Lucia Serena Rossi, Judge at the Court of Justice of the European
Union*
* The views included in this article are strictly personal
and not attributable to the Court.
** The original version of this article (in Italian)
‘Il “nuovo corso” del Bundesverfassungsgeright nei ricorsi diretti di
constituzionalità: bilanciamento fra diritti confliggenti e applicazione del
diritto dell’Unione’ was published on Federalismi.it on 5 February 2020, ISSN
1826-3534.
Table of contents:
1. The complex ‘pluri-focal’
balancing between conflicting fundamental rights in the EU multilevel system.
2. The balancing in situations not
entirely governed by Union law.
3. The balancing in situations
wholly governed by Union law.
4. Not all those who wander are
lost...
1.
The
complex ‘pluri-focal’ balancing between conflicting fundamental rights in the
EU multilevel system
On 6 November 2019 the first
Senate of the German Constitutional Court (
Bundesverfassungsgericht,
hereinafter, ‘First Senate’ or ‘BVerfG’)
issued
two important
orders
following
constitutional complaints (
Verfassungsbeschwerden) concerning the
right to be forgotten. The two pronouncements should be read jointly and one in
the light of the other. They lay down a new theory of interaction between the
systems of fundamental rights protection guaranteed, on the one hand, by the national
constitutional order, and, on the other hand, by the order of the European
Union. They also offer new guidance on the role of the relevant judiciaries,
with specific reference to the BVerfG, in the control over the application of
the Charter of Fundamental Rights of the European Union (hereinafter, ‘Charter’
or ‘CFR’).
In the cases at hand, unlike the
facts of the
Taricco
judgment of the Court of Justice (CJEU) or of the
judgment
269/17 of the Italian Constitutional Court, the matters concern horizontal
situations, requesting first of all to balance the rights of two individuals (i.e.
an entity who indexes or disseminates information online, and an individual invoking
the right to be forgotten, in the form of deindexing of information from
Google). However, as we shall see, in these cases the act of balancing is particularly
complex, because it must take into account the interests and rights not only of
these two parties, but also of others, in particular, the freedom of expression
of those who created the information and the interest of the public to receive
information. In these instances, the balancing of the rights has a
pluri-focal nature: Courts must in fact
examine, in order to make a choice, a plurality of rights and interests,
hierarchically equivalent
in abstracto,
within the same legal order.
The task of the judge is even
more complex when this balancing should be conducted in a multi-level system of
protection, such as the EU. Indeed, the interactions existing between Union law
and the constitutional systems of the EU Member States significantly influence
the activities of courts. What is at stake in these circumstances, and what
makes such balancing highly complex, it is not a conflict between a Union law
and a constitutional right, where, as established in the
Melloni
case, conflicts between Union law and national constitutional rights can be
resolved using the parameters of primacy and harmonisation. Rather, the problem
arises as to how to identify which of the various rights recognized and
guaranteed by the EU and national systems (as well as by the ECHR) to different
individuals should prevail.
By taking into account the values
of the respective legal orders, judges pertaining to different systems could reach
divergent interpretations of the ‘bundle’ of rights at stake. As a result, ‘conflicts
of balancing’ may arise, and the same right could be applied differently under
national or Union law. The complexity of the interplay between legal orders
therefore requires a coordination of the relevant systems of protection.
The two German constitutional
orders introduce a sort of actio finium
regundorum, both regarding the competent judge and the applicable standards
of protection - at least with reference to the constitutional complaint action.
This article will summarise and analyse the theory outlined in these orders in
the light of Union law.
2.
The balancing
in situations not entirely governed by Union law
The first order concerned an
individual who had committed a crime in 1981. Due to Google’s indexing, and
following the online publication by the newspaper
Der Spiegel’s archives, the name of the applicant was associated
primarily with that crime on the internet. Invoking the right to be forgotten,
and thus asking for the deindexing of that news from the research engine, the applicant
challenged before the BVerfG the
unfavourable
judgment issued by the German Supreme Court (
Bundesgerichthof).
The First Senate recalls that the
so-called ‘media privilege’ is a matter which has not been completely
determined (
nicht vollständig
determiniert) by Union law, notably, under Article 9 of
directive
95/46 (the data protection Directive) and Article 85(2) of the
General Data Protection
Regulation (GDPR). Both pieces of legislation explicitly grant deference to
the Member States to provide exemptions or derogations ‘necessary to reconcile
the right to privacy with the rules on freedom of expression’. These
derogations would also apply in relation to the treatment of personal data that
is carried out exclusively for journalistic purposes or for artistic or
literary expression. The First Senate further recalls that, despite such
balancing is mandated to the Member States by Union law, the Court of Justice
held that the question of
how
to reconcile the fundamental right to privacy and the freedom of expression
falls within the
competence
of the Member States.
