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Right to be Forgotten II – 1 BvR 276/17

BVerfG
Recht auf Vergessen II – Right to be Forgotten Unofficial convenience translation

Guiding Principles (Leitsätze)
to the decision of the First Senate of 6 November 2019 – 1 BvR 276/17 –

  1. Insofar as the fundamental rights of the Basic Law are superseded by the primacy of Union law, the Federal Constitutional Court monitors its application by German authorities on the basis of the Union fundamental rights. The court thereby exercises its responsibility for integration under Article 23.1 of the Basic Law.
  2. In accordance with the principle of the primacy of Union law, the application of rules which are fully harmonised in Union law is, as a general rule, governed not by the fundamental rights of the Basic Law but solely by the fundamental rights of the Union. This primacy of application is subject, inter alia, to the proviso that the protection of the respective fundamental right by the fundamental rights of the Union that are applied instead is sufficiently effective.
  3. To the extent that the Federal Constitutional Court applies the Charter of Fundamental Rights of the European Union as a standard of review, it exercises its control in close cooperation with the European Court of Justice. In accordance with Article 267 (3) TFEU, it submits the matter to the Court of Justice.
  4. Like the fundamental rights of the Basic Law, the fundamental rights of the Charter guarantee protection not only in the state-citizen relationship but also in private law disputes. On the basis of the relevant specialist law, the fundamental rights of the parties involved must therefore be balanced. In this respect, the Federal Constitutional Court – as with the fundamental rights of the Basic Law – does not examine the specialised law, but only whether the specialised courts have taken sufficient account of the fundamental rights of the Charter and have found a reasonable balance.
  5. Insofar as those affected demand from a search engine operator to refrain from providing evidence of and linking certain contents on the net, the fundamental rights of the respective content providers as well as the information interests of the Internet users must be taken into account in the weighing up required by this, in addition to the personal rights of the affected persons (Art. 7 and Art. 8 GRCh) within the framework of the entrepreneurial freedom of the search engine operators (Art. 16 GRCh).Insofar as the prohibition of search evidence is issued in consideration of the concrete content of the publication and thus deprives the content provider of an important medium for its distribution which would otherwise be available to him, this constitutes a restriction of his freedom of opinion.

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FEDERAL CONSTITUTIONAL COURT – 1 BvR 276/17 –

In the Name of the People

In the proceedings concerning a constitutional complaint by … ./. …

the Federal Constitutional Court – First Senate – […] has decided on 6 November 2019: The constitutional complaint is rejected.

Reasons:

A. The constitutional complaint concerns a claim asserted against a search engine operator for the omission of the display of a search result which appears when the full name of the complainant is entered.

I. 1. On January 21, 2010, Norddeutscher Rundfunk broadcast a report in the television magazine “Panorama” entitled “Kündigung: The nasty tricks of employers”. Towards the end of this contribution, the case of a dismissed former employee of the company managed by the complainant as managing director was presented. In the article, 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” article which, among other things, dealt with the dismissal of this employee.

Norddeutscher Rundfunk posted a file with a transcript of the “Panorama” article entitled “The nasty tricks of the employers – The first” on its website. When the full name
of the complainant was entered into the search mask of the search engine operator Google Inc., now Google LLC (‘the defendant’), which is the defendant in the main proceedings, one of the first search results displayed was a link to that file. The complainant objected to the display of that link by the internet search engine.

After the search engine operator had refused to refrain from displaying the search result criticised by the complainant, the complainant brought an action before the Regional Court and applied for an order that the court order the complainant to refrain in future from providing further evidence of the link displayed when entering her name in the search engine.

2. In its ruling of 22 April 2016, the Regional Court sentenced the search engine operator to remove the link to the website of the Norddeutscher Rundfunk (North German Broadcasting Corporation), on which the file with the transcript of the “Panorama”

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article is posted, which was displayed when the complainant’s name was entered, to refrain from forwarding the link to this website and to take suitable measures to prevent the link from appearing again after removal. The complainant was entitled to this claim under §§ 823 and 1004 of the Civil Code in conjunction with Article 1.1 and Article 2.1 of the Basic Law.

More than six years after the interview with the complainant, the display of the disputed search result, the title displayed and the forwarding to the website with the transcript of the “Panorama” article constituted an unlawful encroachment on the complainant’s general right of personality in the form of the right to informational self-determination.

In contrast, the freedom of the press of the editorial team producing the article and the freedom of the public to be informed were no longer to be given priority. Nor did consideration of the search engine operator’s freedom of occupation under Article 12 of the Basic Law lead to a different result within the framework of the necessary weighing of interests. The display of the search result and the information that can be called up touched the complainant’s privacy, since in particular the reference to the rating “nasty” indicated an unpleasant, deceitful, repulsive character for the average Internet user. In this respect, it was understandable that the search result also had an impact on the complainant’s private life and was not limited to her professional activity. The claim for cancellation under § 35.2 sentence 2 of the Federal Data Protection Act in the version applicable until 24 May 2018 (Federal Data Protection Act, old version), which was a protective law within the meaning of § 823.2 of the Civil Code, had to be enforced here. With reference to the judgment of the European Court of Justice Google Spain (ECJ, judgment of 13 May 2014, C-131/12, EU:C:2014:317), in which the Court of Justice, by interpreting Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31 et seq.(hereinafter: DSRL 95/46/EC) and Article 7, Article 8 of the Charter of Fundamental Rights of the European Union (GRCh) concerning the deletion of information due to a longer period of time (so-called “right to be forgotten”), the “period of good conduct” must be assumed in this case to be based on the residual debt discharge pursuant to sections 286 et seq. of the Insolvency Code (Insolvenzordnung – InsO), which is six years. Since more than six years had passed since the interview given by the complainant, and since the information at that time had not gained any new relevance during this period, the complainant’s application was to be granted.

3. Following the search engine operator’s appeal, the Higher Regional Court dismissed the action by judgment of 29 December 2016, which was challenged by the complainant. The complainant could not claim the removal of the link to the transcript of the television programme or the omission of the forwarding to this link (hereinafter also: listing) either from § 35.2 sentence 2 of the old version of the Federal Data Protection Act (BDSG) or from § 823.1, § 1004 of the Civil Code in conjunction with Article 1.1, Article 2.1 of the Basic Law.

a) The complainant’s right to be listed did not arise from § 35.2 sentence 2 of the old version of the Federal Data Protection Act (BDSG), taking into account the case-law
of the European Court of Justice on Article 12 letter b of DSRL 95/46/EC. The storage
of the link in dispute was permissible. This resulted from § 29.1 sentence 1 no. 2 of

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the old version of the BDSG, because the data came from generally accessible sources – in this case, the publicly accessible archive of the Norddeutscher Rundfunk – and the complainant’s interest, which was worthy of protection, in excluding the storage did not obviously outweigh it.

It is true that the search engine operator cannot itself invoke the freedom of the press and freedom of opinion and thus also not the media privilege of Section 41 BDSG (old version), because the mere automatic listing of external editorial contributions does not yet represent its own journalistic and editorial design. However, if the search engine operator links to a permissibly published press article, the freedom of the press and freedom of opinion of the person responsible for the content of the article must also be taken into account in the weighing process, in addition to his own professional freedom and the freedom of information of the Internet user. On the part of the persons concerned, a possible violation of the general right of personality under Article 1.1, Article 2.1 of the Basic Law (Article 7, Article 8 of the Basic Law) was to be taken into account. There was no apparent predominance of the complainant’s interests to be found here, and the present case was certainly not an abuse. The complainant was not affected in her private sphere, but only in her social sphere, namely in her function as managing director. It was in this capacity that she gave the interview. The mere fact that a “Google search” using the complainant’s name led to the link in question did not make it a matter of her privacy. The name of a person was not in itself a private matter, but could only concern the business or public appearance of the person. The impairments of her private life alleged by the complainant as a result of the television programme were merely indirect effects of the encroachment on her social sphere. The adjective “nasty” used did not refer to the complainant’s person, but to the alleged tricks in the course of business.

