preamble 9 Commission Shale Gas Recommendation; 2014 Commission Shale Gas Communication page 4.
Article 1 and Preamble 5 and 9 Commission Shale Gas Recommendation.
Article 3.1 Commission Shale Gas Recommendation.
Article 3.1 Commission Shale Gas Recommendation.
Article 3.3 Commission Shale Gas Recommendation.

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fall under Annex I IED.28 However, that assessment does not further clarify the main issue of which
specific part of Annex I could be applicable to shale gas extraction. Thus, the issue of the overall
application of the IPPC and the IED has not been adequately addressed.
The 2014 Shale Gas Communication entails a pledge by the EU to look into the issue of a specific Best
Available Technique Reference Document (BREF) for shale gas extraction.29 It generally urges member
states to ensure that shale gas operators use the Best Available Techniques (BAT) for shale gas
operations.30 Concrete action by the EU in this regard shall involve the review of the existing BREF on
extractive waste under the Mining Waste Directive.31 This action is designed to ensure that waste is
appropriately handled and treated and the risk of water, air and soil pollution is minimised.32 Since the
non-existence of a BREF on shale gas extraction has been identified as a gap in the existing Mining Waste
Directive, this action would be adequate to address that shortcoming. However, the framework does not
as such resolve the issue but merely entails a vow to do so in the future.
The issue that the Seveso Directives do not directly apply to shale gas extraction is addressed by the
framework in the same way in which the application of the IPPC Directive and IED have been treated.
The 2014 Shale Gas Recommendation merely mentions that the Seveso Directives apply if the thresholds
of Annex I of the Seveso III-Directive are exceeded.33 However, this does not clarify if and under which
circumstances exactly shale gas projects would meet these thresholds and would, accordingly, be covered
by the Seveso Directives. Thus, the issue of the overall application of the Seveso Directives to shale gas
extraction has not been elaborated upon.
The framework, however, addresses the issue of water management under the Water Framework
Directive and the Groundwater Directive. It reinforces the currently prevailing view that direct discharges
of pollutants into the groundwater are prohibited34 and, moreover, calls upon member states to urge
operators to use as little water as possible in shale gas extraction processes.35 Furthermore, it requires
member states to establish minimum distances that should lie between a shale gas site and a water
protection area and minimum depth limitations between the fracturing area and groundwater, in order to
avoid pollution and contamination.36 Crucially, baseline studies of shale gas sites with regard, inter alia,
to water, soil, and air quality should be carried out37 and these factors should be monitored consistently.38
As especially the latter has been identified as a gap in both Directives, it may be assessed that the
framework closes that gap.
The use of chemicals during shale gas extraction is of considerable concern to the Commission. The
framework asks member states to ensure that as few chemicals as possible are being used in shale gas
operations.39 However, if chemicals are being used, information about their nature must be disseminated
amongst the public.40 The framework addresses the current shortcoming in the REACH regulations that
28
29
30
31
32
33
34
35
36
37
38
39
40

Preamble 7 Commission Shale Gas Recommendation.

2014 Commission Shale Gas Communication page 9.
Article 9.1 Commission Shale Gas Recommendation.
2014 Commission Shale Gas Communication page 9.
2014 Commission Shale Gas Communication page 9.
Preamble 7 Commission Shale Gas Recommendation.
Article 5.4 Commission Shale Gas Recommendation.
Articles 10.2, 9.2 and 9.3 Commission Shale Gas Recommendation.
Article 3.2 Commission Shale Gas Recommendation.
Article 6 Commission Shale Gas Recommendation.
Articles 11.2 and 11.3 Commission Shale Gas Recommendation.
Articles 10.1 (b) and 10.2 Commission Shale Gas Recommendation.
Article 15 Commission Shale Gas Recommendation.

