Hidden in plain sight

The escalating climate crisis and major advances in climate litigation question the existence of constitutional protection for environmental rights in the EU legal system. For forty years, Article 11 TFEU has mandated the integration of environmental protection requirements into all EU policies. Yet it remains largely dormant in the case law even as the EU Green Deal evidenced progress in policymaking. Although the provision is often dismissed as unenforceable by the scholarship, this article argues that Article 11 TFEU provides for a constitutional obligation akin to a general principle of EU law with significant untapped potential. Through textual, systemic and teleological analysis, we establish Article 11's binding nature and constitutional significance. The article retraces the evolution of the CJEU's case law and demonstrates how, despite inconsistencies, Article 11 TFEU already performs all functions generally fulfilled by general principles of EU law, thanks notably to recent grand chamber judgments of the Court of Justice. Accordingly, we propose an interpretation of this principle that both respects judicial precedents and realizes its true legal potential, offering a robust constitutional foundation for advancing environmental protection within the Union's legal framework at a time when such protections are increasingly vital.

Common law · Constitutional law · Constitutional theory · Judicial interpretation · Judicial review · Obligation · Environmental law and policy · Environmental Policies and Emissions · International Environmental Law and Policies