The complainant had also agreed to the “Panorama” interview and had thus, at least implicitly, given its consent to its dissemination. The article linked by Google concerned a topic of general interest, namely the practical effectiveness of the protection against unfair dismissal, the discussion and evaluation of which were covered by the freedom of opinion and press freedom of the Norddeutscher Rundfunk and therefore particularly affected the freedom of information of search engine users. The assessment of the employers’ conduct as “nasty tricks” constituted a permissible expression of opinion. There was a long-standing public interest in being informed about the events that were the subject of the television report. This commendable interest of the public also includes the possibility of researching past historical events. The media, in exercising their freedom of opinion, also fulfilled their task of informing the public and participating in the democratic decision-making process by keeping outdated publications available to interested media users. Whether the statements of the former employee in the “Panorama” article were true could remain open. What was decisive was that the statements of the complainant herself, who had taken a stand on the allegations in front of the camera, were indisputably correctly reproduced.

According to the applicant, the present case is fundamentally different from the facts 11 on which the decision of the Court of Justice in Google Spain was based: The

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appellant has deliberately made public the fact that there is still a general interest in the content of the television programme, that the link at issue concerns the appellant as a manager and that only seven years have passed since the television programme was broadcast. The Regional Court’s recourse to the “period of good conduct” of the Insolvency Act was not convincing because a connection with the assessment of data protection provisions and violations of the right of personality was not apparent.

b) Nor did the complainant’s right to be listed follow from § 823.1 and § 1004 of the Civil Code in conjunction with Article 1.1 and Article 2.1 of the Basic Law. For even when examining a claim in tort, a weighing of goods and interests would have to be carried out that led to the same result as the application of the provisions of data protection law, taking into account the case-law of the European Court of Justice.

4. In her constitutional complaint, the complainant complains of 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 Basic Law).

Even the title of the search result (“The employers’ nasty tricks”) was a misrepresentation, since she had never used “nasty tricks” on employees and the “Panorama” article was based on false statements of facts by the former employee. The search result and the linked contribution gave rise to an extremely negative image of her

as a person because of the association between the complainant’s name and the title of the television programme. This was also likely to degrade the complainant as a private person.

The encroachment on her general right of personality and her fundamental right to informational self-determination in the judgment under appeal was not justified. The Higher Regional Court had wrongly considered the interests of the search engine operator and the information interests of the Internet users to have priority. The Higher Regional Court had not taken sufficient account in its consideration of the fact that the complainant had had no chance to establish any private relationships whatsoever since the “Panorama” article was linked, and that people had turned their backs on her both professionally and privately. She was threatened with permanent stigmatisation. The fact that she gave the interview in her function as managing director and impliedly agreed to its publication is not convincing. For this only included the content of the interview, but not the publication under this heading, and certainly not the fact that this formulation appeared as the first search hit when her name was entered in the search engine. The search result affected her privacy by suggesting negative character traits.

The complainant’s right of personality also took precedence, since users of the search engine who entered the complainant’s name were interested in information about the private individual. Anyone interested in labour law issues and professional information about the complainant would, in addition to the complainant’s name, enter further information such as the name of the company run by the complainant. The search result for the “Panorama” contribution displayed when the complainant’s name was entered was also out of the users’ interest in information because the individual case was no longer topical. Moreover, it was sufficient for the satisfaction of the users’ interests in information if the contribution in dispute could still only be accessed if further search terms such as “termination” or “tricks” were entered in addition to the complainant’s

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name. Moreover, according to the current case-law of the European Court of Justice, even factually correct data could become unlawful over time if they were no longer relevant in view of the passage of time and the circumstances of individual cases. This is the case here, as the interview had already taken place more than seven years before the challenged decision was taken. In view of the lack of clear reference values for periods of time after the expiry of which forgetting was to occur, the legal concept contained in the provision of § 35.2 sentence 2 no. 4 of the old version of the Federal Data Protection Act (BDSG), according to which after the expiry of three or four years, it is to be examined whether longer storage is still necessary, could be used as an orientation. In the case of particularly sensitive information – as in this case – it is advisable to be able to have information deleted at the latest after the expiry of this period. The “period of good conduct” of six years under the Insolvency Code used by the Regional Court was also a justifiable criterion. Due to the concluded labor court proceedings regarding the dismissal of the former employee, the facts of the case were no longer relevant to the public at the time of the Higher Regional Court’s decision. There was also no increased public interest in the complainant’s person; she only appeared occasionally in a sector-specific context.

In addition, the European Court of Justice had decided that the general right of personality of the persons concerned in principle prevailed over the interests of Internet users and that this principle could only be deviated from in special cases, taking into account the nature of the information concerned, the sensitivity of the interference with the private life of the person concerned and the public interest in access to the information, depending on the role played by the public figure. The Oberlandesgericht had also failed to take account of this.

5. The legal background to the procedure is provided by provisions of Union law. At the time of the contested decision, the Data Protection Directive 95/46/EC, which obliged Member States to ensure the protection of the privacy of natural persons with regard to the processing of personal data, was applicable. Since 25 May 2018, the Directive has been replaced by the Basic Regulation on data protection (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC, OJ L 119 of 4 May 2016, p. 1; hereinafter referred to as the ‘Regulation’): DSGVO). In its Article 17, the Data Protection Basic Regulation now contains a right of deletion, which is also referred to in brackets as the “right to be forgotten”.

II. The Federal Government, the Federal Court of Justice, the Federal Commissioner for Data Protection and Freedom of Information, the Hamburg Commissioner for Data Protection and Freedom of Information as well as Google LLC as the defendant and Norddeutscher Rundfunk have commented on the constitutional complaint.

1. In its opinion, the Federal Government points out that circumstances argue that the 20 Higher Regional Court should have referred the matter to the European Court of Justice for a preliminary ruling under Article 267 TFEU. The question of whether the national provision that is decisive in the dispute (§ 35.2 sentence 2 no. 1 in conjunction with § 29.1 sentence 1 no. 2 of the old version of the Federal Data Protection Act) is determined under Union law by the Data Protection Directive 95/46/EC or is within the scope of a national scope of action was obviously not even asked by the Higher Regional Court.

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However, it depends on this whether the fundamental rights of the Charter or the national fundamental rights apply.

In so far as the Charter of Fundamental Rights of the European Union is applicable, the wording chosen by the Court of Justice in the Google Spain decision, namely that the rights of the data subject protected by Articles 7 and 8 of the ECHR generally prevail over the interests of internet users, cannot be generalised beyond the case decided at that time. Such a predisposition to data protection instead of an open weighing of fundamental rights would be in marked contrast to the case law of the Federal Constitutional Court, but also of the European Court of Human Rights and the European Court of Justice itself. The facts of the case decided by the Higher Regional Court and the facts underlying the European Court of Justice’s Google Spain decision showed factual differences. Furthermore, it was necessary to consider the extent to which media freedoms should be taken into account in such cases.

2. According to the Federal Commissioner for Data Protection and Freedom of Information, in order to effectively exercise personal rights, it must be possible to make direct claims against a search engine operator in addition to the person responsible for the content of the linked article, without the person concerned having to first contact the content provider. Within the framework of the weighing up of interests, the search engine operator could not itself invoke freedom of the press and freedom of expression, but the interests of the public in free and comprehensive access to information had to be discontinued. In this context, claims for protection against the search engine operator and the content provider did not necessarily have to lead to the same result.

3. The Hamburg Commissioner for Data Protection and Freedom of Information emphasises that the challenged judgment of the Higher Regional Court does not contradict the case law of the European Court of Justice and that a violation of specific constitutional law is not evident. He added that, in the context of balancing rights and interests worthy of protection, the freedom of the press and freedom of expression of the content provider as well as the freedom of opinion and information of the users of the Internet search engine had also been correctly taken into account.

4. Google LLC, as defendant, points out that the present case differs in essential respects from that on which the European Court of Justice based its Google Spain decision. In the present case, it should be noted, in particular, that the processing of personal data is part of television broadcasting which is privileged under data protection law. Further differences were that the complainant’s private life, which was covered by Article 7 of the Basic Law, was not affected, that there was still a public interest in the topic of the “Panorama” contribution and that there was no comparable timing. Furthermore, the Google Spain decision did not imply a general primacy of the rights to privacy and data protection over the freedoms of communication.

