Case summary

Deciding Body
Federal Constitutional Court
National case details
Date of decision: 06.11.19
Registration ID: 1 BvR 276/17
Instance: Constitutional
Case status: Final
Area of law
Data protection

Mass media
Relevant principles applied

Life-cycle diagram

  1. 22 April 2016

    LG Lüneburg, 22.04.2016 - 3 O 149/15

  2. 29 December 2016

    OLG Celle, 29.12.2016 - 13 U 85/16

  3. 6 November 2019

    BVerfG, 06.11.2019 - 1 BvR 276/17

Identification of the case

Fundamental rights involved
  • Respect for private and family life (art. 7 CFREU)
  • Protection of personal data (art. 8 CFREU)
National law sources
  • BDSG § 29 (2) Nr. 1, § 35 (2) S. 2, § 41
  • BGB §§ 823 (1), 1004
  • GG Art. 1 (1), Art. 2 (1)
EU law sources
  • Art. 7, 8 CFREU
  • Art. 12b Directive 95/46/EC

Summary of the case

Facts of the case

On 21 January 2010, Norddeutscher Rundfunk (NDR) televised a report by the television magazine "Panorama" entitled " Dismissal: The employers' nasty tricks". Towards the end of this article, the case of a dismissed former employee of the company managed by the plaintiff as managing director was presented. In the report, she was accused of unfair treatment of the employee in connection with the planned establishment of a works council. She had given an interview for the "Panorama" contribution in which, among other things, the dismissal of this employee was discussed. The NDR published this report (including a transcript of the interview) on its website. When entering the full name of the plaintiff into the search engine of the defendant (Google LLC), the report is one of the first results. After the defendant refused to delete the link between the plaintiff’s name and the report, the plaintiff requested an injunction against the defendant at the district court. The district court granted the injunction on the basis that the general right of privacy of the plaintiff outweighs the freedom of information of the defendant six years after the publication of the report. In contrast, the Higher Regional Court agreed with the defendant and refused the injunction as the practical protection against dismissal is a topic of general interest and, thus, the right to information related thereto deserves a special extent of protection. With her constitutional complaint, the plaintiff asserts a violation of her general right of personality and her fundamental right to informational self-determination (Article 2 (1) in conjunction with Article 1 (1) of the German Constitution).

Type of enforcement
  • Civil judicial enforcement
  • Other
Measures, actions, remedies claimed/applied

Constitutional complaint regarding the violation of fundamental rights Injunction to not further display name of plaintiff on the search engine

Reasoning (legal principles applied)

The Federal Constitutional Court holds that it reviews the application of Union law by German authorities on the basis of the standard of Union fundamental rights. Such a control is only possible to the extent that the fundamental rights of the German Constitution are superseded by the primacy of application of Union law. The Constitutional Court deems this approach possible and its responsibility under art. 23(1) German Constitution. To the extent that the Federal Constitutional Court applies the Charter of Fundamental Rights of the European Union as its standard of review, it exercises its control in close cooperation with the European Court of Justice through the preliminary reference procedure under art. 267 TFEU. In the application of completely harmonised provisions under Union law, the principle of the primacy of application of Union law generally entails that the fundamental rights of the Basic Law are not decisive, but only the fundamental rights of the Union. The primacy of application is i.a. to the condition that the respective fundamental right is protected sufficiently effective through Union law. Like the fundamental rights of the German Constitution, the fundamental rights of the Charter guarantee not only protection in the relationship between state and citizen, but also in disputes under private law. Therefore, on the basis of the relevant specific law, the fundamental rights of the parties involved have to be balanced. Thereby, the Constitutional Court takes the same approach regarding the Charter as with the Constitution: it does not examine the specific law, but ensures that the balancing exercise of the court was appropriate. Insofar as the plaintiff demands that a search engine operator refrains from linking certain contents to their name, the balancing exercise requires an inclusion of the personal rights of the plaintiff (Art. 7 and Art. 8 Charter). Furthermore, the courts must take into account the fundamental rights of the respective content providers and the information interests of Internet users within the scope of the entrepreneurial freedom of search engine operators (Art. 16 Charter). The Constitutional Court also holds that the prohibition of linking search results to concrete content limits the freedom of expression of content providers by depriving the provider of an important medium for its dissemination.

Role of the Charter and role of the general principles on enforcement

Relation to scope of the Charter

The Charter is applicable in the present case as the EU law regarding data protection is entirely harmonised. Consequently, only the Charter of Fundamental Rights is applicable and not the German constitutional list of fundamental rights. The Constitutional Court considers the field of data protection (especially art. 6 and 7 of Directive 95/46/EC) entirely harmonised as it is subject to constant jurisprudence by the CJEU. The provisions are unconditional in content, final and exhaustive and have to be applied uniformly across the EU. The Member States may neither exceed nor fall short of their requirements. The Court does not discuss whether this directive suffices as assumption of an entirely harmonised area of law, but instead holds that such harmonisation can now be argued with the adoption of the data protection regulation. The Court finds this extension necessary, because the increasing consolidation of Union law would otherwise result in a protection gap for individuals. As individuals cannot rely on the list of fundamental rights of the German Constitution in entirely harmonised areas of law (such as data protection) and there is no right for them to complain to the CJEU, the constitutional court finds it necessary to extend the constitutional complaint to include the Charter as standard of review.

Relevant principles applied
  • Equivalence
Principle of equivalence

The Constitutional Court does not use the principle of equivalence in its argumentation Nevertheless, it is noteworthy that the Constitutional Court deems the Charter of Fundamental Rights a functional equivalent to the list of fundamental rights contained in the German Constitution. Following the primacy of application of EU law, the Court holds that Charter rights can be invoked through a constitutional complaint at the German Constitutional Court when the relevant legal area has been entirely harmonised at the EU level. Thereby, the Constitutional Court uses the equivalent nature of constitutional rights and rights in the Charter as justification for extending the constitutional complaint mechanism to the EU Charter.

Additional notes on the decision

External links

Case author

Mareike Hoffmann, University of Passau

Published by Gianmatteo Sabatino on 29 January 2020