Human Rights in the Web of Governance: Towards a learning-based fundamental rights policy for the European Union

The essays collected in this volume aim to provide the building-blocks of a learning-based understanding of the development of fundamental rights in the European Union. Instead of asking how much harmonization of fundamental rights is required at EU level or whether fundamental rights should rather be protected at domestic level, it acknowledges that even when it is desirable, harmonization may be in many cases politically unrealistic to achieve; that it may presume too much about our ability to identify how best to implement fundamental rights; and that the required legal bases may be missing. It also notes that we have currently no mechanism allowing us to identify, on a more or less systematic basis, the need for the Union to take action in this field. A learning-based understanding of the development of fundamental rights takes seriously these limitations which the fundamental rights policy of the EU is currently facing. This redefinition moves from substance to procedure: since there is uncertainty about how to improve the protection of fundamental rights (beyond the minimum requirement not to violate them), a fundamental rights policy should be about devising adequate mechanisms for the constant testing of the policies pursued in different settings, in order to arrive at a better understanding of how to best achieve their objectives. Reflexive governance, these essays argue, may represent one way of thinking about how to address this challenge. This hypothesis is tested in three policy areas: equality of treatment, data protection, and the establishment of an area of freedom, security and justice. The essays collected in this volume do not form a blueprint for the further improvement of the regime of fundamental rights protection in the EU. Rather, they identify a blindspot: the lack of a principled way of reconciling the protection of fundamental rights within each EU Member State, with the establishment between these States of an internal market and of an area of freedom, security and justice. And they explore the potential of non-judicial means of ensuring the protection and promotion of fundamental rights, particularly through techniques – mutual evaluation mechanisms, the use of indicators and benchmarks, and participatory processes – inspired by existing ‘open’ forms of coordination between the Member States. These techniques allow us to shift from the post hoc, reactive modes of protection of fundamental rights, to more ex ante, proactive methods of protection. Fundamental rights are a concern of the EU institutions since well over thirty years, and a number of tools, both legislative and judicial, have been deployed in order to ensure that the progress of European integration shall not lead to lower the level of protection of rights in the EU. It is time that fundamental rights become more than that, however – it is time that they become a policy. But such a fundamental rights policy for the EU must be respectful of the diversity of approaches within the EU, and it must acknowledge that, in many domains, we simply do not know how best to ensure the fulfilment of fundamental rights. It must therefore be conceived as a policy which encourages collective learning, and permanent re-evaluation of earlier choices in the light of new circumstances. It is in this direction that this volume seeks to move the debate.