Both the Data Protection Directive 95/46/EC and the Basic Regulation on data protection provide for a national margin of manoeuvre for implementation. Because of their importance for the freedom of opinion and information of Internet users, content providers and website operators, search engines fall within the scope of application of Articles 17(3) and 85(1) DPA. This scope for implementation was to be filled in

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accordance with the fundamental rights of the Basic Law. The decision-making competence of the Federal Constitutional Court is not in question in this respect.

Furthermore, although data protection law claims could coexist both against the operator of a website and the operator of a search engine if they each process personal data as a responsible body, only a subsidiary claim against search engine operators would regularly comply with the proportionality principle. The action against the operator of the website is more effective, since the corresponding content is no longer accessible on the Internet as a whole due to its removal and is not merely prevented from being found. The website operator could also remove only parts of the contribution, whereas the search engine operator would have to remove the link to the entire contribution. Furthermore, in the case of facts of a legal nature such as the present case, a complex assessment had to be carried out which had to take into account all aspects of the individual case; this weighing up could not be carried out in the relationship between the person concerned and the search engine operator, since the search engine operator was regularly unable to assess the opposing rights and interests due to a lack of knowledge of the context and the accompanying circumstances. There was also the danger that the media freedoms would be considerably curtailed.

The challenged judgment of the Higher Regional Court did not violate the complainant’s fundamental right under Article 2.1 in conjunction with Article 1.1 of the Basic Law. The Higher Regional Court had correctly recognised that the freedom of opinion and press freedom of Norddeutscher Rundfunk had to be weighed up. The freedom of information of Internet users and the economic freedom of activity of the search engine operator also had to be taken into account. The Higher Regional Court merely failed to recognise that the defendant itself could directly invoke the freedom of opinion protected by Article 5.1 sentence 1 of the Basic Law. Search engines were important for the access, use and communication of information on the Internet. If the search engine operator could not fend off interventions by German state authorities, the process of forming opinions on the Internet would be insufficiently protected for users in Germany.

5. In the opinion of Norddeutscher Rundfunk, the reporting in the programme “Panorama” was lawful. It had been reported truthfully and the complainant had consented to the distribution of the interview. In addition, the Regional Court of Hamburg and the Hanseatic Higher Regional Court of Hamburg had dismissed actions for injunctive relief brought by the company managed by the complainant, which were intended to prohibit the company from distributing an assertion made by the dismissed employee in the “Panorama” report and the corresponding interview with the complainant.

B. The constitutional complaint is admissible.

I. 1. The constitutional complaint with which the complainant challenges the civil judgment of the Higher Regional Court dismissing the action is admissible as a constitutional complaint under § 90.1 of the Federal Constitutional Court Act. The legal remedy has been exhausted; no appeal against the challenged decision has been lodged. Nor did the complainant have to take any further action to avert the violation of the fundamental right complained of after the extended requirements of substantive subsidiarity (see on

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this BVerfGE 107, 395 <414>; 112, 50 <60>; 146, 294 <308 marginal no. 23>). In particular, before taking recourse to the defendant search engine operator, it did not first have to request Norddeutscher Rundfunk, as the content provider, to refrain from distributing the disputed transcript of the “Panorama” contribution. The provision of the contribution on the Internet by the content provider and its verification by the search engine operator constitute two different measures which, as separate data processing measures, must each be assessed separately in terms of fundamental rights (see ECJ, judgment of 13 May 2014, Google Spain, C-131/12, EU:C:2014:317, nos. 35 et seq. and 83 et seq.; judgment of 24 September 2019, GC et al, C-136/17, EU:C:2019:773, marginal 36 f.; judgment of 24 September 2019, Google [Portée territoriale], C-507/17, EU:C:2019:772, marginal 44; see also BGHZ 217, 350 <368 f. marginal no. 45>). In this respect, in any event, there is no fundamental relationship of priority that would lead to those affected having to accept a violation of fundamental rights in constitutional proceedings because they could instead take action against another. Under the concrete circumstances, it is also not apparent that the complainant could have achieved her request for protection more easily in this case.

2. The constitutional complaint is not devoid of the need for legal protection. It is true that the defendant search engine operator has temporarily removed the objectionable link for the area of the European Union. However, in doing so, it initially only reacted to its defeat in the first instance and accordingly declared in the appeal proceedings before the Higher Regional Court that the link had only been removed temporarily. Furthermore, in his opinion on this case, he also emphatically defended his right to the provision of the evidence. It is thus evident that the defendant reserves the right to discontinue the evidence again and that this can be expected after the conclusion of the constitutional complaint proceedings, which was unsuccessful for the complainant.

II. The complainant has the right of appeal. It is true that the fundamental rights of the Basic Law are not applicable in the present case because the dispute in the main proceedings concerns a matter that is completely unified in Union law. However, the complainant may invoke the fundamental rights of the Charter of Fundamental Rights of the European Union. In the constellation to be assessed here, their application is subject to the jurisdiction of the Federal Constitutional Court.

1. The dispute is governed by rules which are fully harmonised by Union law and whose application is therefore in principle governed solely by the Charter of Fundamental Rights of the European Union.

a) The claim for listing pursued by the complainant in the main proceedings concerns issues of data protection law which has been conclusively harmonised throughout the Union. This applies both to the legal situation relevant at the time of the contested decision and to the present legal situation.

aa) At the time of the Higher Regional Court’s decision, the legal dispute was based on German legal provisions that implement final and mandatory provisions of the Data Protection Directive 95/46/EC.

(1) The question of what personal data a search engine may reveal in search queries by providing a link fell within the scope of the Data Protection Directive 95/46/EC and was further specified there (see Articles 2, 4, 6, 7, 12

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and 14 DSRL 95/46/EC; see ECJ, judgment of 13 May 2014, Google Spain, C- 131/12, EU:C:2014:317, nos. 28, 41, 73 et seq.) Nor did it lie in the area of the so-called media privilege, for the structuring of which the Member States were granted leeway under Article 9 DSRL 95/46/EC, with the exception of the requirements of the Directive (different from the constellation on which today’s decision of the First Senate – 1 BvR 16/13 – is based). The data processing by the search engine operator in question in this respect is not to be regarded as data processing for journalistic purposes within the meaning of this provision (see ECJ, judgment of 13 May 2014, Google Spain, C-131/12, EU:C:2014:317, para. 85).

(2) The substantive requirements of the Directive on protection against the processing of personal data thus apply. These are to be regarded – at least in the light of subsequent legal developments – as fully harmonised under Union law at the time of the decision of the Higher Regional Court.

However, the first argument against this seems to be that these requirements result from a directive alone. As a rule, it can be assumed that the European Union, by choosing the directive as a legal form, does not aim at a complete unification of a regulatory subject matter, but leaves the Member States scope for design. This is already supported by Article 288(3) TFEU, according to which the directive leaves to the Member States the choice of form and methods for achieving binding objectives, and its distinction from the regulation under Article 288(2) TFEU. This is also supported by the principle of subsidiarity under Article 5(3) TEU. Of course, the question of how far the mandatory character of a directive extends ultimately depends on its specific content. This also includes the possibility that a directive may completely unify certain issues (see ECJ, judgment of 25 April 2002, Commission v France, C-52/00, EU:C:2002:252, marginal no. 16 et seq. January 2012, Dominguez, C-282/10, EU:C:2012:33, marginal 33 ff.; judgment of 21 November 2018, Ayubi, C-713/17, EU:C:2018:929, marginal 37 ff.; judgment of 29 July 2019, Funke Medien NRW, C-469/17, EU:C:2019:623, marginal 35 ff.; judgment of 29 July 2019, Pelham and others, C-476/17, EU:C:2019:624, marginal no. 58 ff.; see also BVerfGE 118, 79 <95 f.>).

