Dr. Edoardo Celeste (Dublin City University)

Over the past decade, the EU has significantly invested in constitutionalising key digital rights. Scholars from various disciplines have identified the emergence of a movement of digital constitutionalism in the EU driven by a plurality of actors, from civil society to courts. This process consists in a progressive translation and articulation of core fundamental values of the EU to face the challenges of the digital revolution. This blog post aims to problematise the vision that sees this phenomenon of constitutionalisation as steadily on the rise and to reflect on recent developments that might be slowing down its evolution.

‘Actification’ as an expression of digital constitutionalism

In 2022, Papakonstantinou and De Hert defined as ‘actification’ the adoption of ‘eponymous’ pieces of legislation in the digital field by the EU. Regulation (EU) 2022/2065 is more simply called Digital Services Act, Regulation (EU) 2022/1925 is known as the Digital Markets Act: we no longer identify these pieces of EU law with their official name – ‘regulation’ in these examples –, their year and number, but we simply refer to shorter ‘nicknames’ that easily identify their subject matter.

Papakonstantinou and De Hert rightly observe that ‘act’ is not an official category of EU law; yet, in this way, the EU Commission intended to raise awareness on a coherent series of regulatory instruments of particular importance. These acts are not only crucial tools to reach the ambitions of the EU digitalisation strategy, but also from a constitutional point of view. They represent the pillars of EU efforts towards constitutionalising digital rights, what Floridi called the ‘hexagram of digital constitutionalism’ referring to the GDPR, the DSA, the DMA, the Data Governance Act, the EHDS Regulation and the AI Act.

However, how is it possible to speak of a constitutional role of an EU regulation, a legal instrument that is not formally part of EU constitutional-primary law? There are various theoretical approaches to digital constitutionalism; a holistic, socio-legal standpoint allows us to overtake the traditional delimitation of constitutional sources in EU law and more functionally look at what instruments concretely play a constitutional function. In this way, EU digital acts might be interpreted as a means to articulate core EU constitutional values in a manner that can effectively address the challenges of the digital revolution. In a nutshell, the EU actification phenomenon in the field of digital law would be an expression of digital constitutionalism.

Normative retrofitting through soft law

If we adopt this socio-legal, functional approach to digital constitutionalism, we could argue that the process of constitutionalisation of digital rights is not surfacing merely in legally binding sources, but can also be identified in soft law instruments. We witness the emergence of a multilevel normative discourse where non-legally binding instruments might influence regulatory instruments and vice versa.

In the EU digital field, an example of this phenomenon is represented by the European Declaration of Digital Rights and Principles. Solemnly adopted in 2022, the Declaration has no legally binding value, but plays an important political – we could even say ‘pedagogical’ – role at EU level. It aims both to guide EU and member states’ policymakers in the digital field as well as to showcase the EU way to the digital transformation to non-EU countries.

The Declaration is an expression of EU digital constitutionalism as it articulates core EU values and principles in the digital context. Sometimes, in an innovative way, as in the case of principles related to digital sustainability (Ch. VI). The EU Commission makes explicit principles that are implicit in EU digital acts through a process that Perez, Quintavalla and I called ‘normative retrofitting’. Metaphorically speaking, the Declaration would be a mechanism to finally put the ‘horses’ (EU guiding principles) back in front of the ‘cart’ (EU policy and regulatory instruments).

A holistic and functional approach to EU constitutional law thus allows us to appraise the role that soft law might play to constitutionalise EU digital rights by filling the gap between EU core values and digital acts.

Draghi’s Report and the regulation vs innovation dilemma

Unfortunately, the process of constitutionalisation of EU digital rights is neither linear nor steady. At the moment, we can identify two phenomena – an internal and an external one – that might exercise a decelerating force.

In 2024, former ECB President Mario Draghi published a report on the future of EU competitiveness. The report criticised the EU for introducing regulatory complexities in the digital field that would amplify the innovation gap with other major international players. It then included a call for simplification in the digital sector in order to remove normative barriers to innovation.

Draghi’s Report is often mentioned as a source of criticism to what we have previously called the EU actification process in the digital field. The recommendation of simplifying EU digital law is interpreted as an exhortation to deregulate the digital sector. This vision posits the existence of a regulatory dilemma that positions regulation as the antithesis of innovation. EU digital acts are not regarded as guardrails but as barriers on the pathway to innovation. The process of actification becomes a status of ‘hectic-fication’.

This reading thus represents an internal decelerating factor to the constitutionalisation of EU digital rights. It emerges as a consequence of an act of self-assessment of EU digital law and policy, supported by Mario Draghi’s reputation, but certainly also fuelled by external elements.

Trump II and the weaponisation of EU digital law 

The inauguration of the second Trump presidency in January 2025 marked the outset of geopolitical reshuffling and questioning of traditional international alliances. This new scenario has been accompanied by an aggressive and obstructionist attitude of the Trump administration vis-à-vis the EU.

In this context, we can observe a phenomenon of ‘weaponisation’ of EU digital law. Some key EU digital acts, especially those that impose significant regulatory burdens to US companies, such as the DSA, have been targeted by the Trump administration and are now being used as an element of negotiation in broader political discussions related to trade deals and military alliances.

Thinking of EU digital law as a commodity to trade not only ignores the democratic legitimacy of these legal instruments, which have been voted by EU parliamentarians and approved by EU member states’ government representatives. It also neglects the non-negotiable nature of EU fundamental rights. If the how to protect these rights can be a matter for (internal) discussion, the if these values should be safeguarded is beyond question, and certainly cannot be subject to international trade bargaining. Yet, the uncomfortable position that the EU has to face in the current geopolitical context, combined with internal criticism regarding regulatory interventions in the digital field, exposes the risk of further curbing EU activism in the digital field, thus decelerating the process of constitutionalisation of EU digital rights.

Rerouting simplification: towards a sovereign and rights-based digital space 

The existence of these two decelerating factors interrogates us on whether there are ways to contrast this ‘braking’ of digital constitutionalism in the EU. I briefly propose two reflections.

Instead of interpreting it as an appeal to deregulation, Draghi’s call for simplification can be read as an encouragement to eliminate inconsistencies, overlap and uncertainties in EU digital law. Fundamental rights-based compliance is possible, but it is important to understand the rationale of EU digital acts in order to simplify them. Simplification indeed implies taking an aerial view of EU digital law and identifying its key objectives. Especially, because the latter was gradually developed for now more than a decade and is not the product of a unitary and coherent project.

To address pressures from external players, it is key to explore effective ways to foster EU’s digital sovereignty. Not as a mechanism to foster protectionism or blindly pursue a dream of absolute autarchy that de facto cannot be achieved. But as a way to preserve EU digital rights in a strategic and open way. This implies recentring EU digital sovereignty objectives towards the protection of fundamental rights. The latter no longer representing a burden stifling innovation, but as an element of pride of EU’s digital industry, internal market and process towards the twin transition.

 

Dr Edoardo Celeste is an Associate Professor of Law, Technology and Innovation at Dublin City University. He is the Deputy Director of the Dublin European Law Institute, the coordinator of the DCU Law and Tech Research Cluster and the Chair of the Erasmus Mundus Master in Law, Data and AI (EMILDAI). 

This blog post re-elaborates Edoardo Celeste’s Opening Note ‘Constitutionalising EU Digital Rights: Propelling Factors and Decelerating Phenomena’ presented at the Conference ‘Artificial Intelligence and Sensitive Data: Challenges, Regulatory Solutions and the Protection of Fundamental Rights’ (Università di Parma, 20th October 2025)