CYIL Vol. 4, 2013

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.