The European Court of Justice has consistently held that this is the case for the substantive requirements for data processing under the Data Protection Directive 95/46/EC. Referring in particular to its recitals and regulatory objective, it assumes that the Directive is not limited to minimum harmonisation, but that it brings about a comprehensive harmonisation of national laws on the protection of personal data. The relevant provisions of Articles 6 and 7 of DSRL 95/46/EC are unconditional, exhaustive and exhaustive in content and must be applied uniformly throughout the Union. The Member States may neither exceed nor fall short of their requirements (cf. ECJ, judgment of 20 May 2003, Österreichischer Rundfunk and others, C- 465/00, C-138/01 and C-139/01, EU:C:2003:294, marginal 100; judgment of 6 November 2003, Lindqvist, C-101/01, EU:C:2003:596, marginal 95 et seq.;

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judgment of 16 December 2008, Huber, C-524/06, EU:C:2008:724, marginal 51 et seq. ASNEF and FECEMD, C-468/10 and C-469/10, EU:C:2011:777, para. 28 et seq.; judgment of 7 November 2013, IPI, C-473/12, EU:C:2013:715, para. 31; judgment of 19 October 2016, Breyer, C-582/14, EU:C:2016:779, marginal 57; judgment of 29 July 2019, Fashion ID, C-40/17, EU:C:2019:629, marginal 54 f.). Accordingly, the concept of necessity used in Article 7(e) of DSRL 95/46/EC, which requires further specification, must also be interpreted uniformly as an autonomous concept of Union law and thus cannot have a variable content (see ECJ, judgment of 16 December 2008, Huber, C-524/06, EU:C:2008:724, para. 52).

It can be left open at this point in time whether this alone is sufficient as a basis for the assumption of a completely unified legal situation, or whether it would require further safeguards in view of contrary indications in the Directive (cf. recital 9 and Art. 5 DSRL 95/46/EC). For in any case, this interpretation of the Directive by the Basic Data Protection Regulation has in the meantime also been confirmed and legally secured by the Union legislature in its political responsibility. Although the Basic Data Protection Regulation was not yet in force at the time of the challenged decision of the Higher Regional Court, it had already been finally adopted and entered into force pursuant to Article 99 (1) DSGVO. In its light, the understanding of the Directive as a “full harmonisation” of the material requirements for the processing of personal data can be regarded as sufficiently secured.

bb) A complete standardisation can be assumed all the more so for the current legal situation under the Data Protection Basic Regulation, which would also have to be observed by the Higher Regional Court in the event of a revocation and referral of the challenged decision. With it, the European Union has created directly applicable law in all Member States in the legal form of a regulation in order to counteract more effectively the remaining differences in the treatment of data protection law in the Member States and to give greater emphasis to the claim of equivalent data protection throughout the Union (see recitals 9 and 10 of the DSGVO). The Basic Regulation on data protection also contains an opening clause for the definition of the “media privilege” (Art. 85 para. 2 DPA) and also allows the Member States to create – often to be notified – selective divergent regulations in various respects. However, it is not evident that such openings are significant for the present constellation and that they break through the claim of the Regulation as a guarantee of a substantively fully harmonised level of data protection.

b) In the application of regulations that are completely unified in Union law, it is not the German fundamental rights but only the fundamental rights of the Union that are decisive; here Union law takes precedence over the fundamental rights
of the Basic Law (aa). This does not affect reserve reservations in the event of a fundamental loss of this protection (bb).

aa) The fact that German fundamental rights are not applicable in fully unified matters of Union law corresponds to settled case-law for the validity check of

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these standards (cf. BVerfGE 73, 339 <387>; 102, 147 <162 ff.>; 118, 79 <95 ff.>; 121, 1 <15>; 123, 267 <335>; 125, 260 <306 f.>; 129, 78 <103>; 129, 186 <199>). However, nothing else applies to their concrete application.

The application of the Union’s fundamental rights here is the consequence of the transfer of sovereign powers to the European Union under Article 23 (1) sentence 2 of the Basic Law. If, within the framework of these powers, the Union creates regulations which apply and are to be applied uniformly throughout the Union, the protection of fundamental rights to be guaranteed when applying these regulations must also be uniform. This protection of fundamental rights is guaranteed by the Charter of Fundamental Rights of the European Union. The German fundamental rights are not applicable in these cases because this would counteract the objective of legal standardisation. It is true that in areas that allow for diversity and are not completely unified, the fundamental rights of the Basic Law can regularly guarantee the level of protection of the fundamental rights of the Union (see BVerfG, Order of the First Senate of the same day – 1 BvR 16/13 -, marginal no. 50 et seq.) In the area of completely unified Union law, however, this co-guarantee cannot be assumed. Here, Union law requires precisely the uniform application of law. From the outset, this precludes the use of different fundamental rights standards in the Member States, because this would lead to divergent application of the unified law. At present, it cannot be assumed that there are congruent standards of fundamental rights in the European Convention on Human Rights over and above the unifying, but not unifying, common foundation. It must be taken into account here that the Charter interacts with very different legal systems, which also differ in many respects with regard to the protection of fundamental rights. This already applies to the external form and institutional integration of the protection of fundamental rights, it also applies to the requirements for restrictions on fundamental rights with regard to the weighting of public interests or the processing of conflicts of value between different fundamental rights, and finally it also applies to basic ideas as to the extent to which and to what extent judicial control is permissible or necessary on the basis of fundamental rights. This reflects the many different actual differences in the Member States and, not least, their own historical experiences.

It cannot be assumed that the Charter of Fundamental Rights, in so far as, in relation to fully unified Union law, a fundamental rights protection that is to apply in the same way in all Member States, follows precisely the Basic Law and coincides in the details with the fundamental rights protection that is set in motion here (see also BVerfG, Order of the First Senate of the same day – 1 BvR 16/13 -, marginal no. 62). This applies all the more so because the protection of fundamental rights in Germany is based on a long established, dense body of fundamental rights case-law that specifically concretises the fundamental rights for the context of the German legal system on the basis of the Federal Constitutional Court’s further powers under procedural law. An interpretation of fully unified Union law on the basis of the fundamental rights of the Basic Law would thus run the risk of rashly subjecting standards obtained domestically to

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Union law as well – with the consequence that these standards would then also be understood as standards for the other Member States.

In relation to the legal system of the Basic Law, it must therefore be assumed – irrespective of how this is to be assessed in other Member States – that fundamental rights under Union law and fundamental rights under national law
are independent of each other. The benchmark for the concrete application of fully unified Union law by national authorities and courts is the Charter of Fundamental Rights.

bb) The non-application of German fundamental rights as a control criterion is based solely on the recognition of a primacy of application of Union law (see BVerfGE 123, 267 <398 et seq.; 126, 286 <301 et seq.; 129, 78 <99 et seq. marginal no. 37 et seq.> with further references) and does not affect the validity of the fundamental rights of the Basic Law as such. They remain dormant in force behind it. Accordingly, the Federal Constitutional Court has consistently held that the primacy of Union law over the application of the Basic Law, which precludes a review of the fundamental rights of the Basic Law, is only recognised by the Federal Constitutional Court with the proviso that the protection of fundamental rights by the fundamental rights of the Union that are applied instead is sufficiently effective (see BVerfGE 73, 339 <376, 387>; 102, 147 <162 et seqq.) In that the Basic Law places the individual human being and his or her fundamental rights at the centre of its order, declares their essence and core human dignity to be inviolable (see Article 19.2, Article 79.3 of the Basic Law) and ensures this protection also with regard to the Union Treaties (see Article 23.1 sentence 3 of the Basic Law), the guarantees of fundamental rights can only be overlaid by Union law to the extent that their promise of protection is maintained in substance. It is therefore necessary that the protection of the Charter is to be respected in essentially the same way as the protection of fundamental rights that is in each case required by the Basic Law as indispensable, especially since the essential content of fundamental rights is generally guaranteed (see BVerfGE 73, 339 <376, 387>; 102, 147 <162 et seq.) In this respect, a general consideration related to the respective fundamental right of the Basic Law is decisive.

According to the current state of Union law – especially when the Charter applies – it must be assumed, in accordance with consistent case-law, that these prerequisites are in principle fulfilled (see BVerfGE 73, 339 <387>; 102, 147 <162 ff.>; 118, 79 <95 ff.>; 129, 186 <199>; stRspr). The fundamental rights of the Basic Law only have a reserve function in this respect. If this is to be activated by a constitutional complaint, this is subject to high substantiation requirements (cf. BVerfGE 102, 147 <164>).