The German Federal Court further
states that, in the absence of complete guidance by Union law, the fact that
fundamental rights protection systems may vary within the Member States
constitutes a ‘structural principle’ (
Strukturprinzip)
of the European Union. Moreover, the First Senate suggests anchoring the
aforementioned principle also to
Article 53
of the Charter, which refers to the possibility of (
inter alia) national constitutions giving a higher level of human
rights protection than the Charter – within their scope of application. Reliance
on this provision by the BVerfG would ensure, in line with the CJEU’s case law,
that conflicts of fundamental rights may, in principle, be resolved on the
basis of the respective fundamental rights protection systems of the Member
States.
According to the First Senate,
this interpretation of the division of competences between the EU and the
Member States is confirmed both by the principle of subsidiarity, referred to
in
Article
51(1) CFR, the Preambles of the Treaty on European Union and of the same
Charter, which both recognize the diversity of cultures and traditions of the
Member States. The First Senate further states that the Union legislature, by adopting
rules that regulate to different extents a subject-matter, also defines the framework
for the application of the fundamental rights of the Member States ‘in a
federal balance’ (
in einer föderativen
Balance). This framework is therefore based on politically responsible
decisions, subject to full compliance with the principle of subsidiarity.
Consequently, in an area not
entirely regulated by Union law, fundamental rights are mainly governed by the
German Constitution, even when domestic law implements Union law. A twofold
assumption may arise with regards to the conclusion of the First Senate: first,
EU law is intended to leave discretion to Member States as to the protection of
rights; second, the German protection regime is also supposed to fulfil the
standard prescribed by Union law, as interpreted by the Court of Justice.
Furthermore, both the Federal Constitution and Union law share the minimum
standard offered by the ECHR. According to the First Senate, a further
assessment of the adequacy of the protection based on Union law becomes
necessary only when there are sufficient and specific indications that the
level of protection ensured by the Grundgesetz
(the German Basic Law) is insufficient.
The First Senate observes that,
even if the fundamental rights provided for by the national Constitution must be
interpreted in the light of the Charter of the Union, and both these
instruments in the light of the ECHR, divergent interpretations may arise. Therefore,
the choice of the prevailing standard must be sought case by case, also with
reference to the context. In the absence of a complete guidance by Union law, although
the German Constitution is, as a general rule, the only applicable standard,
the First Senate recognizes that exceptions to this rule may arise. Exceptions to
the applicability of the German Constitutions apply whenever Union law leaves a
margin of discretion to national systems and provides, beyond a substantial
consonance (substantielle Gleichklang),
higher standards.
The First Senate seems
nevertheless to limit the scope of the Charter, and, in particular, the
relationship between the latter and secondary Union law. It acknowledges that
the Charter contributes to reconcile the different visions that Member States
have in relation to fundamental rights, in due consideration of the historical
and social context of each of them. According to the judgment, it is also
evident, however, that the Charter does not intend - and cannot - totally
uniform either national protection systems or the balancing between conflicting
rights. Therefore, any indications that Union laws, while leaving some discretion
to States, require higher protection standards than the national ones, shall
result explicitly from the wording and the context of these rules. The general
obligation that Union acts should respect the Charter of Fundamental Rights
would thus not be in itself sufficient to establish more rigorous standards
than the national ones.
One may wonder if this dictum involves an inversion of the ‘Solange
theorem’, according to which it must be assumed that national law meets the
minimum standard – and, therefore, respects EU law primacy – so long as the
national level of protection is proved to be adequate under Union law standards.
The German Court acknowledges that the presumption of the suitability of the Grundgesetz to ensure the level of
protection provided by the Charter is a presumption iuris tantum, which can be reversed if the Court of Justice claims
that the national standard is insufficient for ensuring the protection required
by Union law. However, the BVerfG highlights that it will refer to the Court of
Justice (exclusively) in case of doubts relating to the standard prescribed by
the Union; where, instead, it considers that such doubts do not exist, it will
proceed directly to incorporate the Union standard into the national ones and
to apply it.
In addition, the First Senate specifies
that it does not wish to question the direct effects of the Charter when applicable
pursuant to Article 51 thereof. The Court further explains that German ordinary
judges remain entitled to directly apply the Charter, or refer to the CJEU for
its interpretation, although they are also required to apply the
Grundsgesetz whenever Union law leaves
the Members States a margin of discretion. This statement seems to safeguard
the
Max-Planck
jurisprudence (discussed
here),
according to which some provisions of the Charter (yet, not directives) may
have horizontal direct effects.
