Resumen de Federalisms, rights, and autonomies: The United States, Germany, and the EU
The aim of this article is to demonstrate that federal structure and rights, though commonly kept apart, should be studied in their interaction. This can be illustrated by a comparison of the American and German constitutional traditions. In both traditions, federalism and rights interact in a characteristic way. These examples suggest that federalism should be viewed neither exclusively as a holistic principle nor as an individualistic principle. Rather, the relationship between federal structure and rights reflects the interdependence of individual and democratic autonomies. In the European Union, awareness of the interaction between (quasi-)federal structure and rights can guide the Court of Justice of the European Union as a fundamental rights court. When applying EU fundamental rights to the Member States, the Court should exercise restraint. More precisely, a procedural approach to the margin of appreciation or the federalism discount granted by the Court is appropriate from a structural point of view. It not only is an adequate answer to current challenges of fundamental rights protection in the EU but also reflects the EU’s dual structure of democratic legitimation.
