In the latter decision, the BVerfG surprises with a direct review of the correct application of Union law. The court thus extends its scope of review to the European Charter of Fundamental Rights (CFR) in cases of fully harmonized Union law.
The BVerfG's scope of review
The scope of the BVerfG's review of a constitutional appeal is assessed on the basis of the respective relationship between the fundamental rights of the Basic Law and Union law. This in turn depends on whether the relevant Union law grants the Member States a scope for implementation.
If this is the case, the fundamental rights of the Basic Law are applicable within this leeway and, in principle, apply alongside those of the CFR. In the event of such an overlap, the Federal Constitutional Court primarily examines the Basic Law, interpreting the fundamental rights in the light of the Charter.
If, however, there is conclusive and fully unifying, i.e. mandatory, Union law, the fundamental rights of the Member States generally take a back seat to Union law in the context of primacy of application. This is the only way to ensure uniform implementation of Union law in all Member States.
As the BVerfG only examines the violation of constitutional law, the court in that case (so far) only reached the examination of Union law via a detour: It only examined whether the fundamental right to a statutory judge(Art. 101 para. 1 sentence 2 GG) was violated by the fact that a specialist court did not comply with the obligation to make a referral to the ECJ despite existing questions of interpretation with regard to Union law.
According to the Recht-auf-Vergessen-II decision, however, this recourse to a violation of the obligation to refer is no longer necessary in order to apply the CFR.
The facts of the case
The Right to be Forgotten II decision is based on a constitutional complaint against a judgment of the Higher Regional Court of Celle dated December 29, 2016. The plaintiff was pursuing a claim for injunctive relief against the search engine operator Google.
The plaintiff, managing director of a company, had previously given an interview to Norddeutscher Rundfunk (NDR) regarding the dismissal of one of her employees. NDR broadcast the interview at the beginning of 2010 as part of a report entitled "Kündigung: The nasty tricks of employers". After the broadcast, NDR posted a transcript of the report in its own online archive.
By entering the plaintiff's full name in the search mask of the defendant search engine operator, the contribution could be found.
The plaintiff unsuccessfully appealed to the Higher Regional Court of Celle on the basis of rights of expression and data protection. With her constitutional appeal, the complainant alleged a violation of her general right of personality and her fundamental right to informational self-determination(Art. 2 para. 1 in conjunction with Art. 1 para. 1 GG).
What did the BVerfG decide?
The constitutional appeals were also unsuccessful. However, the BVerfG initially - unexpectedly - affirmed the complainant's right to appeal, although the German fundamental rights were not applicable. Although the legal dispute before the Higher Regional Court was based on German legislation, this legislation implements the provisions of the Data Protection Directive 95/46/EC. This directive does not give the member states any leeway, in particular the scope of application of the media privilege (Art. 9 of the Data Protection Directive 95/46/EC) is not opened up. It is therefore a completely standardized regulation. The fact that the complainant invokes the violation of German fundamental rights is not detrimental to the admissibility of the complaint.Despite the inapplicability of the GG, the BVerfG does not withdraw from the fundamental rights review. Instead, it states that it is one of its tasks to guarantee the protection of fundamental rights also on the basis of the Union's fundamental rights.
On the one hand, the BVerfG's competence to review fundamental rights of the Union already follows from Art. 23 para. 1 sentence 1 GG. Through its extended jurisdiction, the court fulfills the responsibility for integration resulting from the provision, as Art. 23 para. 1 GG provides for the Federal Republic's participation in Union law. In this way, a closely intertwined cooperation between the decision-makers is created, as is the case with the content of the Union treaties. Due to the fundamental applicability of Union fundamental rights in the Member States pursuant to Art. 51 para. 1 CFR, these are to be regarded as functional equivalents. If a review by the BVerfG were not possible, the protection of fundamental rights would be incomplete. This would be unacceptable, especially with the increasing consolidation of Union law.
Furthermore, without the inclusion of Union fundamental rights in the scope of review, there would be a gap in protection, as there would be no possibility for individuals to assert the violation of Union rights by the specialized courts of the Member States directly before the ECJ.
Finally, the wording of Art. 93 para. 1 no. 4a GG does not speak against its inclusion. The provision must be interpreted in favor of Union law due to the responsibility for integration.
The BVerfG then weighs up the fundamental rights to respect for private and family life(Art. 7 CFR) and to the protection of personal data(Art. 8 CFR) on the one hand and the right to freedom to conduct a business(Art. 16 CFR) on the other. As part of this balancing exercise, the freedom of expression(Art. 11 CFR) of the content providers and the information interests of internet users are also taken into account. The court's decision is ultimately in the complainant's favor.
What are the consequences of the ruling?
In summary, it can be said that this decision - despite the immense need for legal certainty with regard to a "right to be forgotten" - is forward-looking not so much because of the substantive examination of fundamental rights, but rather because of the new positioning of the Federal Constitutional Court. For the individual, this means a new legal protection option: in future, the violation of Union fundamental rights can be challenged in Karlsruhe (at least as part of a constitutional complaint against a judgment).
Ariane Albrecht and Dr. Fiete Kalscheuer