On 11 October 2013, the French Constitutional Court decided that the articles 1 and 3 of the French law 2011-835 of 13 July 2011 prohibiting the hydro fracturing for the purpose of the exploration and extraction of unconventional hydrocarbons are valid and in compliance with the Constitution of France.
Therefore, the exploration and extraction of shale gas or oil by hydro fracturing remains prohibited.
No breach of the principle of equality
The Court considers that the interdiction to use the hydro fracturing only in respect to the unconventional hydrocarbons while this method remains permitted in the geometric is compliant with the principle of equality because the risks of using the method for unconventional hydrocarbons and for geometric resources are not the same.
No breach of the principle of the free entrepreneurship
There is no breach of the principle of free entrepreneurship since the legislator can restrict such freedom in view of the protection of the general interest of protecting the environment. This restriction, given the current status of the technical knowledge, is not disproportional.
No breach of the right on property
The exploration permits are granted authorization by the authorities for a limited duration. Therefore, the permits do not give their holder property rights.
No breach of the principles set forth in the Environmental Chart
The provision of Article 6 of the Chart requires that the public authorities must reconcile sustainable development with social progress and economic development; does not set forth a principle or a freedom protected by the Constitution. Therefore, the compliance of legal provisions with this Article 6 cannot be challenged before the Constitutional Court.
There is no breach of the principle of precaution because the provisions of articles 1 and 3 of the French law n 2011-835 of 13 July 2011 set forth an interdiction which is permanent.
Note: The proceedings started by the claim of the US company Schuepach Energy LLC which had obtained two exploration permits declared null and void on the grounds of the law n 2011-835 of 13 July 2011.
In the framework of these proceedings, a request had been made to the Constitutional Court to declare articles 1 and 3 of the law prohibiting the hydro fracturing null and void because in breach with French Constitution.
Lubomir Roglev is a partner in the Paris office of Fasken DuMoulin and has acquired expertise in the field of corporate finance, large-scale mining, energy and infrastructure projects, notably with respect to inter-governmental agreements, project agreements, shareholders agreements, and equity and quasi-equity financing. He also has a litigation, court, and arbitration practice in his areas of expertise. Mr. Roglev may be contacted at lroglev