Lucia Serena Rossi, Judge at the Court of Justice of the European Union*

* Personal opinions expressed in this article are not representative of the Court’s views.

** Originally published in Italian as ‘Il “nuovo corso” del Bundesverfassungsgeright nei ricorsi diretti di constituzionalità: bilanciamento fra diritti confliggenti e applicazione del diritto dell’Unione’ on Federalismi.it, February 5, 2020, ISSN 1826-3534.

Table of contents:

1. Balancing Competing Fundamental Rights in the EU’s Multilevel System.

2. Balancing Rights When EU Law Provides Discretion.

3. Balancing Rights Under Comprehensive EU Law.

4. Navigating the Complexities of EU and National Law.

1. Balancing Competing Fundamental Rights in the EU’s Multilevel System

On November 6, 2019, the German Constitutional Court’s First Senate (BVerfG) issued two significant orders on constitutional complaints involving the right to be forgotten. Examining these rulings together reveals a new approach to how fundamental rights protection under national constitutions interacts with the European Union legal order. They also provide updated guidance on the roles of relevant judiciaries, especially the BVerfG, in overseeing the application of the EU Charter of Fundamental Rights (Charter).

Unlike the Taricco case before the Court of Justice of the European Union (CJEU) or the Italian Constitutional Court’s judgment 269/17, these cases involve conflicts between individuals’ rights. Specifically, they require balancing the interests of online information indexers/providers against individuals seeking to de-index information from search engines under the right to be forgotten. However, the balancing act is complex: courts must consider not only the two primary parties but also the freedom of expression of content creators and the public’s right to access information. This requires a ‘pluri-focal’ balancing act, where courts weigh numerous rights and interests that hold equal hierarchical weight within the legal order.

This judicial balancing act becomes even more challenging in a multi-level system like the EU, where national and EU law intersect. Here, the difficulty lies not in resolving conflicts between national and EU law, as addressed in the Melloni case, but in determining which of the various individual rights granted by EU and national systems (and the European Convention on Human Rights) should prevail.

Different interpretations of these rights by judges across legal systems can lead to ‘conflicts of balancing’, where the same right may be applied differently under national versus EU law. This intricate interplay requires coordination between protection systems.

The two German Constitutional Court orders attempt to establish a clear hierarchy, both in terms of judicial authority and applicable standards, at least within the context of constitutional complaints. This article analyzes these orders through the lens of EU law.

2. Balancing Rights When EU Law Provides Discretion

The first order involved an individual convicted of a crime in 1981. Due to Google’s indexing of an online archive from the newspaper Der Spiegel, the applicant’s name was prominently linked to the crime. The applicant, invoking the right to be forgotten, requested de-indexing and appealed to the BVerfG following an unfavorable judgment by the German Supreme Court.

The First Senate highlighted that the so-called ‘media privilege’ is not fully addressed by EU law, particularly under Article 9 of Directive 95/46 (the Data Protection Directive) and Article 85(2) of the General Data Protection Regulation (GDPR). Both regulations defer to member states to define exemptions or limitations needed to balance privacy rights with freedom of expression, including for journalistic, artistic, or literary purposes. Despite mandating this balancing act to member states, the CJEU has held that the specific method of reconciling these rights falls under national competence.

The BVerfG emphasized the ‘structural principle’ of the EU that allows for varying fundamental rights protections among member states, particularly in areas where EU law provides discretion. The Court also invoked Article 53 of the Charter, which permits national constitutions to offer greater human rights protection than the Charter within their scope. This aligns with CJEU case law by allowing fundamental rights conflicts to be resolved based on respective national systems.

This understanding of EU-member state competence division, according to the First Senate, is supported by the principles of subsidiarity (Article 51(1) of the Charter) and the preambles of both the Treaty on European Union and the Charter, which recognize the diversity of member states’ cultures and traditions. The Court argued that EU legislation, by offering varying levels of regulation, defines a ‘federal balance’ for applying member states’ fundamental rights, based on politically accountable decisions that respect the principle of subsidiarity.