In the theory formulated by the
German Constitutional Court, the room for manoeuvre left to the national
standards depends, in inverse proportion, on the degree of harmonisation of the
standards that Union rules (be they regulations or directives) specifically aim
to guarantee. The German Court nevertheless is respectful of the dynamic nature
of the harmonisation process carried out by the European Union and,
consequently, of the expansion of the scope of the Charter of Fundamental
Rights.
In the light of these
considerations, the German Constitutional Court notes that in the case at hand
only the national constitutional parameter applies, given that, as regards the
so-called media privilege, Directive 95/46 and the GDPR expressly leave a
margin of discretion to the Member States.
The First Senate subsequently
proceeds to balance the various rights in conflict. It observes that the right
to be forgotten, falling within the rights of the personality, does not result
in a total ‘informational self-determination’ (informationelle Selbstbestimmung), that is an exclusive right to
decide what should be removed from the Internet. Such self-determination would
conflict with rights of other people and therefore ‘horizontal’ indirect
effects must be assessed. In the case at hand, even if the freedom of
expression and of the press appears to carry less weight, as the case involved
simple online dissemination of content, it is still necessary to consider the interest
of the public to receive information.
On the one hand, the Federal
Court states that the right to informative self-determination must be
distinguished from general personal rights. While individuals should have the right
to influence the context and the way in which their data are made accessible
and used by others, they do not enjoy an unrestricted right to filter publicly
available information on the basis of their choices and ideologies, nor they
can limit that information to aspects of their personal image that they
consider appropriate.
On the other hand, the First
Senate notes that the profiling of an individual resulting from the indexing of
Internet content related to him is liable to portrait that individual. In
particular, such profiling influences the way that individual interacts in the
context of his social relationships. Specifically, everyone has the right to
change and evolve, without being continually associated with the mistakes he
made in the past. (The BVerfG cites the judgments of the Court of Justice in
this regard of 13 May 2014,
Google
Spain and Google, C-131/12, EU: C: 2014: 317, para 98 – discussed
here
– and of 9 March 2017,
Manni,
C-398/15, EU: C: 2017: 197, para 77.) In this regard, it also underlines the
importance of some factors, which must be considered on a case by case basis
and whose importance has been stressed also in the CJEU’s case law, such as the
length of time elapsed between the events and data reported in the news and the
deindexing request, or the fact that the information had been legally disclosed
or not. It is the view of the Court that the law must prevent that past views,
statements and actions are made available to the public without any
restrictions.
To deal with these conflicting
objectives, the First Senate states that it is necessary, on the one hand, to
ensure access to data by the public, and, on the other hand, to limit the
harmful effects on the concerned person's public image. The Court thus
concludes that the challenged judgment did not adequately balance all the
outlined factors, and upholds the constitutional complaint.
3.
The balancing
in situations wholly governed by Union law
The second order involved a
judgment of the Court of Appeal (Oberlandsgericht)
of Celle refusing to impose a deindexing obligation on Google in relation to
the transcription of a television interview. The request of deindexing was
submitted by the interviewee, who had been accused of unfair employment practices.
That interview had been broadcast online. Unlike the case examined above, the
matter falls entirely within the scope of the directive 95/46 and GDPR, which
have completely unified the matter of the right to be forgotten (vollständig vereinheitlicht). (As to Directive
95/46, the right to erasure of personal data (so-called right to be forgotten)
can be inferred from the combined provisions of articles 12(b) and 14(1)(a) as
interpreted by the Court of Justice with the judgment of 13 May 2014, Google Spain and Google, C-131/12, EU:
C: 2014: 317; in the case of the GDPR, however, the right to be forgotten is
expressly provided for in Article 17, which codifies the jurisprudence of the
Court of Justice.) Furthermore, the exceptions provided for the media privilege
by Article 9 of the directive are not applicable. Therefore, Member States have
no margin of discretion in this respect.
The First Senate holds that,
since the matter is regulated exhaustively by Union law, having introduced a
complete standardisation of the laws of the Member States, the Union system of
protection of rights enjoys a ‘primacy in the application’ (Anwendungsvorrang) compared to the
German Constitution.
The Court provides a twofold
clarification in this regard. On the one hand, the primacy of Union law derives
from the transfer of sovereign powers from the Member States to the European
Union. Thus, in the presence of a Union discipline of a certain subject, also
the protection of fundamental rights must follow European uniform standards, as
deriving from Union law - in particular from the Charter - and from the ECHR, constituting
the common minimum basis of protection of fundamental rights in the EU. On the
other hand, nevertheless, the First Senate recalls that the recognition of Union
law primacy is subject to the condition that the protection guaranteed thereunder
is sufficiently effective, although according to the consolidated jurisprudence
of the same BVerfG, the Union standards are presumed to equate those of the Grundgesetz.
