Article 11 TFEU and Environmental Rights

Forthcoming, Draft Chapter Sanja Bogojević and Rosemary Rayfuse, Environmental Rights in Europe and Beyond (Hart Publishing, 2018)

EULawWP 1/2018

17 Pages Posted: 9 Aug 2018

See all articles by Julian Nowag

Julian Nowag

Lund University - Faculty of Law; Oxford Centre for Competition Law and Policy

Date Written: January 15, 2018

Abstract

This paper explores whether Article 11 TFEU, requiring that ‘[e]nvironmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development’ provides an environmental right within the EU’s constitutional setting. After setting out relevant features of rights and environmental rights in particular, the chapter applies these to Article 11 TFEU. The paper shows that the steady strengthening of Article 11 TFEU in its constitutional setting and the possibility of annulment of measures that do not comply with the Article 11 TFEU supports the view that it establishes an environmental right. Yet, the paper highlights two serious caveats that raise doubts with regard to such a classification: the issue of standing and the weak standard of review in Article 11 TFEU cases. The paper argues that Article 11 TFEU, while close to conferring a right, falls short of conferring a self-standing right. Article 11 TFEU is dependent on the enabling function of other existing rights. Nonetheless, the paper shows that the Article can have an important function in providing the basis for derived environmental rights for individuals and environmental NGOs, and can act as a justification for government action to protect the environment within the context of EU law.

Keywords: environmental rights, environmental integration, environmental protection, rights, obligations, EU

Suggested Citation

Nowag, Julian, Article 11 TFEU and Environmental Rights (January 15, 2018). EULawWP 1/2018 . Available at SSRN: https://ssrn.com/abstract=3217194 or http://dx.doi.org/10.2139/ssrn.3217194

Julian Nowag (Contact Author)

Lund University - Faculty of Law ( email )

Lilla Gråbrödersgatan 4
Lund, 222 22
Sweden

Oxford Centre for Competition Law and Policy ( email )

St Cross Building
St Cross Road Oxford
Oxford, OX1 3UL
United Kingdom

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