Therefore, in areas where EU law is not comprehensive, fundamental rights are primarily governed by national constitutions, even when domestic law implements EU law. This suggests that EU law intends to leave a margin of discretion to member states and that national protections are presumed to meet EU standards as interpreted by the CJEU. Both legal orders are grounded in the minimum standards set by the ECHR. Further evaluation of protection adequacy under EU law is only necessary if there are clear indications that the national standard falls short.

The First Senate acknowledged that differing interpretations may arise despite national constitutions and the Charter being read in light of each other and the ECHR. Determining the prevailing standard requires a case-by-case analysis that considers the specific context. While the national constitution generally serves as the primary standard in the absence of comprehensive EU regulation, exceptions arise when EU law, while leaving some discretion, requires higher protection standards.

However, the First Senate seems to limit the scope of the Charter, particularly its relationship with secondary EU legislation. It recognizes the Charter’s role in reconciling member states’ diverse approaches to fundamental rights, considering their unique historical and social contexts. Yet, the judgment suggests that the Charter doesn’t intend to—and cannot—completely standardize national protection systems or the balancing of conflicting rights. Therefore, any indication that EU legislation, while granting discretion, demands higher protection standards must be explicitly stated within the rules themselves. The general obligation for EU acts to comply with the Charter is not sufficient to establish stricter standards than those at the national level.

This raises the question of whether this approach inverts the ‘Solange theorem’, which assumes that national law meets the minimum standard (and thus respects EU law primacy) as long as its level of protection aligns with EU law standards. The German Court recognizes the presumption of the national standard’s suitability as juris tantum, meaning it can be rebutted if the CJEU deems it insufficient. However, the BVerfG emphasizes that it will refer to the CJEU only when doubts arise regarding the standard required by EU law. If no such doubts exist, it will directly incorporate the EU standard into the national framework and apply it.

Furthermore, the First Senate clarifies that it doesn’t intend to challenge the direct effects of the Charter when applicable under Article 51. Ordinary German courts retain the right to apply the Charter directly or seek clarification from the CJEU, though they must apply the national constitution when EU law allows for national discretion. This seems to uphold the Max-Planck jurisprudence, which allows for the horizontal direct effects of certain Charter provisions (but not directives).

The BVerfG’s theory suggests that the flexibility afforded to national standards is inversely proportional to the degree of harmonization within specific EU regulations or directives. However, the Court acknowledges the dynamic nature of the EU’s harmonization process and the expanding scope of the Charter.

Considering these factors, the BVerfG concludes that in the case at hand, only the national constitutional standard applies because Directive 95/46 and the GDPR grant member states discretion concerning the media privilege.

The First Senate then proceeds to balance the competing rights. It emphasizes that the right to be forgotten, while a personal right, doesn’t grant an absolute right to control information about oneself online. Such an interpretation would clash with the rights of others, requiring an assessment of ‘horizontal’ indirect effects. In this case, while freedom of expression and of the press hold less weight (involving online content dissemination), the public’s interest in accessing information remains relevant.

The Court distinguishes the right to informational self-determination from general personal rights. While individuals should influence how their data is accessed and used, they lack an unrestricted right to filter publicly available information based solely on personal preference.

However, the Court recognizes that online indexing can create a profile of an individual, potentially impacting their social interactions. Everyone has the right to evolve without being perpetually linked to past mistakes. The BVerfG cites relevant CJEU judgments (Google Spain and Google, and Manni) and emphasizes the importance of considering factors like the time elapsed since the events, the legality of the information’s disclosure, and whether the information was legally disclosed.

To reconcile these competing interests, the First Senate stresses the need to balance public access to information with protecting individuals from harm. It finds that the challenged judgment failed to adequately weigh these factors and upholds the constitutional complaint.

3. Balancing Rights Under Comprehensive EU Law

The second order involved a Court of Appeal’s refusal to order Google to de-index a televised interview transcript. The interviewee, accused of unfair labor practices, sought de-indexing of the online broadcast. Unlike the previous case, this matter falls squarely within Directive 95/46 and the GDPR, which have completely standardized the right to be forgotten. Therefore, member states have no discretion in this regard.