The further reservations of ultra vires control and the preservation of constitutional identity (cf. BVerfGE 123, 267 <353 f.>; 126, 286 <302 f.>; 134, 366 <382 ff. margin no. 22 et seq.; 140, 317 <336 et seq. marginals 42 et seq.; 142, 123 <194 et seq. marginals 136 et seq.; 146, 216 <252 et seq. marginal 52 et seq.;

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BVerfG, judgment of the Second Senate of 30 July 2019 – 2 BvR 1685/14 and others -, marginal 120 et seq.) are not affected by the present proceedings.

2. Insofar as the fundamental rights of the Basic Law are superseded by the primacy of Union law, the Federal Constitutional Court monitors its application by German authorities on the basis of the Union fundamental rights (cf. on the constitutional court’s review on the basis of the Charter of Fundamental Rights, Constitutional Court of Austria, decision of 14 March 2012, U 466/11 et al. 5.5; see also Constitutional Court of Belgium, decision of 15 March 2018, no. 29/2018, B.9., B.10.5., B.15. et seq.; Conseil Constitutionnel, decision of 26 July 2018, no. 2018-768 DC, marginal nos. 10, 12, 38; Corte costituzionale, decision of 23 January 2019, no. 20/2019, IT:COST:2019:20, marginal nos. 2.1, 2.3).

  1. a)  In its previous case law, the Federal Constitutional Court has not explicitly considered an examination on the basis of the Union’s fundamental rights. To the extent that it has not applied the fundamental rights under the Basic Law in recognition of the primacy of Union law, it has instead dispensed with a fundamental rights test altogether and left the control of fundamental rights to the specialised courts in cooperation with the European Court of Justice. This case-law was related to case constellations in which – directly or indirectly – the validity of Union law itself was in question. These were cases in which it had to be decided whether the Federal Constitutional Court was to review the validity either of certain decisions (see, for example, BVerfGE 129, 186 <198 f.> – Investitionszulagengesetz -) or of statutory provisions (see BVerfGE 129, 186 <198 f.> – Investitionszulagengesetz -). such as BVerfGE 73, 339 <374 et seq.> – Solange II -; 102, 147 <160 et seq.> – Banana Market Organisation -) of the Union itself or of German norms that implement binding Union law domestically (cf. Since the rejection or invalidation of Union law is reserved solely for the European Court of Justice, the Federal Constitutional Court has completely dispensed with a prior review of fundamental rights of its own. Whether and to what extent these constellations are to be adhered to is not to be decided here.In the present case, however, it is not the validity or effectiveness of Union law that is in question, but the correct application of fully unified Union law in the light of the fundamental rights of the Charter, which need to be specified in each individual case. The object of the constitutional complaint is the review of a decision of a German specialised court as to whether, in the application of Union law incumbent upon it, it has satisfied the requirements of the Charter to be observed in this connection. In any event, in such cases, the Federal Constitutional Court cannot withdraw from the examination of fundamental rights, but it is one of its tasks to guarantee the protection of fundamental rights in accordance with the standard of the fundamental rights of the Union.
  2. b)  The Federal Constitutional Court’s competence to review fundamental rights of the Union follows here from Article 23.1 of the Basic Law in conjunction with the provisions of the Basic Law on the tasks of the Federal Constitutional Court in the area of the protection of fundamental rights. In accordance with its task of providing comprehensive protection of fundamental rights vis-à-vis the German

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state authority, the Federal Constitutional Court assumes its responsibility for integration in the area of the application of completely unified Union law pursuant to Article 23.1 sentence 1 of the Basic Law by examining the rights of the Charter of Fundamental Rights of the European Union in the procedure of the constitutional complaint pursuant to Article 93.1 no. 4a of the Basic Law.

aa) According to Article 23 (1) of the Basic Law, the Federal Republic of Germany participates in the realization of a united Europe and may transfer sovereign rights to the Union for this purpose. Together with the other Member States, the Federal Republic of the European Union has, by means of the Union Treaties, conferred powers on the European Union to adopt its own legal acts. The Member States have also jointly created the Charter of Fundamental Rights, which accompanies Union law and the powers granted by it. On this basis, the laws approving the Union Treaties open up the German legal system to Union law and recognise the German legal system as directly effective domestic law. In this respect, it also fundamentally respects the right of Union law to take precedence over domestic law, including German constitutional law (see BVerfGE 129, 78 <100>; 142, 123 <187 marginal no. 118> with further references).

The opening of the Basic Law to Union law, as provided for in Article 23.1 of the Basic Law, does not mean that the German state authority withdraws from responsibility for the matters assigned to the Union, but rather that the Federal Republic participates in their development. This refers to a closely interwoven cooperation of the decision-makers, in accordance with the content of the Union Treaties. Accordingly, the implementation of Union law is only to a limited extent the responsibility of the institutions of the European Union directly themselves, but to a large extent that of the Member States. Domestically, Union law is generally applied in accordance with the fundamental organisation of the state under the Basic Law. For the participation of the Federal Republic of Germany in the European Union, all state organs also bear responsibility for integration in this sense (see also BVerfGE 123, 267 <356>; 142, 123 <180 marginal no. 98>; BVerfG, Judgment of the Second Senate of 30 July 2019 – 2 BvR 1685/14 and others -, marginal no. 141 et seq.) According to general rules, in particular the domestic parliaments, whether at federal or Land level, the federal or Land governments as well as the public administration according to the provisions of the federal state organisation are responsible for this.

Nothing else applies to the courts. Directly applicable Union law and national law transposing it must be applied by the courts having jurisdiction under the general constitution of the courts in accordance with the rules of the respective procedural codes, irrespective of whether they are directly applicable provisions of Union law itself or national law enacted under Union law.

bb) According to that provision, it is incumbent on the Federal Constitutional Court, in its review of the case-law of the non-constitutional courts, to include, if necessary, the fundamental rights of the Union in its standard of review.

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  1. (1)  Ensuring effective protection of fundamental rights is one of the central tasks of the Federal Constitutional Court. This is expressed above all in the constitutional complaint as the type of procedure that particularly shapes
    the work of the court. The constitutional complaint is deliberately broad and comprehensive: Under Article 93.1 no. 4a of the Basic Law, any person who claims that his or her fundamental rights have been violated is entitled and authorised to lodge a complaint, and any act of public authority may be the subject of a constitutional complaint. In accordance with the claim, the constitutional complaint thus offers comprehensive protection of fundamental rights vis-à-vis the entire German state authority in all its manifestations.
  2. (2)  Today, the Union’s fundamental rights are also part of the protection of fundamental rights that is to be enforced vis-à-vis the German state. In accordance with Article 51.1 of the Basic Law, they are applicable at the national level and constitute a functional equivalent to the fundamental rights of the Basic Law. Embedded in an elaborated catalogue of fundamental rights, they have a function largely identical to that of the German fundamental rights for law under the Basic Law in terms of their content and normative claim for Union law and its interpretation today: In their scope of application, they serve to protect the freedom and equality of citizens and claim – if necessary, also to be enforced in court – priority over any kind of Union law action, irrespective of its legal form and the body responsible for it. Already after its preamble, the Charter places itself in the tradition of inviolable and inalienable human rights and, accordingly, its interpretation in Article 52, Article 53 GRCh binds it to the European Convention on Human Rights. It thus refers to the same tradition in which Article 1.2 of the Basic Law also places the fundamental rights of the Basic Law.
  3. (3)  Without the inclusion of the fundamental rights of the Union in the Federal Constitutional Court’s review standard, the protection of fundamental rights against the application of law by the non-constitutional courts would remain incomplete under the current state of Union law. This applies in particular to regulatory matters that are completely unified by Union law. Since the application of German fundamental rights is fundamentally ruled out here, constitutional protection of fundamental rights is only guaranteed if the Federal Constitutional Court takes the fundamental rights of the Union as the standard for reviewing the application of law by non-constitutional courts. If it were to withdraw from the protection of fundamental rights in this case, it could perform this task less and less as Union law became more and more dense. Accordingly, complete protection of fundamental rights also requires consideration of the fundamental rights of the Union if the level of protection of the Charter outside of fully unified regulatory matters makes exceptional demands that do not cover the fundamental rights under the Basic Law (see BVerfG, Order of the First Senate of the same day – 1 BvR 16/13 -, marginal no. 67 et seq.)

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Nor is the protection gap regarding the judicial application of Union fundamental rights in specialised courts closed by appropriate remedies at the level of Union law. There is no possibility for individuals to bring an action directly before the European Court of Justice against the violation of Union fundamental rights by the specialised courts of the Member States.