(Since the judgment of 22 October 1986 - 2 BVR 197/83 (so-called Solange II),
the BVerfG has ackowledged the primacy of EU law - and therefore the
inadmissibility of a constitutional complaint brought against an act adopted by
the Community - so long as the protection of fundamental rights at European
level has been adequate. In the subsequent case law, starting from the judgment
of 12 October 1993 - 2 BvR 2134, 2159/92, on the Treaty of Maastricht, the
BVerfG has identified two instruments by which to ascertain this adequacy: the
so-called identity review and the ultra vires reviews, both based on Article 79,
par. 3 GG and exercised in accordance with the principle of openness to EU law
(Europarechtsfreundlichkeit). This
case law enables the BVerfG to verify whether the EU acts have been adopted in
manifest and structural violation of the limits to Union jurisdiction deriving
from the principle of attribution or whether they violate the essential core of
the national constitutional identity; for a summary of these principles, see
the ordinance of 24 January 2014 - 2 BvR 2728/13, paras 22-30.)
As long as the fundamental rights
of the German constitution are replaced by the ‘primacy of the application’ of
Union law, the Federal Constitutional Court controls the application of Union
rights by German authorities, in the light of the ECJ case law and Charter of Fundamental
rights. In an unexpected and explicit way, the First Senate thus affirms its
competence to carry such balancing itself, checking that the national
authorities respect Union fundamental rights when enforcing Union law.
The ‘new course’ of the
fundamental rights’ protection system in Germany is more evident in this order than
in the other one. In its previous jurisprudence, the BVerfG had never chosen to
apply Union parameters directly, leaving that task to the German ordinary
judges who cooperated with the Court of Justice through the instrument of
preliminary ruling procedure. The main novelty introduced by the second order
is that the Federal Court will no more refrain from exerting its full scrutiny in
the assessment of the compliance by national authorities and courts with Union
fundamental rights in areas fully regulated under Union law. This assessment
will be carried in full collaboration with the Court of Justice pursuant to
Article 267(3) TFEU. The ground of this new reasoning is that Article 23(1) of
the German Constitution and the ‘principle of openness’ established therein
must not be interpreted as imposing negative obligations, thus exempting the
German Federal Court from any checks on matters whose jurisdiction has been
transferred to the Union. Instead, that principle should be read as
attributing, in a positive sense, ‘responsibility for integration’ to all bodies
of the German state, including the BVerfG, when it comes to the implementation
and development of the Union integration process. In this way, the fundamental
rights of the Union are incorporated among the judicial tools that the Federal
Court applies in the Verfassungsbeschwerden.
Yet, the ‘new course’ seems
strictly limited to direct actions of constitutional review: Through this new
interpretation, the Court claims to be able to fill the judicial protection gap
resulting from the absence of individual direct actions before EU Courts
regarding the application of the Union fundamental right. According to the First
Senate, this lacuna would not be sufficiently filled by the possibility that
ordinary judges submit preliminary ruling requests to CJEU. Consequently, the
only appropriate remedy is to extend the Verfassungsbeschwerde
to the application of Union fundamental rights.
The Federal Court acknowledges, remarkably,
that it will use the parameters laid down in the Charter in close cooperation
with the Court of Justice. That Court has in fact the ‘last word’ (
letztverbindliche Auslegung) on the
interpretation of Union law in accordance with Article 19 TEU and 267 TFEU. The
interpretative monopoly of the CJEU over EU law also includes the
interpretation of Charter rights and the development of the principles
necessary for their application, without prejudice for the obligation of
national judges of last instance to refer questions to the CJEU, as required by
the
CILFIT
doctrine.
The First Senate specifies that
it will itself use the instrument of the preliminary reference when the matter has
not already been clarified by the CJEU, or if the principles of interpretation
to be applied are not evident - for example on the basis of the jurisprudence
of the European Court of Human Rights, which also determines the content of the
Charter in individual cases pursuant to
Article
52(3) CFR.
The First Senate further
recognizes that although the protection of the fundamental rights of the Grundgesetz and that of the Charter can
often coincide and the principles of interpretation can be transferred from a
system to another, caution is needed in the context of such interpretative
activities so as not to affect the unity of EU law. In principle, in these
cases the interpretation of the BVerfG must be based directly on the
fundamental rights of the Charter itself and the jurisprudence of the CJEU,
which is linked to the understanding of fundamental rights in the Member States
of the Union as a whole. In particular, it is for the Court of Justice to
interpret the fundamental rights of the Union pursuant to article 267(3) TFEU
while the German Constitutional Court acts as a judge of last instance when
deciding a Verfassungsbeschwerde.