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no consistent, unified term for the use of substances for shale gas extraction exists.41 Moreover, the
Commission vows to propose to the European Chemicals Agency certain changes in the existing database
of registered chemicals under REACH to facilitate the search of information on registered substances for
hydraulic fracturing purposes.42 Overall, the framework addresses the identified gaps in the REACH
regulations appropriately.
Furthermore, the framework dedicates one article to environmental liability issues.43 It calls upon
member states to apply the provisions on environmental liability to all activities taking place at a shale gas
extraction site.44 This request shall be explicitly understood as including those activities that currently do
not fall under the scope of the Environmental Liability Directive.45 This clarification closes the gap that
the Environmental Liability Directive does not include strict liability for greenhouse gas emissions and
overbearing use of land, as it stands.
The regulation of greenhouse gas emissions from shale gas extraction has been one of the three main
purposes of the 2014 framework.46 Measured against this aspiration, the framework does not deliver
sufficiently. Although greenhouse gas emissions are now included in the strict liability regime, the issue
that shale gas extraction as an activity is not covered by the emissions trading system has not been
resolved and is not addressed by the framework.
Finally, the framework entails a number of stipulations that relate to the issuing of licenses and pertain
to the Hydrocarbons Licensing Directive. The framework urges member states to ensure that their national
regulatory bodies are efficiently co-ordinated47 and have adequate resources at their disposal48 to carry out
their tasks of appraising applications for shale gas licences.
The Commission wants to produce a public scoreboard on the results of the framework.49 This
mechanism is designed to highlight to the public the implementation of and compliance with the
framework by member states.50 A review on the effectiveness of the framework shall be conducted within
18 months after coming into force.51 Depending on the outcome of this review, the Commission is going
to determine if further, more stringent, regulatory action on shale gas extraction is required.52
Critical Assessment of the Legal Nature of the 2014 Framework
The crucial overall aspect of the Commissions 2014 framework on shale gas extraction is its legal guise
as soft law.53 The adoption of a Recommendation and a Communication on shale gas extraction is in line
with article 288 TFEU, which outlines the acts of secondary EU law that are available to the European
legislator. Possible measures include the issuance of Regulations, Directives, Decisions, Recommendations and Opinions.54 While Regulations, Directives and Decisions are legally binding to varying degrees,
article 288 TFEU states explicitly that Recommendations and Opinions shall have no binding force. A
41
42
43
44
45
46
47
48
49
50
51
52
53
54

Article 10.1 (a) Commission Shale Gas Recommendation.

2014 Commission Shale Gas Communication page 9.
Article 12 Commission Shale Gas Recommendation.
Article 12.1 Commission Shale Gas Recommendation.
Article 12.1 Commission Shale Gas Recommendation.
2014 Commission Shale Gas Communication page 7.
Articles 4 and 5 Commission Shale Gas Recommendation.
Article 13 Commission Shale Gas Recommendation.
Article 16.2 Commission Shale Gas Recommendation.
Article 16.2 Commission Shale Gas Recommendation.
Article 16.3 Commission Shale Gas Recommendation.
Article 16.4 Commission Shale Gas Recommendation.
Reins minimum principles 26/27; Stokes 47/48.
Article 288 TFEU.

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Recommendation, thus, has no immediate binding effect upon member states.55 It constitutes a form of
soft law56 and the EU may accordingly not enforce Recommendations directly.57
However, this does not mean that Recommendations have no legal effect: the ECJ decided that national
courts must take them into account, especially where the Recommendation helps to clarify national
provisions.58 Thus, a Recommendation is a specific tool for the interpretation of national law, directed to
national courts and administrative authorities which are involved in formal legal processes related to shale
gas extraction.59 Member states, therefore, are not obliged to comply with a Recommendation.60 They still
have the right to pick their own approach to shale gas regulation. The EU merely recommends a
permissive, but protective approach.
This EU approach to choose a legally non-binding tool for shale gas regulation attracted intense
criticism from environmental pressure groups.61 The European Commission itself had initially put
forward four different policy options for EU shale gas regulation, ranging from the now adopted
Recommendation to a firm, legally binding Directive.62 The Commission prepared an impact assessment
to outline repercussions of all four options, which concluded that, a Recommendation
with its non-binding character, is the least effective of the policy options analysed. Clarification of the
legal requirements for shale gas operations would provide a more secure environment for investment and
therefore enable shale gas developments.63
It could be argued that there is a danger of member states further pursuing their respective individual
agenda on shale gas and ignoring the 2014 framework, as it is not legally binding and therefore no
sanctions are attached to it. Moreover, the adoption of a legally non-binding Recommendation will hardly
lead to stringent shale gas regulations among European countries. Instead of creating a level playing field
on shale gas for all member states, as claimed by the 2014 Shale Gas Recommendation64 and Communication,65 the opposite could happen.
With the 2014 framework, the EU essentially leaves shale gas regulation to the member states and that
could instigate competition amongst them, resulting in a race to the bottom of environmental standards.66 Member states are keen to attract investors to their territory and this is no different in shale gas
cases. In order to prevail in this competition for foreign money, some member states might choose the
strategy to lower their environmental standards in order to bring down costs for investors.67 If other

55

Paul Craig and Grainne de Burca EU Law Texts Cases and Materials 5th edition (Oxford University Press, Oxford 2011) 107 (hereinafter: Craig/De
Burca).
56
Craig/De Burca 107.
57
58

Calliess/Ruffert article 288 AEUV paragraph 95.