(4) The extension of the constitutional review to the fundamental rights of the Union is also not superfluous because, when applying Union law, the specialised courts already have to guarantee the protection of fundamental rights under Union law. For an effective exercise of the functions of the Federal Constitutional Court, as provided for by the Basic Law, requires that the Federal Constitutional Court can also exercise its fundamental-rights- specific control function vis-à-vis the non-constitutional courts.

  1. a)  The constitutional complaint deliberately supplements the specialised legal protection by the specialised courts with a separate constitutional review. It is intended to open up an additional, nationwide control of the specialised courts that specialises in the fundamental rights perspective, in order to ensure the specific weight of fundamental rights compared with ordinary law and to provide citizens with special protection in this respect. If today the protection of fundamental rights under constitutional law is partly overridden by the primacy of Union law, there is no reason to deny citizens this legal remedy. As a consequence of the participation of the Federal Republic of Germany, and hence also of the Federal Constitutional Court, in the development of the European Union, as provided for in Article 23.1 sentence 1 of the Basic Law, it is rather a question of extending this remedy to the enforcement of the fundamental rights of the Union. Otherwise, it would not be possible to monitor the application of the law by non-constitutional courts as to its compatibility with fundamental rights beyond Article 267 TFEU.
  2. b)  In this respect, it is also not sufficient to examine the non-constitutional courts from the perspective of the guarantee of the statutory judge (Article 101.1 sentence 2 of the Basic Law; see BVerfGE 147, 364 <378 f. marginal no. 37> loc. cit.; BVerfG, judgment of the First Senate of 18 July 2018 – 1 BvR 1675/16 and others -, marginal no. 138 loc. cit. For the constitutional complaint promises a comprehensive review of fundamental rights, which also includes the correct application of fundamental rights in individual cases. In this respect, however, the fundamental rights responsibility of the non-constitutional courts is not limited to compliance with the obligation to refer and thus to the assurance of the principles of interpretation to be taken as a basis under Union law. Rather, they are left with the task of applying them in individual cases, even where the interpretation of fundamental rights has been clarified. When applying specialist law in the light of fundamental rights, they must as a rule – as in the dispute in the present proceedings – seek a balance of fundamental rights positions, which requires a

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weighing of the respective concrete circumstances and is different in each case.

In such a concrete application, the specialised courts have their own responsibility, which cannot be shifted to the European Court of Justice by means of referrals. Rather, the Court of Justice translates its interpretation of fundamental rights into general principles that need to be applied and, conversely, expects the courts of the Member States to implement them – also in other cases – in an understanding manner and to give them concrete form. In doing so, it leaves them in part considerable scope for concretisation (see only ECJ, judgment of 6 November 2003, Lindqvist, C-101/01, EU:C:2003:596, marginal no. 86 et seq, 90; judgment of 9 March 2017, Manni, C-398/15, EU:C:2017:197, marginal 62 et seq.; judgment of 27 September 2017, Puškár, C-73/16, EU:C:2017:725, marginal 72; see also judgment of 19 October 2016, Breyer, C-582/14, EU:C:2016:779, marginal 62). In relation to fully unified Union law, this does not imply the recognition of a free space for Member State diversity. Rather, the Court of Justice thereby takes account of the fact that fundamental rights can only develop their individual-protective power where the application of law is in the spirit of uniformity and uniformity throughout the Union if they are specified in concrete terms on a case-by-case basis in the respective case. This is the task of the specialised courts of the Member States.

As the guarantor of a comprehensive domestic protection of fundamental rights, the Federal Constitutional Court has to monitor the specialised courts in this respect. This, however, requires control not only
by the standard of Article 101.1 sentence 2 of the Basic Law, but also the inclusion of the fundamental rights of the Union itself in its standard of review.

(5) Nor does the wording of the Constitution prohibit such an inclusion of the Union’s fundamental rights, in particular Article 93.1 No. 4a of the Basic Law. Admittedly, despite its open formulation, this provision, from its history of origin, only takes account of the fundamental rights of the Basic Law. However, it follows at the same time from the Federal Constitutional Court’s involvement in the application of Union law in the context of the associated responsibility for integration that it is charged with under Article 23.1 sentence 1 of the Basic Law that Article 93.1 no. 4a of the Basic Law applies accordingly to complaints of a violation of the rights of the Charter of Fundamental Rights of the European Union. Insofar as the Senate has, in earlier decisions – in any case, in a specific context not related to the Charter – generalised that rights based on Community law are not among the fundamental rights that, according to Article 93.1 no. 4a of the Basic Law, § 90.1 of the Basic Law, and § 90.1 no. 4a of the Basic Law, are to be applied to complaints of a violation of rights of the Charter of Fundamental Rights of the European Union, the Senate has to take into account the fact that these rights do not belong to the fundamental rights of the European Union. 1 of

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the BVerfGG that can be defended by means of a constitutional complaint (cf. BVerfGE 110, 141 <154 f.>; 115, 276 <299 f.>), this is not maintained to the extent developed above (marginal no. 60) with regard to the domestic application of the fundamental rights of the Union. In this context, the review on the basis of the fundamental rights of the Union can also be carried out without difficulty on the basis of the applicable procedural law (cf. §§ 90 et seq. of the BVerfGG).

3. To the extent that the Federal Constitutional Court applies the fundamental rights of the Charter of Fundamental Rights as a standard of review, it exercises its control in close cooperation with the European Court of Justice.

a) According to Art. 19 (1) UA 1 sentence 2 TEU, Art. 267 TFEU, the competence for the ultimate binding interpretation of Union law lies with the European Court of Justice. This includes the interpretation of the fundamental rights of the Charter and the development of the principles derived from them for their application. In contrast, the Federal Constitutional Court’s competence to review concerns the correct application of the fundamental rights of the Union. In this respect, it is the final instance of decision within the meaning of Article 267.3 TFEU and is therefore obliged to make a submission if necessary (see ECJ, judgment of 6 October 1982, Cilfit, C-283/81, EU:C:1982:335, marginal no. 21).

The application of the Union’s fundamental rights can therefore only be considered if the European Court of Justice has already clarified their interpretation or if the principles of interpretation to be applied are obvious in themselves – for example, on the basis of the case-law of the European Court of Human Rights, which also determines the content of the Charter in the individual case (cf.) Otherwise, the questions must be referred to the European Court of Justice. Since the questions of interpretation are in principle directly relevant to the decision in this case, submissions will have to be considered to a much greater extent than in cases in which the Charter is also applicable in addition to the Basic Law (see BVerfG, Order of the First Senate of the same day – 1 BvR 16/13 -, marginal no. 43 et seq.), but the Federal Constitutional Court – as before – exercises its control on the basis of the German fundamental rights (see loc. cit., marginal no. 45 et seq., 154).

Recourse to national case-law on German fundamental rights cannot, in principle, remove ambiguities. It is true that the protection of fundamental rights under the Basic Law and that of the Charter often coincide and that principles of interpretation may be transferable from one system to another. However, caution is called for here in view of the unity of Union law. In principle, the interpretation must be based directly on the fundamental rights of the Charter itself and the case law of the European courts and is linked back to the understanding of fundamental rights in the Member States of the Union as a whole. An essential indication of an obligation to refer is, in particular, if the legal practice of the Member States expresses different understandings of the fundamental rights of the Union that go beyond the individual case. Before claiming the unity of Union law, it is the task of the European Court of Justice to clarify such differences – just as the Court of Justice must also otherwise be

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referred to in the event of doubts about the interpretation of the Union’s fundamental rights prior to their application in accordance with Article 267 (3) TFEU.

b) It is irrelevant whether, in so far as the Federal Constitutional Court, as the final 72 instance of decision within the meaning of Article 267.3 TFEU, is obliged to refer the matter to the Federal Constitutional Court, the corresponding obligation of
the non-constitutional courts to refer the matter to the Federal Constitutional Court ceases to apply or whether it must be maintained that the non- constitutional courts, in so far as they decide in the non-constitutional courts of last instance, also remain obliged to refer questions concerning the application of the fundamental rights of the Union (cf. BVerfGE 147, 364 <378 et seqq.)