The First Senate argues that in areas fully governed by EU law, the EU system of rights protection takes precedence over the national constitution.

The Court clarifies this in two ways. First, the primacy of EU law stems from the transfer of sovereign powers from member states to the EU. Therefore, when EU law exists, including the Charter and the ECHR as a minimum standard, the protection of fundamental rights must follow those standards. Second, the recognition of EU law primacy depends on its effectiveness in safeguarding fundamental rights, though the BVerfG’s jurisprudence presumes EU standards to be equivalent to those of the German Basic Law.

When EU law supersedes national constitutional rights, the BVerfG’s role shifts to ensuring national authorities respect EU fundamental rights when enforcing EU law. This order marks a departure from previous BVerfG jurisprudence, where the Court refrained from directly applying EU standards, instead relying on ordinary German courts and the preliminary ruling procedure in collaboration with the CJEU.

This ‘new course’ for fundamental rights protection in Germany is significant. The BVerfG will now exercise its full authority to scrutinize the compliance of national authorities and courts with EU fundamental rights within fully harmonized areas of law. This will be done in collaboration with the CJEU under Article 267(3) TFEU. The reasoning behind this shift is that Article 23(1) of the German Constitution should be interpreted as a positive obligation, requiring all German state bodies, including the BVerfG, to actively contribute to the EU integration process. Consequently, EU fundamental rights become part of the BVerfG’s toolkit when reviewing constitutional complaints.

Importantly, this ‘new course’ appears limited to direct constitutional review actions. The BVerfG aims to address the lack of direct individual actions before EU courts concerning the application of EU fundamental rights, a gap it argues is not adequately filled by the preliminary ruling procedure.

The BVerfG acknowledges that the CJEU has the final say in interpreting EU law, including the Charter, under Articles 19 and 267 TFEU. However, the BVerfG will utilize the preliminary ruling procedure when the CJEU has not addressed a specific issue or if the applicable interpretation is unclear.

The First Senate recognizes that while the protection offered by the German Basic Law and the Charter often align, caution is needed when interpreting them to avoid jeopardizing the unity of EU law. In these cases, the BVerfG’s interpretation should be directly based on the Charter and CJEU jurisprudence.

In this specific case, the First Senate finds a preliminary reference to the CJEU unnecessary, stating that the matter can be resolved based on existing CJEU and ECtHR jurisprudence. The Court considers itself capable of deciding the case without referring to the full Constitutional Court, as it doesn’t overturn established jurisprudence.

The First Senate clarifies that its role here is not to review the directive’s correct application but to assess whether the appealed judgment appropriately balanced the rights involved. Using the Charter as a benchmark, the BVerfG directly examines the national authorities’ application of EU law. It finds the action admissible but unfounded.

The Court reframes the constitutional complaint: despite the applicant solely invoking the German Constitution, it recognizes the complaint as targeting the violation of Articles 7 and 8 of the Charter. The BVerfG finds no manifest error in the contested judgment, as it adequately assessed all interests. The Court distinguishes this case from Google Spain, emphasizing that privacy rights don’t automatically supersede other rights like freedom of expression. It cites various CJEU judgments and considers Google’s arguments, which highlight the journalistic context, the focus on professional life, and the public interest in the information.

While Google’s freedoms to conduct business (Article 16) and of expression (Article 11) are not inherently superior to the applicant’s privacy, the Court emphasizes the need to balance them against the public’s right to information and the broadcaster’s freedom of expression. De-indexing would restrict the dissemination of an online publication.

The balancing act, according to the BVerfG, shouldn’t grant individuals control over online information about themselves but should assess potential harm to their self-determination. This involves considering factors like the time elapsed since the events, the truthfulness of the information, its relevance to professional life, and the voluntariness of the interview. The BVerfG finds that the contested judgment adequately upheld the Charter.

4. Navigating the Complexities of EU and National Law

These orders raise questions about the compatibility of this ‘new course’ for fundamental rights protection with EU law.