Interestingly, in the case at
hand the First Senate concludes that it is not necessary to refer to the CJEU:
the Court claims that no questions requiring a new interpretation of the ECJ,
or whose solution could not be traced in the existing CJEU’s case law read in
the light of that of the Strasbourg Court (The Strasbourg Court’s case law
constitutes an additional source of interpretation of the Charter pursuant to Article
52(3) CFR), arise. Moreover, it is not necessary to ask whether the ordinary
judge, if acting at last instance, is required to submit a reference to
Luxembourg, since the
Oberlandsgericht
is not a judge of last resort. Finally, the first Senate claims to be able to
decide itself without having to refer the matter to the
plenum of the Constitutional Court, as it does not carry out any
revirement of
Solange II
jurisprudence. While the latter ruling raised problems of compliance of Union
rules with the German Constitution, the present case is different in that it
concerns the application of fundamental rights of the European Union under a
fully harmonised legal framework.
The First Senate states that its
task is, in the present case, not to check the correct application of the
directive, but rather to verify whether the judgment under appeal correctly struck
the balance among the different rights involved. Therefore, using the parameter
of the Charter of fundamental rights of the Union, the BVerfG directly assesses
the application of Union law by national authorities. In the light of these considerations,
the Court considers the action admissible, but unfounded.
For this purpose, the First
Senate reformulates the constitutional complaint’s subject: although the applicant
referred only to the German Constitution, he in fact complained about the
violation of his rights to respect for private and family life and
confidentiality, as stemming from the articles 7 and 8 of the Charter. Taking
into account these latter provisions, the Court finds that the contested
judgment is not manifestly invalid, since it had correctly assessed all the
interests involved and their interplay. The First Senate points out that the
present case is different from the one examined by the CJEU in
Google
Spain, and that it cannot be assumed that the right to privacy should
automatically prevail over other conflicting rights, such as freedom of
expression: all these rights must instead be placed on an equal footing. In evaluating
the various interests, the German Court considers
different
CJEU
judgments
and expressly cites them. The First Senate essentially embraces the defensive
arguments raised by Google according to which, in the present case, particular
attention should be paid to the fact that the processing of personal data is
included in television communications, the fact that the complainant's private
life was not affected, since this news concerned his professional life, and
that there was in any event a general interest for that information to be
shared with the public.
First of all, Google’s freedoms
to conduct business, laid down in Article 16 of the Charter, and of expression,
protected under Article 11 Charter, are not in themselves prevalent over the
applicant’s privacy right. However, third parties’ rights must also be balanced,
notably, against the general interest of the public to be informed and the
freedom of expression of the broadcaster. As a result, the deindexing requested
by the applicant would result in a restriction of the dissemination of an
online publication.
In addition, the balancing must
be carried out by not giving the individual the right to decide what
information concerning him can be disseminated online, but by evaluating in concreto the possible damages to the
right to free self-determination caused by the diffusion of certain information.
This assessment should consider different factors. In this regard, the Oberlandsgericht erred in assessing that
the issue concerned only the social life of the applicant. Given the ease of
finding information on the Internet, it indeed becomes difficult to trace the
limits between threats to the social sphere and those to the private sphere.
Nonetheless, the Oberlandsgericht had
correctly assessed, first of all, the influence of elapsed time between the
events and the deindexing request, as prescribed by Article 17 of the GDPR;
secondly, the fact that the information transmitted did not amount to slander,
but was based on true factual data; thirdly, the fact that the information
concerned not the applicant's private life, but his role as employer; and,
finally, that the interview had been granted voluntarily. Therefore, according
to the First Senate, the contested judgment did not fail to assure sufficient
effectiveness to the Charter, nor was it based on an incorrect understanding of
the meaning and scope of the rights provided thereunder.
4.
Not
all those who wander are lost…
The orders discussed above raise
some questions about the compatibility of the ‘new course’ concerning the
protection of fundamental rights with Union law.
First, one might wonder whether
the fact that the Constitutional Court itself decides the case, without
referring the case back to the national lower courts, may risk creating a short
circuit in the relationship between legal systems and violating the principle
of loyal cooperation, protected by Article 4(3) TEU. This concern involves
especially the outcome of the first order of the
Bundesgerichthof, which, as a judge of last instance, could have
(and should have) applied to the CJEU in case of doubt under Article 267(3)
TFEU. Yet, if this new course is limited, as it might appear from the analysis
of the two orders, to only the direct actions of constitutional review in the
field of fundamental rights (
Verfassungsbeschwerden,
provided under Article 93(1), no 4(a) of the
Grundgesetz), those concerns are unfounded. The national judge
could indeed still have referred the matter to the CJEU before issuing its
judgment, and, therefore, prior to the BVerfG’s decision on the direct action. If
the issue arises before a judge of last instance, the duty to refer to the CJEU
would have applied in accordance with Article 267(3) TFEU, within the limits of
the
CILFIT doctrine.