If such an obligation to refer is maintained, two courts could be regarded as co-existing and simultaneously as courts of last instance within the meaning of Article 267(3) TFEU. However, this is not obvious for the coexistence of constitutional jurisdiction and non-constitutional jurisdiction (see Constitutional Court of Austria, decision of 14 March 2012, U 466/11 et al., AT:VFGH:2012:U466.2011, sub. 5.7, which, where appropriate, considers itself alone to be obliged to submit a case; confirming ECJ, judgment of 11 September 2014, A, C-112/13, EU:C:2014:2195, marginal 39 et seq., 46). However, in view of the special features of the constitutional complaint as an extraordinary legal remedy, it is not excluded that the specialised court of last instance may also be qualified nationally as a fundamentally conclusive instance for the interpretation of the Union’s fundamental rights.

According to the current state of case-law, the Federal Constitutional Court can, in the case of doubts of interpretation justified by fundamental Union law, continue to measure the handling of the obligation to refer under Article 267.3 TFEU by the specialised court of last instance by reference to the withdrawn standard of justiciability of Article 101.1 sentence 2 of the Basic Law (see BVerfGE 147, 364 <380 et seq.) If there is no violation of the second sentence of Article 101.1 of the Basic Law, it will moreover examine the compatibility of the interpretation of Union law by the non-constitutional courts with the Charter of Fundamental Rights and, if necessary, itself submit the matter to the European Court of Justice under Article 267.3 TFEU because of the interpretation of the fundamental rights of the Union.

The obligation of the non-constitutional courts and their control over Article 101 75 (1) sentence 2 of the Basic Law for constellations in which the question of the content of the fundamental rights of the Charter itself is not at issue remains unaffected from the outset. Thus, insofar as the interpretation of Union law is in question independently of the rights of the Charter, only the non-constitutional courts are called upon to do so and, accordingly, as the ultimately deciding domestic instance, they remain obliged to refer the matter to the Court of Justice. This concerns both the interpretation of primary and secondary law of the European Union. Since the Federal Constitutional Court has no power of review in this respect, it examines in this respect only the observance of the

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guarantee of the statutory judge under Article 101.1 sentence 2 of the Basic Law that results directly from the Basic Law.

This is without prejudice to the power of the specialised courts to submit to the European Court of Justice questions of interpretation of the Charter of Fundamental Rights that are relevant to the decision in accordance with Article 267 (2) TFEU.

4. The question of whether the fundamental rights of the Basic Law or the Charter should be applied depends, as is clear from the above considerations, on a distinction between Union law which is fully unified and Union law which is open to interpretation. This may raise questions of demarcation.

  1. a)  Whether a rule is fully harmonised in Union law depends on an interpretation of the specific Union law applicable in each case. The question of the openness of the form is to be assessed in each case in relation to the provisions specifically applicable to the case in its context, but not on the basis of a general consideration of the regulatory area. Insofar as, for example, it is assumed that a particular provision of German law is determined by provisions of a directive, this does not necessarily also apply to all other provisions of the directive (see BVerfGE 183, 286 (286)). BVerfGE 142, 74 <114 marginal 119>; ECJ, judgment of 29 July 2019, Spiegel Online, C-516/17, EU:C:2019:625, marginal 28 et seq.; judgment of 29 July 2019, Funke Medien NRW, C-469/17, EU:C:2019:623, marginal 40; judgment of 29 July 2019, Pelham and others, C-476/17, EU:C:2019:624, para. 80 et seq.).This does not, however, call into question the fact that, in order to assess whether a provision is intended to be fully uniform, account must be taken of the integration of the provision into the body of rules as a whole and of the objective associated with it. It may also play a role in this respect whether the regulation is a directive or a regulation. However, no conclusive consequences can be derived from the legal form alone: Regulations, too, can use opening clauses to give the Member States room for manoeuvre, just as directives can set binding and conclusive requirements. However, a completely unified regulation can be assumed in principle if a regulation conclusively regulates a certain matter. In this context, the regulations are not open to design simply because they create the possibility of deviating regulations for narrowly defined special constellations. Such opening clauses only leave scope for design to the extent permitted in each case, but do not allow the application of the regulation as a whole to be measured against the fundamental rights of the Basic Law.
  2. b)  Whether or not there is room for manoeuvre can also not simply be decided along the distinction known in German law between undefined legal concepts and discretion, between which Union law, like the law of other Member States, does not distinguish in the same way as German law (see only Kadelbach, Allgemeines Verwaltungsrecht unter europäischem Einfluß, 1999, p. 453; see also BVerwG, judgment of 17 September 2015 – 1 C 37/14 -, NVwZ 2016, p. 161 <162 marginal no. 19>). Rather, it must be examined in relation to the respective

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norm of Union law whether it is designed to enable diversity and the assertion of different valuations, or whether it is intended to serve only to take account of particular factual circumstances in a sufficiently flexible manner, while at the same time being guided by the objective of uniform application of the law (see ECJ, judgment of 29 July 2019, Funke Medien NRW, C-469/17, EU:C:2019:623, marginal no. 40 with further references).

c) The distinction between fully unified Union law and Union law which is open to interpretation is necessary in order to decide whether the fundamental rights of the Basic Law or those of the Charter are applicable. Insofar as it is established in individual cases that the application of the various fundamental rights in a specific context does not lead to different results, the non-constitutional courts – in accordance with general procedural law – are not prevented from leaving difficult questions of delimitation regarding the scope of unification.

A non-constitutional court can ignore the significance and scope of the fundamental rights of the Basic Law by assuming that the applicable Union law leaves no scope for transposition into national law; in this respect, the Federal Constitutional Court is not limited to an arbitrary review (cf. BVerfGE 129, 78 <102 f.>).

5. The complainant’s right of appeal must be based on a possible violation of Art. 7 and 83 Art. 8 GRCh. In her submission, she has sufficiently demonstrated that the contested decision may have infringed her fundamental rights to respect for private and family life and to the protection of personal data under these provisions.

In her constitutional complaint, the complainant invokes a violation of her right to the development of her personality, while disputing the challenged decision. She substantiated her claim that she was impaired in the shaping of her social contacts deep into her private life by the provision of the disputed link by the defendant search engine operator in name-related search queries. In doing so, she is challenging a violation of her fundamental rights to respect for private and family life and to the protection of personal data under Articles 7 and 8 of the Basic Law. If only the wrong norm is named but substantiated in the matter, the constitutional complaint is not inadmissible. The correct application of the law is rather the task of the Federal Constitutional Court.

III. A decision of the plenum pursuant to § 16 BVerfGG is not required.

1. The plenum must be called upon if one Senate wishes to deviate from an opinion of the other Senate that was the basis for the decision of the other Senate (cf. BVerfGE 4, 27 <28>; 77, 84 <104>; 96, 375 <404>; 112, 1 <23>; 112, 50 <63>; 132, 1 <3 marginal no. 10>; stRspr.) According to the case-law of the plenum of the Federal Constitutional Court, such a deviation can also exist if the fundamental legal opinion has not been expressly expressed, but it is unspokenly based on the decision of a senate and if this decision, when thought through to the end, is not compatible with a view held by the other senate (cf. BVerfGE 4, 27 <28>).

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2. According to this, the Senate, in using the Charter of Fundamental Rights of the European Union as a standard for examining the constitutional complaint lodged against the judgment of the Higher Regional Court, does not deviate from the legal opinions supporting the decisions of the Second Senate.

  1. a)  In the extension of the Federal Constitutional Court’s review competence to the 88 fundamental rights of the Union, there is no deviation from the case-law of both Senates based on the so-called Solange II decision of the Second Senate (BVerfGE
    73, 339) (cf. BVerfGE 73, 339 <387>; 102, 147 <164>; 118, 79 <95>; 121, 1 <15>; 123, 267 <335>; 125, 260 <306>; 129, 78 <103>; 129, 186 <199>).The subject matter of this case-law is solely whether and to what extent Union 89 law and national law that implements binding Union law must be examined against the yardstick of the Basic Law. It was clarified that this is not the case in principle under Union law, but that reservations must be made for special situations. In contrast, this case law did not consider, either explicitly or implicitly, the applicability of the Union’s fundamental rights – and even less so ofthe Charter of Fundamental Rights, which only became binding in 2009 – and made neither a positive nor a negative statement in this regard. The treatment of corresponding constitutional complaints as inadmissible was not based on an independent statement by this case law that fundamental Union rights were not applicable, but was merely a reflection of the inapplicability of the Basic Law.