Case C-322/88 Salvatore Grimaldi v Fonds des maladies professionnelles [1989] ECR I-4407paragraph 18.

59

Michael Tarka The legal consequences of European Commission recommendations on minimum principles for shale gas in Poland available at:
http://www.shale-gas-information-platform.org/categories/legislation/expert-articles/tarka-article-poland.html [accessed 18/Dec/2014] (hereinafter: Tarka).
60
Calliess/Ruffert article 288 AEUV paragraph 95.
61

See for instance Friends of the Earth Europe opens doors to dangerous fracking available at: http://www.foeeurope.org/shale_gas_framework_220114
[accessed: 18/Dec/2014].
62
European Commission Executive Summary of the Impact Assessment on Communication COM (2014) 23 final of 22nd January 2014 available at:
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uriCELEX:52014SC0022&fromEN [accessed 2/April/2014] (hereinafter: Commission Impact Assessment).
63
Commission Impact Assessment 4.
64
65
66

2014 Shale Gas Recommendation Preamble 9.

2014 Shale Gas Communication 4.

More on the race to the bottom- issue may be found at Maria Lee EU Environmental Law: Challenges, Change and Decision-Making (Hart Publishing,
Oxford 2005) 11 (hereinafter: Lee); Scott Flexibility 56; Jan H Jans and Hans H B Vedder European Environmental Law 3rd edition (Europa Law Publishing,
Groningen 2008) 13 (hereinafter: Jans/Vedder).
67
Scott Flexibility 56.

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member states start adapting to that strategy it could result in a race to the bottom.68 One of the most
effective ways to suspend this race is the establishment of a legally binding European minimum
standard;69 the 2014 framework fails to do just that.
However, this argumentation turns a blind eye to the fact that the 2014 Shale Gas Recommendation and
Communication are not the only measures, which regulate shale gas extraction at EU level; they are
merely the ones that apply most directly. Even if a member state would choose not to implement the 2014
framework measures, this does not result in a situation where no EU environmental standards apply to
shale gas extraction. At least seven different pieces of secondary EU legislation are applicable to shale gas
extraction, which all have environmental protection as their main goal.70 This net of Directives and
Regulations effectively provides a minimum EU wide standard that constrains the risk of a race to the
bottom in shale gas regulation.
Moreover, the fear that member states might simply ignore the Recommendation because it is not
legally binding appears to be ill-founded. The 2014 Shale Gas Recommendation entails provisions, which
indicate that the current voluntary approach is about to change rather rapidly if the member states do not
comply with it. Member states only have six months to implement the recommended measures71 and,
thereafter, shall submit crucial data on the implementation of measures every twelve months.72 The
Commission will publish this data in the form of a scoreboard, as mentioned earlier.73 Crucially, the
Commission vows to review the submitted data 18 months after its publication74 and should it not be
satisfied with the progress, it reserves the right to decide whether it is necessary to establish legallybinding provisions.75
This threat is not hollow, as Recommendations have, in the past, often been forerunners of legally
binding Directives.76 The current 2014 Recommendation might, hence, represent a mere first step on an
EU ladder that could in the future lead to more robust shale gas regulation. Thus, member states are
subjected to an implicit threat of the EU to introduce binding legislation, if they do not comply with the
2014 Shale Gas Recommendation.
Furthermore, the EUs current soft law approach to shale gas regulation arguably circumvents some
legal pitfalls associated with overbearing EU regulations. Those may result from the question of
consistency with article 194 (2) TFEU, and from the principles of subsidiarity and proportionality.
Although article 194 (2) TFEU might preclude legally binding EU shale gas regulations, this article cannot
stop the EU from giving its view on an important issue like shale gas extraction in a legally non-binding
form. Opting for a non-binding form of EU shale gas regulation is an adequate way for EU law to
transpose the factual concurrency of energy and environmental issues into a law with an adequate dual
legal basis in article 192 TFEU as well as in article 194 TFEU.
Moreover, Members of the European Parliament (hereinafter: MEPs) raised the concern that legally
binding, EU-wide shale gas regulations could conflict with the principle of subsidiarity.77 In a debate in
68
69
70
71
72
73
74
75
76
77

Lee 11; Scott Flexibility 56.

