The ESG agenda in the European Union: constitutionalising sustainable development through corporate responsibility and constitutional dialogue

Abstract

This article examines the European Union’s Environmental, Social and Governance (ESG) agenda as a regulatory pathway for the legal concretisation of sustainable development, rather than merely as a framework for financial risk assessment, investment analysis and corporate disclosure. Starting from the constitutional recognition of sustainable development in EU primary law, the article examines how ESG-related legislation has contributed to the juridical densification of sustainability obligations applicable to undertakings, markets and, more broadly, organisations, translating requirements previously situated predominantly within the domains of ethics, self-regulation and soft law into binding legal duties. It further considers the reconfiguration of corporate responsibility within the context of an emerging socio-ecological market economy, as well as the constitutional tensions arising from the implementation, revision and possible retrenchment of sustainability obligations within the framework of European multilevel constitutionalism. The article contends that, as an open, integrated and multidimensional metaprinciple, sustainable development cannot be concretised exclusively through hierarchical logics of primacy, harmonisation and regulatory uniformity. On the contrary, it requires mechanisms of constitutional dialogue capable of mediating between integration and pluralism, effectiveness and subsidiarity, protection and proportionality, unity and differentiation, as well as between the pursuit of higher levels of protection and respect for the constitutional identities of the Member States. It concludes that ESG emerges as a legal and constitutional mechanism through which sustainable development is concretised and operationalised within the EU legal order, contributing to its consolidation as an integral element of the Union’s constitutional identity.