Paper long abstract:

Energy and environmental law and policy are both "shared competences" in Euroean Union law. Moreover, Article 194 TFEU on the one hand asks for common action to reach the energy and environmental objectives, but on the other hand, the second paragraph leaves it to the Member States to exploit their resources and to choose their internal supply structure.

In regard to shale gas, the Member States have different approaches on the issue. The latest situation where this became apparent was the blocking of the mandatory EIA for shale gas projects by the Council, even if the European Parliament voted for the inclusion of hydraulic fracturing in the Commission's proposal. Shale gas extraction is a highly political topic, the position the Council took is not surprising considering the ongoing activities in Member States such UK and Poland who are generally keen on promoting the resource to secure its internal energy supply. However, the Commission and some other EU Member States urge to establish a common playing field in the area of unconventional gas extraction.

This paper will assess to what extent the Union has competence to act and how the issue of shale will affect the Union's quest for a common energy policy in the absence of a Treaty provision: Do the Energy Title and its opting out mechanism in the second paragraph prevent a common energy policy (on unconventional gas resources) in the future? Does it lead to a fragmentation of EU energy law?