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Floor Fleurke

The new climate provisions in the Treaty on the Functioning of the European Union (TFEU) demonstrate the EU’s global leadership ambitions in climate policy, both within and beyond EU borders. Many commentators have suggested that the Court’s contribution to the development of the EU’s environmental policy has been so profound that it deserves the label of a ‘green’ Court. The question addressed here essentially is if the Court’s contribution to the EU’s climate policy has been equally constitutive. Can the Court’s approach of individual market empowerment empower individuals to uphold collective climate rights? The judicial vehicle of individual market empowerment, even if it is applied extensively to encompass more generic environmental obligations of result, cannot fully engage with all the substantive climate ambitions pursued by the EU. It is, therefore, examined whether the rise of human rights in the constitutional architecture of the EU offers fresh opportunities for the Court to empower EU citizens to uphold such collective climate rights, i.e. irrespective of their participation in (carbon and energy) markets. For that situation to arise, individuals would have to be in a position to rely on the environmental duties embodied in human rights instruments, at least in matters that fall within the scope of EU law. In this vein, The Dutch Urgenda case decided by The Hague District Court against the State could be exemplary.