Jans/Vedder 13; Lee 11; Scott Flexibility 56.
Potocnik Transmission Annex II page 6.
2014 Shale Gas Recommendation preamble 11.
2014 Shale Gas Recommendation article 16.1.
2014 Shale Gas Recommendation article 16.2.
2014 Shale Gas Recommendation article 16.3.
2014 Shale Gas Recommendation article 16.4.
Stokes 48; Tarka.

European Parliament debate of 20 November 2012 on Environmental Impacts of Shale Gas and Shale Oil Extraction Activities - Industrial, Energy and
Other Aspects of Shale Gas and Oil CRE 20/11/2012 - 11 available at: http://www.europarl.europa.eu/sides/
getDoc.do?typeCRE&reference20121120&secondRefITEM-011&languageEN [accessed 2/Sep/2014] (hereinafter: European Parliament 20/Nov/
2012) Speeches of Jan Brezina, Peter Liese, Franoise Grossette and Jim Higgins.

SPE-175503-MS

the European parliament MEP Jim Higgins argued with respect to shale gas extraction that, in line with
the principle of subsidiarity, member states should be free to decide on their own energy policy.78
The principle of subsidiarity, entailed in article 5 (3) TFEU, prescribes that the EU shall act in areas
of shared competence, only if and insofar as objectives of a regulatory action cannot be sufficiently
achieved by member states.79 This principle of subsidiarity has been explicitly designed to curb and
confine the activities of the EU.80 Matters should be dealt with at the level closest to those affected by
them and EU action should be the exception, reserved for cases where the Union is better placed to act.81
There is no indication that prudent and effective shale gas regulation may not be achieved by member
states. Conversely, however, it could be argued that effective shale gas regulation might be more
achievable at member state than at EU level. Shale gas extraction is not a process that lends itself to
complete standardisation. Crucial geological features, such as the proximity of shale plays to aquifers, the
depths at which the shale plays are buried and how brittle they are will alter, sometimes substantially, from
region to region. That is why the fracturing fluid is prepared for each well individually. And that is why
disposal and treatment methods for the flow back differ widely. It, therefore, seems to be reasonable for
the EU to constrain itself to the recommendation of processes and to offer help to member states.
In addition, the principle of subsidiarity is closely related to the principle of proportionality,82 a
relationship epitomized by the fact that subsidiarity and proportionality have been defined together in one
additional protocol to the TFEU on subsidiarity and proportionality.83 Thus, subsidiarity must be viewed
in the context of proportionality, meaning that actions must not go beyond what is necessary to achieve
a regulatory objective.84 The European Council established that the principle of proportionality requires
the use of non-binding instruments, such as Recommendations, wherever possible.85 This statement was
made with particular regard to EU environmental legislation86 and received widespread support in the
legal literature.87

Conclusion
Recent technological advancements mean that shale gas extraction is starting to become a real possibility
in Europe.88 If this development shall not go unregulated, the extent to which current EU law applies to
shale gas extraction has to be assessed. Such an assessment provides a crucial starting point for
discussions on the regulation of shale gas extraction in currently undecided member states. As this work
is concerned with the legal interplay of environmental protection and energy security it is important to
understand how EU regulations predetermine that interplay in the case of shale gas extraction.
In the face of shortcomings in the existing EU secondary law framework in view of shale gas
regulation, the EU performed a remarkable U-turn in its appraisal. In 2012 the then European commissioner for the environment asserted that the existing framework covered issues of shale gas extraction
comprehensively. In 2014, the Commission withdrew that assessment and took action specifically in
78
79
80
81
82

European Parliament 20/Nov/2012 Speech of Jim Higgins.

Article 5 (3) TFEU; Craig/De Burca 94/95.
Craig/De Burca 94.
This may be deduced from the systematic of article 5 (3) TFEU; see also: Craig/De Burca 94.
Craig/De Burca 94.

83

Protocol (No 2) on the application of the principles of subsidiarity and proportionality [2012] OJ C 326/206 (hereinafter: Protocol on subsidiarity and
proportionality).
84
Article 5 (4) TFEU; for its interpretation see House of Lords European Union - Fourteenth Report paragraphs 74/75 available at: http://
www.publications.parliament.uk/pa/ld200405/ldselect/ldeucom/101/10105.htm [accessed 8/Sep/2014].
85
Council Resolution on the drafting, implementation and enforcement of Community environmental law [1997] OJ C 321/1; Jans/Vedder 14.
86
87
88

Jans/Vedder 14.
Gerd Winter Subsidiaritt und Deregulierung im Gemeinschaftsrecht (1996) 3 Zeitschrift fr Europarecht 261/262.
2014 Commission Shale Gas Communication 2/3.