An essential element making this
‘new course’ compatible with Union law is that BVerfG states that the powers of
national courts to refer to the Court of Justice are not questioned. Indeed,
the BVerfG itself will dialogue with the CJEU when applying the Charter of
fundamental rights of the Union. Judges of last instance can therefore submit
any interpretative question to the CJEU, even in the absence of direct action
of constitutional review, on which also the BVerfG could refer under Article
267 TFEU.
This approach does not entail any
limitation to the powers of national judges to refer to CJEU. The two orders of
the Federal Court lead to a different outcome from the
judgment
no. 269 of 2017 of the Italian Constitutional Court, which seemed to suggest
a constraint on the power of national judges to make preliminary ruling
requests. However, this reading of the Italian Constitutional Court has later been
denied
by the
Court
itself in subsequent judgments.
It is nevertheless clear that, if
the jurisprudence of the Federal Court evolved in such a way as to expand its
role beyond the
Verfassungsbeschwerden
to the detriment of the application of Article 267(3) TFEU by ordinary judges,
the same criticisms raised in relation to the Italian Constitutional Court
judgment n. 267/2017 would apply. Such a jurisprudential development would
be
in breach of the well-established
case
law of the
Court
of Justice since the
Simmenthal
case. It is evident that the caselaw of these Constitutional Courts expresses a
shared desire for a more active and direct role for those courts in the
application of fundamental rights. Although they seem eager to play a greater role,
it may be affirmed that none of these Courts seem to intend to undermine the
preliminary reference system.
However, there is another
important element which must be taken into account when assessing the
compatibility of the ‘new course’ with Union law, that is the distinction (not
easy to identify) between interpretation and application of Union law.
It must be considered that, the
Treaties established through the mechanism of the preliminary reference a true
monopoly on the
interpretation of EU
law of the Court of Justice. Such monopoly is necessary to guarantee the
uniform application of European Union legal rules and the equality of the
Union’s citizens and Member States before Union law. This monopoly does not
affect the fact that it is for the national judges to decide, on a case-by-case
basis, the
application of European Union
standards and principles developed by the Luxembourg jurisprudence. Under this
classification, one could argue that the second order issued by the First
Senate is only apparently
divergent
from the
Google Spain judgment, as it is the
result of an
application of EU law.
The subsequent question arises as to what parameters should be used to assess
whether an
application of EU law by
national courts reflects the
interpretation
provided by the Court of Justice. This would be a matter for the Luxembourg
Court to adjudicate, due to its monopoly on the interpretation of EU law. National
judgments should even
disapply
national law conflicting with European rules having direct effects.
Moreover, the Court of Luxembourg is increasingly urging national courts to
find themselves the concrete solution to cases and applying EU law in light of
the characteristics of the litigation pending before them.
In this regard, with the aim to
draw a map of the duties of the various judges of the multilevel system, it can
be noted that the concept of full harmonisation used by the BVerfG does not
always lend itself to being coordinated with that of direct effects, which
Court of Justice (see, again, the
Popławski
II judgment) reiterated as constituting the precondition for the
national judge's power / duty to disapply the national rule in conflict with
that of the EU, when no consistent interpretation of national law in the light
of EU law can be reached.
As a result of this judicial ‘ménage-à-trois’, the task that the
BVerfG arrogates for itself is that of controlling, through the instrument of
direct action of constitutional review, that the German courts comply with the
application of fundamental rights in the light of the following principles. For
the purpose of this control, national ordinary judges should use the
Constitutional parameter if the matter is not completely governed by Union law,
and that of the Charter of Fundamental Rights in case a complete discipline has
been adopted at European Union level. As to the balancing between fundamental
rights, the direct action of constitutional review is a further guarantee for
individuals in addition – and with no limitation – to the powers of the
ordinary judges and the procedure envisaged at article 267 TFEU.
This reading is certainly acceptable
under Union law, but there are some crucial aspects to it worthy of further
analysis.
The first one concerns the
concept of "full coverage", which has a significant importance in the
reconstruction of the BVerfG to define the parameters of the balancing between
the various colliding rights.
Firstly, it should be noted that,
in case of doubt, only the Court of Justice, and not a Constitutional Court,
can define the degree of coverage, whether exhaustive or not, entailed by Union
law. Also the margin of discretion, which remains (or not) to the Member States
and the national courts should be
defined
by the
Court
of Justice.