First, the BVerfG’s decision to rule directly without referring the case back to lower courts raises concerns about potential conflicts with EU law and the principle of loyal cooperation (Article 4(3) TEU). This is especially relevant in the first order, where the BVerfG, acting as the court of last instance, could and arguably should have referred the question to the CJEU under Article 267(3) TFEU. However, if this new approach is limited to direct constitutional complaints (as the orders suggest), these concerns are less significant. The national court could have referred the question to the CJEU before issuing its judgment.

Crucially, the BVerfG affirms the right of national courts to make preliminary references to the CJEU. This means national courts can still seek clarification from the CJEU, even without a direct constitutional complaint.

Therefore, this approach doesn’t restrict the power of national courts to engage with the CJEU. Unlike the Italian Constitutional Court’s judgment 269/2017 (which seemed to limit such references), the BVerfG’s orders maintain the established system, a position later clarified by the Italian Constitutional Court itself.

However, if the BVerfG’s approach expands beyond constitutional complaints to the detriment of Article 267(3) TFEU references, it would raise concerns about undermining the CJEU’s authority, contradicting established case law since the Simmenthal case. While both Constitutional Courts appear to seek a more active role in applying fundamental rights, they don’t seem to intend to dismantle the preliminary reference system.

Another crucial consideration is the distinction between interpreting and applying EU law. The Treaties grant the CJEU a monopoly on interpreting EU law to ensure its uniform application. This doesn’t preclude national courts from applying EU standards and principles established by the CJEU to specific cases. Thus, one could argue that the BVerfG’s second order, while appearing to deviate from the Google Spain judgment, is merely applying EU law. The question then becomes: what criteria determine whether a national court’s application of EU law aligns with the CJEU’s interpretation? This falls under the CJEU’s purview due to its interpretative monopoly. National judgments are even obligated to disapply conflicting national laws if EU law has direct effects. Moreover, the CJEU increasingly encourages national courts to find case-specific solutions by applying EU law in light of individual case circumstances.

In analyzing the roles of different courts within this multilevel system, it’s important to note that the BVerfG’s concept of full harmonization doesn’t always align with the CJEU’s understanding of direct effects. The CJEU emphasizes direct effects as the prerequisite for national courts to disapply conflicting national law when no interpretation consistent with EU law is possible.

Within this ‘judicial ménage-à-trois’, the BVerfG assumes the role of ensuring, through direct constitutional review, that German courts correctly balance fundamental rights under EU law. National courts should apply national constitutional standards when EU law is incomplete and rely on the Charter when EU law offers a comprehensive framework. This direct review mechanism serves as an additional guarantee for individuals alongside—and not in place of—the powers of ordinary courts and the Article 267 TFEU procedure.

While this approach is generally acceptable under EU law, some aspects require further scrutiny.

First, the concept of “full coverage,” central to the BVerfG’s reasoning, needs clarification. When doubt arises regarding the extent of EU law’s coverage, it is the CJEU, not a national Constitutional Court, that holds the authority to determine the degree of harmonization and the remaining discretion afforded to member states.

The CJEU’s own case law recognizes that the level of harmonization dictates member states’ ability to apply national standards. When EU law harmonizes a particular area, member states cannot invoke their own standards, even if stricter, and cannot propose their own balancing act for conflicting fundamental rights. Conversely, in the absence of harmonization, national authorities can apply national standards (and balance rights accordingly) as long as the Charter’s level of protection is maintained.

If the BVerfG’s approach disregards this principle, it could paradoxically grant national courts undue authority in determining EU-member state competence, potentially leading to inconsistent application of EU law.

Furthermore, the concept of “coverage” employed by the BVerfG to justify applying the Charter over national standards should not be mistaken for technical “harmonization.” Notably, the orders themselves use the terms “not fully determined” and “completely unified,” rather than “harmonization.” This distinction is significant for several reasons.

First, the Charter applies even to areas governed by the Treaty on European Union where harmonization is not the primary objective (e.g., non-discrimination based on nationality under Article 18 TFEU and Article 21(1) of the Charter).