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relation to shale gas in order to close perceived gaps. They adopted the 2014 framework, consisting of the
2014 Shale Gas Recommendation and the 2014 Shale Gas Communication.
Both documents recommend to member states that wish to engage in shale gas extraction a set of
measures and operating standards in order to create a level playing field among those states. The measures
indeed go some way in closing some of the pre-existing gaps. The framework urges member states to carry
out a strategic environmental assessment (SEA) prior to issuing licences that may lead to shale gas
extraction. The 2014 Shale Gas Communication entails a pledge of the EU to look into the issue of a
specific Best Available Technique Reference Document (BREF) for shale gas extraction under the Mining
Waste Directive. This action is designed to ensure that waste is appropriately handled and treated and the
risk of water, air and soil pollution is minimised.
Moreover, the framework reinforces the monitoring requirements under the Water Framework Directive and the Groundwater Directive. Baseline studies of shale gas sites with regard, inter alia, to water,
soil, and air quality should be carried out89 and their results should be benchmarked against future results
of comprehensive monitoring exercises. The framework also addresses the current shortcoming in the
REACH regulations and wants to create a consistent, unified term for the use of substances for shale gas
extraction. Furthermore, the framework calls upon member states to apply the provisions on environmental liability to all activities taking place at a shale gas extraction site.90 This request shall be explicitly
understood as including strict liability for greenhouse gas emissions and overbearing use of land, which
currently do not fall under the scope of the Environmental Liability Directive.
However, the European Commission failed to close some other gaps. Most notably, it called upon
member states to ensure that an EIA is carried out for each shale gas project but took no action to insert
shale gas projects into Annex I of the EIA Directive. This move would have made EIAs obligatory for
all shale gas projects, already at EU level. By simply passing the ball back to member states, the EU did
not adequately address the main gap in EU EIA legislation. Moreover, the framework does not address
the issue of applicability of the IPPC Directive and IED as well as the applicability of the Seveso
Directives to shale gas extraction. Shale gas extraction as an activity has also not been inserted into the
emissions trading system.
However, the 2014 framework on shale gas extraction has an even bigger sting in the tail. It does not
actually implement the described measures, but merely recommends to member states to take these
measures into account. The framework has been moulded into a Recommendation and a Communication,
secondary EU law measures with no direct binding force.
The non-binding nature of these EU regulations on shale gas extraction became the main point of
criticism. It was argued that non-binding legislation is an ineffective way to create a level playing field
for shale gas extraction for all member states, since individual states are allowed to ignore the measures
outlined in the Recommendation, if they do not fit in with their respective agenda. This could lead to a
race to the bottom of environmental standards, as one member states could try to undercut the other on
environmental compliance costs for foreign investors.
However, this race to the bottom could not last forever, since the existing environmental law
framework of the EU constitutes the bottom line for member states. Moreover, member states would be
ill advised to simply ignore the Recommendation, as it entails provisions, which enable the EU to monitor
its implementation by member states. A review of the effectiveness of the framework shall be conducted
within 18 months after its coming into force. Depending on the outcome of this review, the Commission
is going to determine if further, more stringent, regulatory action on shale gas extraction is required. In
fact, this is the way in which a considerable number of Directives came into force in the past.
89
90

Article 6 Commission Shale Gas Recommendation.

Article 12.1 Commission Shale Gas Recommendation.

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Ultimately, the non-binding character of the 2014 Shale Gas Recommendation is in some respects an
advantage. The principle of subsidiarity, under which member states should take responsibility for matters
that can be decided at their level, is honoured. Subsidiarity must also be viewed in the context of
proportionality. The principle of proportionality requires the use of non-binding instruments, such as
Recommendations, in EU environmental legislation, wherever possible.
Thus, the EU assessed that its regulatory framework entails a number of gaps with regards to shale gas
extraction, but instead of closing these gaps, the EU decided to leave that issue to the member states. The
national regulatory frameworks, hence, take centre stage for shale gas regulation. Member states have the
right to take different approaches to shale gas extraction. Permissive and prohibitive regulatory views on
shale gas extraction vary from country to country. As major European countries like Germany have not
yet finally decided on their approach to shale gas extraction, these countries should assess the prevailing
approaches of other member states for their effectiveness.