Return to homepage
Français
English
Deutsch
Español
Italiano

Decision no. 2013-346 QPC of 11 October 2013

Return to homepagePrint this pageMake this page a PDF documentAdd to bookmarks Reduce fontIncrease font

Schuepbach Energy LLC [Prohibition of hydraulic fracking in relation to the exploration and exploitation of hydrocarbons - revocation of licences to prospect]

On 12 July 2013, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d'État (decision no. 367893 of 12 July 2013) on behalf of Schuepbach Energy LLC, raising the conformity of Articles 1 and 3 of Law no. 2011-835 of 13 July 2011 on the prevention of the exploration and exploitation of liquid or gas hydrocarbon mines by hydraulic fracking and revoking exclusive licences to prospect for projects that use this technique with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to Law no. 2011-835 of 13 July 2011 on the prevention of the exploration and exploitation of liquid or gas hydrocarbon mines by hydraulic fracking and revoking exclusive licences to prospect for projects that use this technique;

Having regard to the Environmental Code;

Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the application for intervention filed on behalf of the Rhône-Alpes region by SELARL Antelis Coïc Romi partners, Attorneys at the Lyon bar, registered on 25 July 2013, along with the decision of the Constitutional Council of 2 August 2013 ruling this application inadmissible, the application for intervention filed on behalf of the Île-de-France region and the department of Seine-et-Marne by SELARL Huglo Lepage and partners, Attorneys at the Paris bar, registered on 30 July 2013, along with the decision of the Constitutional Council of 2 August 2013 ruling this application inadmissible, the application for intervention filed on behalf of the association "de défense de l'environnement et du patrimoine à Doué et aux communes environnantes" ["defence of the environment and heritage in Doué and the surrounding municipalities"], the "mouvement national de lutte pour l'environnement" ["national action for the fight in favour of the environment"] and Mr. Jean-François DIRRINGER by SELARL Huglo Lepage and partners, registered on 30 July 2013, along with the decision of the Constitutional Council of 2 August 2013 ruling this application inadmissible, the application for intervention filed on behalf of Mr. José BOVÉ by SCP Waquet, Farge, Hazan, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 31 July 2013, along with the decision of the Constitutional Council of 2 August 2013 ruling this application inadmissible, the application for intervention filed on behalf of Ms. Sylviane BAUDOIS, Ms. Martine DAURES, Ms. Marie CHIORRI and Ms. Sonia TORREGROSSA and Mr. Nicolas DAURES, Mr. Cyril DARNIS, Mr. François FAVRE, Mr. Christophe MIGNON and Mr. Stéphane LINOU by SELARL Christophe Lèguevaques, Attorneys at the Paris bar, registered on 31 July 2013, along with the decision of the Constitutional Council of 2 August 2013 ruling this application inadmissible, the application for intervention filed on behalf of Ms. Sylviane BAUDOIS, Ms. Martine DAURES, Ms. Isabelle LEVY and Ms. Sonia TORREGROSSA and Mr. André BORG, Mr. Nicolas DAURES, Mr. François FAVRE, Mr. Christophe MIGNON and Mr. Stéphane LINOU and association "Bien vivre dans le Gers" ["living well in Gers"] by SELARL Christophe Lèguevaques, registered on 5 August 2013, along with the decision of the Constitutional Council of 7 August 2013 ruling this application inadmissible and the application for intervention filed on behalf of the department of Ardèche by Helios, Attorneys at the Lyon bar, registered on 2 September 2013;

Having regard to the observations in intervention filed by association "France Nature Environnement" ["France Nature Environment"], registered on 5 and 29 August 2013;

Having regard to the observations in intervention filed on behalf of association "Greenpeace France" by SCP Faro et Gozlan, Attorneys at the Paris bar, registered on 5 August 2013;

Having regard to the observations filed on behalf of the applicant company by Mr. Marc Fornacciari, Attorney at the Paris bar, registered on 6 August 2013;

Having regard to the observations of the Prime Minister, registered on 6 August 2013;

Having regard to the documents produced and appended to the case file;

Having heard Mr. Fornacciari for the applicant company, Mr. Stéphane Le Briero, Attorney at the Paris bar, for association "France Nature Environnement", Mr. Alexandre Faro, Attorney at the Paris bar, for association "Greenpeace France" and Mr. Thierry-Xavier Girardot, appointed by the Prime Minister, at the public hearing of 24 September 2013;

Having heard the Rapporteur;

– THE ADMISSIBILITY OF THE INTERVENTIONS:

1. Considering that pursuant to the second subparagraph of Article 6 of the aforementioned regulation of 4 February 2010: "If an individual who is able to establish a special interest submits observations in intervention relation to a priority preliminary ruling on the issue of constitutionality within three weeks of the date of its transmission to the Constitutional Council as specified on its website, the latter shall rule that the entire case file shall be forwarded to the former and that these observations shall be transmitted to the parties and authorities referred to in Article 1. They shall be granted a time limit in order to respond. In urgent cases, the President of the Constitutional Council shall order such transmission";

