Federalization versus centralization: tensions in fundamental rights discourse in the European Union

The debate about fundamental rights in the European Union does not concern so much the identification of the values which should be considered at the very heart of our conception of humanity. After all, those values were identified in 1950 in the European Convention of Human Rights. Rather, the debate revolves around the identification of the locus, supranational or domestic, where it is appropriate to carry out the balancing exercise between these conflicting values; and also, on the identification of the institution, judicial or political, which should carry out such balancing exercise. This balancing exercise normally reflects deeply held societal preferences as to the respective strengths of the values enshrined in fundamental rights documents. In this respect, the Member States’ acceptance to defer the balancing exercise, as a last resort, to the European Court of Human Rights was based on the assumption that the European Convention of Human Rights would represent a floor of rights; such a minimalist conception allowed the balance to oscillate considerably between different assessments of the respective force of conflicting values. In this way, the Convention, as interpreted by the European Court of Human Rights, served the double purpose of respecting the plurality of societal choices that characterises different polities, while at the same time enforcing a minimum level of protection which itself reacts to changes in social perception. As complex as the creation of an international human rights discourse might be, then, it is considerably simpler than its supranational counterpart. In the international sphere, there is no ambition to harmonise the fundamental rights discourse beyond what is required by the minimum floor of protection. In the supranational sphere, on the other hand, and as we shall see in more detail below, the emergence of a fundamental rights discourse might require the imposition of a sole standard (sometimes lower and sometimes higher than the national counterpart) in the protection of fundamental rights. In this sense, the fundamental rights discourse in the European Union reflects the evolution of, and the tensions inherent in, the Union’s constitutional process. In particular, the debate about fundamental rights protection mirrors the tension between federalisation and centralisation, and the deep worries which we have seen expressed in relation to the recent constitutional process. At both political and judicial level, there are in fact two conflicting forces, centripetal and centrifugal, in relation to fundamental rights protection. The centripetal force attracts the fundamental rights discourse within the European Union project, first as an ancillary goal and then—more and more—as an aim in itself. The centrifugal force, by contrast, seeks to pull away fundamental rights from the EU gravitational orbit. The centripetal force reflects the development of the European Union in a more mature and comprehensive constitutional system, a system that has long stepped outside the confines of the internal market. The centrifugal force, on the other hand, reflects the desire to maintain a diversified and multifaceted constitutional system, where national sovereignty is seen as the source of the Union’s own constitutional legitimacy. This contribution seeks to explore these dynamics; in particular, it will be argued that if the fundamental rights discourse aims to serve a legitimising function, it must reflect these tensions and acknowledge that centralisation of fundamental rights is not always the answer. We will start by a short historical introduction of the development of fundamental rights discourse in the European Union, and then focus on the two forces at play, the centralising and the federalising force, in the case law of the European Court of Justice.