It is indeed the Court of Justice
itself which recognises, in its case-law, the impact of the degree of harmonisation
of a matter by EU law on the possibility for Member States to invoke national
standards for the protection of rights: if EU law harmonised these standards,
Member States are barred from invoking their own, even if they are higher than
the harmonised ones, and therefore, proposing their own autonomous balancing in
the event of any conflicts between fundamental rights. In the absence of
harmonisation, however, national authorities and judges remain free to apply
national standards for the protection of fundamental rights (and therefore to
balance these rights), provided that the level of protection provided for by
the Charter is not compromised.
In case this caveat was not
followed, the ‘new course’ of the BVerfG would lead to a paradoxical
consequence, by reserving to the national judge – and to the non-consistent
application – a very delicate question of division of competences between the
EU and the Member States.
In addition, the concept on which
the two orders offered prevalence to the application of the Charter of
Fundamental Rights, instead of the Constitutional standards, should not be
understood as "harmonisation" in a technical sense, but rather as
regulatory "coverage" or "discipline". Moreover, contrary
to the press releases in English, the two orders do use not the term
"harmonisation" (Harmonisierung)
in the original text, but (nicht) vollständig determiniert (in the first
order) and vollständig vereinheitlicht werden
(in the second order). The two expressions do not coincide: the first one,
usually used by the BVerG in connection with Union law, indicates that a matter
is fully determined, while the second one implies a real unification. One could
actually wonder if the use of two different terms in the context of two orders,
that prescribe the application, in the first case, of the constitutional
parameter, and, in the second, of the Charter of fundamental rights, is either
random or voluntary. In this latter hypothesis, the issue arises as to whether the
BVerG intended to make a distinction also with regard to the scope of the
Charter.
Beyond this doubt, the fact that
there is no mention of harmonisation is important for three reasons. First of
all, it should be recalled that the Charter also applies with reference to
fundamental freedoms and other provisions of the Treaty on European Union (a
peculiar case of applicability of the Charter in conjunction with the
provisions of the Treaty could be represented by the principle of
non-discrimination on the basis of nationality, pursuant to Article 18 TFEU and
Article 21(1) of the Charter; the applicability of the first provision, in
fact, precisely presupposes that the situation falls within the scope of EU law
but is not governed by specific prohibitions of discrimination on the basis of
nationality provided for by other primary or secondary legislation, such as
example the provisions on fundamental freedoms; see, for a reconstruction of
the case law of the Court on the matter, the judgment of 18 June 2019,
Austria
/ Germany, C-591/17, EU: C: 2019: 504, paragraphs 37-41), for which it
would be inappropriate to discuss in terms of harmonisation. (Even before the
recognition of the binding legal value of the Charter with the entry into force
of the Lisbon Treaty, the CJEU had faced similar problems in the judgments of
12 June 2003,
Schmidberger,
C-112/00, EU: C: 2003: 333 and of October 14, 2004,
Omega,
C-36/02, EU: C: 2004: 614.)
Furthermore, strictly speaking, harmonisation
is expressly excluded from the Treaty on the Functioning of the EU in a large
number of subjects, on which EU competences yet exist. In particular, the TFEU
excludes harmonisation in the fight against discrimination (Article 19), in the
integration of third-country nationals legally residing in the EU (Article 79),
in crime prevention (Article 84), in the incentive to employment (Article 149),
in support competences, such as sport (Article 165), culture (Article 166),
public health (Article 168) tourism (Article 195), civil protection (Article 196),
administrative cooperation (Article 197), in the common commercial policy (Article
207), and, finally, in the general residual clause on implicit powers (Article 352).
Finally, the more or less
complete "coverage" by law of the Union can derive not only from
harmonisation, in a technical sense, but also from interpretation that the CJEU
has given to existing rules. Even if an act of the Union does not fully harmonise
a matter, it should be still applied in the light of the interpretation - which
sometimes leads to creative interpretative outcomes – of the CJEU.
If it is true that, as the BVerfG
states, the Charter itself cannot harmonise Union law – and, indeed, it could
hardly find application in connection with a subject matter that is not, at
least in part, governed by Union law (see judgment in
TSN
and AKT) – it can nevertheless be used by the CJEU as an interpretative
tool to fill any potential gaps in a Union act, as a source of general
principles (in line with Article 6 TEU). This is what happened, for example, in
the
Max-Planck
judgment, in which the direct effects of a provision of the Charter have
overcome the lack of horizontal effects of a directive. In this regard,
however, the BVerfG must be praised for having expressed its intention not to
question the direct effects of the Charter.
The second complex issue concerns
the nature of the balancing and the delimitation of the concept of
‘application’ of European Union law. As mentioned above, in situations similar
to those considered by the analysed orders, the matter is not the application
of Union acts and rights stemming therefrom in a vertical relationship between
the individual and the public authority, but the balancing between conflicting
rights of different individuals. The question thus arises: is this balancing an
act of application or interpretation?
