Realignment of the German Fundamental Rights Review: Implications of the “Right to be Forgotten” Decisions for the Application of the EU Charter of Fundamental Rights as a Relevant Standard

With its two decisions of 6 November 2019 on the so-called Right to be Forgotten (1 BvR 16/13 and 1 BvR 276/17), the Second Senate of the Bundesverfassungsgericht has significantly realigned the German fundamental rights review of legal acts determined by EU law. In the Right to be Forgotten II decision, the Court has for the first time applied the fundamental rights of the EU Charter of Fundamental Rights to the review of legal acts that were fully harmonised under EU law. In matters that afford Member States legislative latitude, the fundamental rights of the Basic Law remain the relevant standard of review (Right to be Forgotten I). This chapter assesses the above‑mentioned decisions of 6 November 2019 and some of their direct implications. In particular, the criteria for distinguishing the respective spheres of fundamental rights, possible convergences, but also differences will be examined, as well as the question of the extent to which this new case law has already been implemented by the German courts of general and specialised jurisdiction. In this context, the role of the Bundesverfassungsgericht in the European multilevel court system vis-à-vis the Court of Justice of the European Union will also be addressed.