2. Considering that associations "France Nature Environnement" and "Greenpeace France" have established a special interest to intervene in the proceedings involving the examination of this priority preliminary ruling on the issue of constitutionality; that these interventions have been ruled admissible by the Constitutional Council;

– ON THE MERITS:

3. Considering that pursuant to Article 1 of the aforementioned Law of 13 July 2011: "In accordance with the Charter for the Environment of 2004 and the principle of preventive and corrective action provided for under Article L. 110-1 of the Environmental Code, the exploration and exploitation of liquid or gas hydrocarbon mines by drilling followed by the hydraulic fracking of rock are prohibited within the national territory";

4. Considering that pursuant to Article 3 of the aforementioned Law of 13 July 2011: "I. – Within two months of the enactment of this law, the holders of exclusive licences to prospect for liquid or gas hydrocarbon mines shall submit a report to the administrative authority that issued the licence which shall specify the techniques used or intended in relation to their prospecting activity. The administrative authority shall publish this report.

"II. – If the holders of licences do not submit the report required under paragraph I or if the report mentions the actual or potential use of drilling followed by the hydraulic fracking of rock, the concerned exclusive licences to prospect shall be revoked.

"III. – Within three months of the promulgation of this law, the administrative authority shall publish in the Journal Officiel the list of the exclusive licences to prospect that have been revoked.

"IV. – The conduct of drilling following the hydraulic fracking of rock where no declaration has been made to the administrative authority in the report provided under paragraph I shall be punished by a term of imprisonment of one year and a fine of EUR 75,000";

5. Considering that, according to the applicant company, the provisions of Article 1 of the Law of 13 July 2011 violate the principle of equality before the law and freedom of enterprise and violate the precautionary principle established in Article 5 of the Charter for the Environment; that the provisions of Article 3 of the Law of 13 July 2011 violate the guarantee of rights and the right of ownership; that finally, the overall body of the contested provisions violates the principle that public policies should be reconciled with the protection and enhancement of the environment, economic development and social progress established in Article 6 of the Charter for the Environment;

. The objection alleging the violation of the principle of equality before the law:

6. Considering that, according to the applicant company, by prohibiting the usage of any procedure for the hydraulic fracking of rock in order to explore and exploit liquid or gas hydrocarbon mines, whilst this procedure involving the hydraulic fracking of rock is permitted for geothermal energy, Article 1 of the Law of 13 July 2011 violates the principle of equality before the law;

7. Considering that Article 6 of the 1789 Declaration of the Rights of Man and the Citizen provides that the law must be “the same for all, whether it protects or punishes”; that the principle of equality neither prevents the legislator from settling different situations in different ways, nor does it depart from equality in the general interest, provided that in both cases the resulting difference in treatment is directly related to the subject matter of the law providing for the different treatment;

8. Considering that, according to the state of the art, the drilling procedures followed by the hydraulic fracking of rock applied during the exploration and exploitation of hydrocarbons differ from those applied in order to stimulate the circulation of water in geothermal reservoirs with regard to the number of bore holes necessary, the nature of the rock subject to hydraulic fracking and the characteristics and conditions of use of the products that are added to water under pressure by fracking; that accordingly, in limiting the scope of the prohibition solely to drilling followed by the hydraulic fracking of rock in relation to the exploration and exploitation of liquid or gas hydrocarbon mines, the legislator dealt with distinct mining resource exploration and exploitation procedures in a different manner;

9. Considering that in prohibiting any usage of the hydraulic fracking of rock in relation to the exploration or exploitation of hydrocarbons on the national territory, the legislator intended to avert the risks that this hydrocarbon exploration and exploitation procedure is likely to entail for the environment; that it also follows from the preliminary work that the legislator considered that the hydraulic fracking of rock that is used in order to stimulate the circulation of water within geothermal reservoirs does not entail the same risks for the environment, and that it did not intend to hinder the development of the exploitation of geothermal resources; that accordingly, the difference in handling between both hydraulic rock fracking procedures resulting from Article 1 is directly related to the object of the law which provided for it;

. The objection alleging the violation of freedom of enterprise:

10. Considering that the applicant company objects to the violation of freedom of enterprise resulting from the prohibition on the use of drilling followed by the hydraulic fracking of rock;

11. Considering that the legislator is free to subject the freedom of enterprise, as resulting from Article 4 of the 1789 Declaration, to limitations associated with constitutional requirements or which are justified by general interest, provided that this does not result in harm that is disproportionate to the objective pursued;

12. Considering that the prohibition on the use of drilling followed by the hydraulic fracking of rock in relation to the exploration or exploitation of hydrocarbons on the national territory is general and absolute; that it has the effect of hindering not only the development of the exploration of "unconventional" hydrocarbons but also the pursuit of exploitation of "conventional" hydrocarbons according to this procedure; that in preventing the use of drilling followed by the hydraulic fracking of rock for all exploitation and exploitation of hydrocarbons, which are subject to an administrative licensing regime, the legislator has pursued a goal of general interest and environmental protection; that, having regard to current knowledge and the state of the art, the restriction thereby imposed both on the prospecting and exploitation of hydrocarbons resulting from Article 1 of the Law of 13 July 2011 is not disproportionate in nature having regard to the objective pursued;