The boundary is subtle: to the
extent that the solution depends on the facts of the litigation, it is an
application. However, whenever the issue concerns the content of certain
rights, their absolute or relative nature, or even their respective hierarchy (this
is the case, for example, for dignity, hierarchically superior, or for the
right to property, hierarchically lower), this would undoubtedly be an interpretation
question. Different judges would be called to solve cases of interpretation or
application of Union law (and rights).
On the one hand, in principle,
the task of applying the fundamental rights provided for by EU law and the
possible balancing between them when they conflict with each other must be
attributed to the national courts, leading to varying solutions for different
cases and in the various legal systems of the Member States. On the other hand,
however, it would not be legitimate for the scope and value of those rights, as
well as any priority criteria among them - which can be inferred from the
Charter, or from EU law - to be subject to assessments different from the
national courts, even constitutional, subtracting them from the uniform
interpretation of the Court of Justice. Finally, it should be noted that, as an
exception (though not rare), situations may arise in which the
classification
of the facts of the case itself becomes an
interpretative
question of EU law. In these circumstances, different legal solutions can
be provided to solve that issue, the Court of Justice being the competent court.
Overall, it must be observed that
the two orders examined in this article take due account of the substantial
case
law of the CJEU on
Directive
95/46 and
GDPR
and apply the criteria developed by it thereunder. As for the right to be
forgotten, it is in fact preferable that the balance between the various
rights, which following
Google
Spain seemed entrusted to the operator of the website, is carried out
by the national judge under the control of the Constitutional Court.
The third crucial issue concerns
the role that the ECHR and the relevant jurisprudence play in this theoretical
construction. The fact that, pursuant to Articles 52(3) and 53 CFR, the ECHR
can be an interpretative tool and a minimum standard with respect to the
Charter, or a source of general principles of law (as can be inferred from Article
6 TEU) could prove to be of little help when it comes to balancing various
rights, especially if Strasbourg and Luxembourg come to different
configurations of this balancing. The BVerfG qualifies the ECHR as an
additional source, but in the first order it seems to argue that it will not be
necessary to refer to the CJEU when no doubts about the adequacy of the
parameters of the German Constitution raise, because of their compliance with
the ECHR standards. It is certain that the BVerfG also specifies that the
standards developed by the CJEU are incorporated into the German Constitution.
However, it should be clarified that, in the event of a divergent balancing
struck in the jurisprudence of the two supranational courts, that of Luxembourg
must prevail and compliance with the parameters of the ECHR does not
necessarily equates to compliance with those of the Charter. In other words,
the ECHR case law could not be used as an alibi to circumvent the CJEU's
interpretative monopoly on Union law.
In a logic of loyal cooperation,
the overall structure of judicial dialogue inaugurated by the two orders
examined in this article in the field of constitutional complaints before the
BVerfG should be understood as follows. In the event of incomplete regulatory coverage
of the case by EU rules, if the balancing is to be done in the light of the
parameters of the German Constitution – a duty to be carried out by the BVerfG
– the CJEU is responsible to define the existence and the degree of coverage of
the discipline dictated by EU law and, therefore, the residual margin of
discretion left to the Member States. Instead, in the case of full regulatory coverage
by EU law, the CJEU will interpret the EU rules exclusively, defining not only
the scope but also the meaning. In parallel, the BVerfG will supervise in the
context of constitutional complaints the respect and balancing of fundamental
rights offered by ordinary judges in the application of Union rules, without
prejudice to the powers of the ordinary German judges to make the preliminary
reference to the CJEU.
Ultimately, the ‘new course’ of
the German Constitutional Court does not seem to deviate from a consolidated
logic of cooperation with the CJEU, nor, subject to the caveat outlined above,
does it seem to call into question the logic of the preliminary ruling of Article
267(3) TFEU. The loyal cooperation imposed on constitutional judges under Article
4(3) TEU as well as the principle of openness to Union law, enshrined in Article
23(1) of the Grundgesetz, however,
require the Federal Court to respect the limits drawn in the two orders on the
right to be forgotten.
A critical problem, on which
reflections and exchanges between the Court of Justice and the judges of the
Member States become increasingly needed, is how determine who is responsible
for striking the balancing of rights within the scope of EU law.
With regard to the nature and
scope of the individual rights affirmed by the Charter - also with reference to
the balancing between them - the answer seems to depend, firstly, on whether
the balancing has a general and abstract nature, or instead concrete and linked
to the particularities of the case, and, secondly, on whether an interpretation
of EU law is required. If doubts arise about these alternatives, the
clarification should be requested to the Court of Justice, pursuant to Article 267(3)
TFEU.
Barnard & Peers: chapter 9
