Greening EU Intellectual Property Law through the Human Right to a Healthy Environment: An Operative Methodology for Constitutional Interpretation

Can the human right to a clean, healthy and sustainable environment (HR2HE) reshape the interpretation of EU intellectual property (IP) law? This chapter argues that the question is no longer whether environmental protection should influence IP law, but how it should do so. Drawing on international environmental law, United Nations practice, regional human rights jurisprudence and EU constitutional law, it reconstructs an operative methodology for translating the constitutional relevance of environmental protection into concrete legal reasoning. The resulting three-stage framework distinguishes three questions: why environmental protection is constitutionally relevant to the interpretation of IP law; whether and to what extent the activity at issue genuinely advances constitutionally protected environmental objectives; and how those objectives should be reconciled with the legitimate purposes of the IP regime concerned through the interpretation of its existing doctrines. The chapter illustrates the methodology through the recent Hermès upcycling litigation before the Paris Judicial Court. It argues that the HR2HE need not operate primarily through new environmental exceptions or defences, but can function as an internal constitutional consideration informing the interpretation of open-textured IP doctrines wherever they leave room for judicial choice.