Second, the TFEU explicitly excludes harmonization in numerous areas where the EU has competence (e.g., combating discrimination, integrating third-country nationals, crime prevention, employment, sport, culture, public health, tourism, civil protection, administrative cooperation, common commercial policy).

Finally, the CJEU’s interpretation of existing EU rules can lead to a comprehensive legal framework even without formal harmonization.

While the BVerfG rightly states that the Charter cannot, on its own, harmonize EU law and wouldn’t apply to matters outside the scope of EU law (see TSN and AKT judgment), the CJEU can utilize the Charter as an interpretive tool to address gaps in EU legislation or as a source of general principles (Article 6 TEU). This was evident in the Max-Planck judgment, where the Charter’s direct effect compensated for the lack of horizontal direct effect of the directive. It’s commendable that the BVerfG acknowledges and doesn’t intend to challenge the direct effects of the Charter.

The second complex issue is the nature of the balancing act and the scope of “applying” EU law. These cases involve balancing competing rights between individuals, not just applying EU law in a vertical relationship between individuals and public authorities. This begs the question: is this balancing an act of application or interpretation?

The line is blurry: if the outcome hinges on the case’s specific facts, it leans towards application. However, if it involves defining the scope, nature, or hierarchy of rights (e.g., the superior position of dignity or the subordinate position of property rights), it becomes interpretation. Different judicial bodies would be responsible for interpreting or applying EU law and rights.

While national courts are generally responsible for applying and balancing EU fundamental rights, potentially leading to diverse outcomes across member states, it wouldn’t be legitimate for them to define the scope, value, or prioritization criteria of these rights as derived from the Charter or EU law, as this falls under the CJEU’s uniform interpretation. However, in exceptional cases, even the classification of facts can become an interpretative question under EU law, requiring the CJEU’s clarification.

It’s worth noting that the BVerfG’s orders align with established CJEU case law on Directive 95/46 and GDPR. Regarding the right to be forgotten, it’s preferable for the balancing of rights, which initially seemed to fall under the website operator’s purview after the Google Spain case, to be conducted by national courts under the supervision of Constitutional Courts.

The third issue concerns the role of the ECHR. While the ECHR serves as an interpretative tool, minimum standard for the Charter, and a source of general principles under Articles 52(3), 53 CFR, and 6 TEU, its role in balancing rights becomes complicated if Strasbourg and Luxembourg diverge.

The BVerfG recognizes the ECHR as an additional interpretative source but suggests in the first order that a CJEU referral might be unnecessary if the German Constitution’s standards align with the ECHR. While the BVerfG acknowledges that CJEU-developed standards are incorporated into German law, it needs to be clarified that if the two courts diverge in their balancing approach, the CJEU’s interpretation prevails, and mere compliance with the ECHR doesn’t guarantee compliance with the Charter. The ECHR cannot be used to circumvent the CJEU’s authority.

In the spirit of loyal cooperation, the BVerfG’s approach to constitutional complaints can be summarized as follows:

• For cases not fully covered by EU law, the BVerfG will balance rights based on the German Constitution, while the CJEU determines the extent of EU law’s coverage and member state discretion.
• For cases fully covered by EU law, the CJEU retains exclusive interpretive authority, defining the scope and meaning of EU rules. The BVerfG oversees, through constitutional complaints, national courts’ application and balancing of fundamental rights, without impeding ordinary courts’ ability to refer questions to the CJEU.

Ultimately, the BVerfG’s ‘new course’ doesn’t appear to contradict its cooperation with the CJEU or the preliminary ruling system (Article 267(3) TFEU). However, loyalty and openness to EU law require the BVerfG to respect the boundaries it outlined.

A critical question requiring further reflection and dialogue between the CJEU and member state courts is determining who balances rights within the EU legal order. Regarding the nature and scope of Charter rights and their balancing, the answer depends on whether the balancing act is abstract or case-specific and whether it requires interpreting EU law. When doubts arise, the CJEU should provide clarification.