. The objections alleging the violation of Articles 2, 16 and 17 of the 1789 Declaration:

13. Considering that, according to the applicant company, in providing for the revocation of exclusive hydrocarbon licences to prospect which had been legally issued to their holders, Article 3 of the Law of 13 July 2011 violates the right to respect for acquired rights guaranteed by Article 16 of the 1789 Declaration and the ownership rights of these holders of exclusive licences to prospect;

14. Considering that pursuant to Article 16 of the 1789 Declaration: "A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all"; that the legislator would violate the guarantee of rights if it were to encroach upon acquired rights in a manner that is not justified by a sufficient reason of general interest;

15. Considering that property is included under the human rights enshrined by Articles 2 and 17 of the 1789 Declaration; that pursuant to Article 17: "Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified"; that even if there is no violation of the right to property pursuant to that Article, it nonetheless follows from Article 2 of the 1789 Declaration that the limits placed on this right must be justified by a reason of general interest and be proportionate with the objective pursued;

16. Considering in the first place that paragraph I of Article 3 imposes new reporting obligations on the holders of exclusive hydrocarbon licences to prospect starting from two months from the promulgation of the Law of 13 July 2011; that in addition, Article 1 of this Law prohibits any usage of the hydraulic fracking of rock in relation to the exploration of liquid or gas hydrocarbons from the entry into force of the law; that in stipulating that the exclusive licences to prospect for hydrocarbons are to be revoked if their holders fail to comply with the new reporting obligations where they have stated that they use or intend to engage in drilling followed by the hydraulic fracking of rock, paragraph II of Article 3 infers the consequences of the new rules introduced by the legislator in relation to the exploration and exploitation of liquid or gas hydrocarbons; that, in doing so, paragraph II of Article 3 does not encroach upon any acquired rights;

17. Considering secondly that the mining licences to prospect granted by the administrative authorities with a defined scope and for a limited duration cannot be regarded as equivalent to assets over which their holders enjoy proprietary rights; that accordingly the contested provisions do not entail any deprivation of ownership under Article 17 of the 1789 Declaration or a breach of Article 2 of the 1789 Declaration;

. The objections alleging the violation of Articles 5 and 6 of the Charter for the Environment:

18. Considering that, according to the applicant company, the prohibition on the use of any procedure involving the hydraulic fracking of rock in relation to the exploration and exploitation of liquid or gas hydrocarbon mines pursuant to Article 1 of the Law of 13 July 2011 violates the precautionary principle enshrined in Article 5 of the Charter for the Environment; that both this prohibition and the revocation of exclusive licences for the exploration of liquid or gas hydrocarbon mines provided for under Article 3 of the Law of 13 July 2011 are also claimed to violate Article 6 of the Charter for the Environment, which requires that public policies be reconciled with the protection and enhancement of the environment, economic development and social progress;

19. Considering that pursuant to Article 6 of the Charter for the Environment: "Public policies must promote sustainable development. To that effect, they reconcile the protection and enhancement of the environment, economic development and social progress"; that this provision does not establish a right or freedom guaranteed under the Constitution; that its violation may not itself be invoked in support of a priority preliminary ruling on the issue of constitutionality on the basis of Article 61-1 of the Constitution;

20. Considering, on the other hand, that pursuant to Article 5 of the Charter for the Environment: "When the occurrence of any damage, albeit unpredictable in the current state of scientific knowledge, may seriously and irreversibly harm the environment, public authorities shall, with due respect for the principle of precaution and the areas within their jurisdiction, ensure the implementation of procedures for risk assessment and the adoption of temporary measures commensurate with the risk involved in order to preclude the occurrence of such damage"; that the objection alleging that the ongoing prohibition of the use of any procedure involving the hydraulic fracking of rock in relation to the exploration and exploitation of liquid or gas hydrocarbon mines violates the precautionary principle is in any case inoperative;

21. Considering that according to all of the above, the provisions of Articles 1 and 3 of the Law of 13 July 2011, which do not violate any other right or freedom guaranteed by the Constitution, must be ruled constitutional;

HELD:

Article 1.– Articles 1 and 3 of Law no. 2011-835 of 13 July 2011 on the prevention of the exploration and exploitation of liquid or gas hydrocarbon mines by hydraulic fracking and revoking exclusive licences to prospect for projects that use this technique are constitutional.

Article 2.– This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session of 10 October 2013, sat on by: Mr. Jean-Louis DEBRÉ, President, Mr. Jacques BARROT, Ms. Claire BAZY MALAURIE, Ms. Nicole BELLOUBET, Mr. Guy CANIVET, Mr. Michel CHARASSE, Mr. Renaud DENOIX de SAINT MARC, Mr. Hubert HAENEL and Ms. Nicole MAESTRACCI.

Announced on 11 October 2013.