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DAVID PETRLÍK
CYIL 4 ȍ2013Ȏ
Three short remarks can be made. First of all, it must be emphasised that the
German Constitutional Court does not require the same level of protection, but
only an equivalent one. More precisely, it continues to require that the protection by
the EU system is “substantially the same” and ensures generally the substance of the
fundamental rights.
44
Furthermore, its approach is based on a rebuttable presumption that the protection
by the EU system is equivalent, which forces the applicant to prove that it is not.
What makes the rebutting of such a presumption the more difficult is the fact that
the court proclaims the intent to exercise its powers in a manner that is reserved and
open towards EU law.
45
As regards the analysis of the equivalent nature of the EU standard, it is finally
essential whether the court examines the
general
level of protection granted by the
Union or the protection guaranteed in the
concrete
case. In this regard, it had been
traditionally assumed that the German Constitutional Court reviewed only the general
standard of protection.
46
However, the
Data Retention Ruling
can be interpreted as
hinting that the court began reviewing the equivalent nature of the EU standard in
specific cases.
47
If this interpretation is confirmed, the court would toughen its position
and it would shift its attitude toward the third approach of constitutional review.
The latter is themost radical, and it canbe regardedas a full reviewof constitutionality
of Union measures. It is exercised by the Polish Constitutional Tribunal, which has
carried it out even after the Treaty of Lisbon. According to this approach, EU acts
are directly subject to a constitutional review, with two reasons being put forth to
justify this solution. Firstly, the Constitution is considered to retain its superiority
and primacy over all legal acts which are in force in the national legal order, including
the acts of EU law. Second, EU acts may contain rules upon which basis a court or
44
See
Data Retention Ruling
, paragraph 181: “im Wesentlichen gleich” and “den Wesensgehalt der
Grundrechte generell verbürgt”.
45
See, regarding the related domain of
ultra vires
review, Order of the German Constitutional Court of
6 July 2010,
Honeywell
, 2 BvR 2661/06, paragraph 59.
46
The former President of the German Constitutional Court Mr. Limbach repeatedly maintained in
public that this court would not carry out a review in specific cases. In a speech on 29 June 2000 at the
Berlin Walter Hallstein Institut, he affirmed that “the protection of fundamental rights at the European
level may lag behind the German national protection of fundamental rights… As the German
Constitutional Court limited its role to a general guarantee of inalienable fundamental rights, breaches
of fundamental rights by European institutions cannot be invoked in specific cases. Only when the
essential standard of fundamental rights is generally not guaranteed are the constitutional complaints
and references from ordinary courts admissible. So only then is the reserve jurisdiction revitalized if the
level of protection guaranteed by the Court of Justice has generally fallen behind the level of protection
achieved in 1986 [when
Solange II
was given]. Respect for final decisions of the Court of Justice and the
central idea of cooperation are not compatible with individual control by national constitutional courts
and their use as watchdogs” (cited in German in E. Vranes, “German Constitutional Foundations of,
and Limitations to, EU Integration: A Systematic Analysis” German Law Journal, Vol. 14, No. 1, 2013,
p. 105 and footnote 182).
47
See M. Bäcker, “Solange IIa oder Basta I? Das Vorratsdaten Urteil des Bundesverfassungsgerichts aus
europarechtlicher Sicht” (2011) Europarecht 103, 107 and Vranes,
supra
note 46, at 106.