    Even if one wanted to assume that this implicitly contained the statement that 90 Union fundamental rights were not applicable, that case-law, however, concerns
    a different constellation than the present decision anyway: Both the withdrawal
    of German protection of fundamental rights and the treatment of corresponding constitutional complaints as inadmissible always referred to cases in which the validity or effectiveness of Union law was at issue. The withdrawal from the examination of fundamental rights was intended to prevent binding decisions of

    the European Union being called into question on the basis of German constitutional law. The Federal Constitutional Court therefore merely expressed in each case in a manner relevant to the decision that it did not exercise its jurisdiction over the applicability of derived Community or Union law that domestic authorities and courts have used as the legal basis for their actions, and that it did not examine this law in the light of the fundamental rights of the Basic Law (see only BVerfGE 73, 339 <387>; 102, 147 <163>). By contrast, the present decision is not concerned with calling Union law into question, but with its correct application in the light of the clear or clarified content of the fundamental rights of the Union. The previous case-law of the Second Senate does not contain any statement on this, either expressly or implicitly.

  2. b)  Nothing else results from the decision of the Second Senate of 15 December 91 2015 on the European Arrest Warrant (see BVerfGE 140, 317 <334 et seqq. marginal no. 35 et seq.> – Identity Control I -). The subject of the decision was not
    the application of the fundamental rights of the Union, but the scope of the identity reservation, which is not the subject of this decision. Admittedly, the implicit legal opinion that the fundamental rights of the Union cannot be appliedby the Federal Constitutional Court may have been behind the decision. 23

However, this legal opinion was not the basis for the decision. For the Second Senate based the reversal of the original decision there on the fact that under the specific circumstances of the case there, specialised Union law did not preclude application of Article 1.1 of the Basic Law; an examination on the basis of the standard of the fundamental rights of the Union would not have changed the outcome of the decision, because Union law requirements did not fall short of the requirements of Article 1.1 of the Basic Law, which led to the reversal of the original decision of the non-constitutional court (see BVerfGE 140, 317 <342 et seq. marginal no. 51 et seq. marginal 84 ff.; 366 marginal 107 f.>).

c) There is also no deviation with regard to the decision of the Second Senate of 19 December 2017 regarding the extradition (see BVerfGE 147, 364 <378 et seq. marginal no. 35 et seq.) The decision is based primarily on an obligation of the non-constitutional courts of last instance to refer questions on the interpretation

of the fundamental rights of the Union. The present decision does not preclude the retention of this case-law (see above, marginal 72 et seq.). Nor does the inclusion of the fundamental rights of the Union in the review standards of the Federal Constitutional Court justify any deviation from this decision of the Second Senate. An examination of the case on the fundamental rights of the Union was not considered there. The non-applicability of the fundamental rights of the Union is also not an unspoken precondition (see BVerfGE 4, 27 <28>) of the Second Senate’s assumption that in the case of doubt of interpretation founded on Union fundamental rights, there could be an obligation to refer the case to the Federal Constitutional Court under Article 267.3 TFEU of the non- constitutional court of last instance, because this does not exclude the application of the Charter of Fundamental Rights by the Federal Constitutional Court (see above, marginal no. 74).

d) The extension of the constitutional court’s review standard to the Union’s fundamental rights also does not justify a deviation from the decision of the Second Senate of 28 January 2014 on the film subsidy tax (cf. BVerfGE 135, 155 <229 marginal no. 172>), in which the Second Senate rejected the examination of a German law against the standard of the Union’s state aid provisions, referring inter alia to a generally formulated statement of the First Senate of 28 March 2006, according to which rights based on Community law could not be defended with the constitutional complaint (see BVerfGE 115, 276 <299 et seq.) The Second Senate decided there solely on the question of the Federal Constitutional Court’s competence to review on the basis of the Union law provisions of state aid law. The present decision, which only concerns the competence to review the fundamental rights of the Union, does not deviate from this.

C. The constitutional complaint is unfounded.

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I. 1. The complainant is contesting a civil court decision in a legal dispute between herself and the defendant search engine operator. The Higher Regional Court essentially based the challenged decision on §§ 29, 35 BDSG (old version), which,

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according to the legal situation at the time, implemented Articles 7(f), 12(b) and 14 DSRL 95/46/EC for the German legal system. The provisions of this Directive, which completely unifies the material level of protection, as well as the national provisions transposing it, must be interpreted in the light of the Charter (see ECJ, judgment of 24 November 2011, ASNEF and FECEMD, C-468/10 and C-469/10, EU:C:2011:777, marginal no. 40 et seq.Judgement of 13 May 2014, Google Spain, C-131/12, EU:C:2014:317, para. 68; Judgement of 11 December 2014, Ryneš, C-212/13, EU:C:2014:2428, para. 29; Judgement of 6 May 2014, Google Spain, C-131/12, EU:C:2014:317, para. 68; Judgement of 11 December 2014, Ryneš, C-212/13, EU:C:2014:2428, para. 29; Judgement of 6 December 2014, Ryneš, C-212/13, EU:C:2014:2428, para. 29. October 2015, Schrems, C-362/14, EU:C:2015:650, para. 38; judgment of 9 March 2017, Manni, C-398/15, EU:C:2017:197, para. 39; judgment of 24 September 2019, GC and others, C-136/17, EU:C:2019:773, para. 53; judgment of 24 September 2019, Google [Portée territoriale], C-507/17, EU:C:2019:772, para. 45; Vedsted-Hansen, in: Peers/Hervey/Kenner/Ward, The EU Charter of Fundamental Rights, 2014, para. 07.72A).

Like the fundamental rights of the Basic Law, the fundamental rights of the Charter therefore guarantee protection not only in the state-citizen relationship but also in disputes under private law (see ECJ, judgment of 29 January 2008, Promusicae, C- 275/06, EU:C:2008:54, marginal 65 et seq.; judgment of 16 July 2015, Coty Germany, C-580/13, EU:C:2015:485, marginal 33 et seq.; judgment of 29 January 2008, Promusicae, C-275/06, EU:C:2008:54, marginal 65 et seq. July 2019, Spiegel Online, C-516/17, EU:C:2019:625, marginal 51 et seq.; also Streinz/Michl, EuZW 2011, p. 384 <385 et seq.>; Frantziou, HRLR 2014, p. 761 <771>; Fabbrini, in: de Vries/Bernitz/ Weatherill, The EU Charter of Fundamental Rights as a Binding Instrument, 2015, p. 261 <275 et seq.>; Lock, in: Kellerbauer/Klamert/Tomkin, The EU Treaties and the Charter of Fundamental Rights, 2019, Art. 8 GRCh para. 5). This also applies in particular to Article 7 and Article 8 of the Basic Law, which the European Court of Justice has repeatedly referred to for the interpretation of specialised Union law, irrespective of the legal nature of the underlying dispute. This also corresponds to

the understanding of Art. 8 ECHR, which in the constant case law of the European Court of Human Rights is also applied in disputes between private individuals. On the basis of the relevant specialist law, the fundamental rights of the one side must be balanced with conflicting fundamental rights of the other side (see ECJ, judgment of 29 January 2008, Promusicae, C-275/06, EU:C:2008:54, marginal no. 68; judgment of 16 January 2008, marginal no. 68, EU:C:2008:54, marginal no. 68; judgment of 16 January 2007, marginal no. 8, marginal no. 8, marginal no. 8). December 2008, Satakunnan Markkinapörssi and Satamedia, C-73/07, EU:C:2008:727, para. 53; judgment of 24 November 2011, ASNEF and FECEMD, C-468/10 and C-469/10, EU:C:2011:777, para. 43; judgment of 29 July 2019, Spiegel Online, C-516/17, EU:C:2019:625, para. 38, 42). In accordance with the equal freedom of data processors and data subjects under private law, the protection of fundamental rights is determined on the basis of a balancing of interests.

A doctrine of “indirect third-party effect”, as it is known under German law (see 97 BVerfG, Order of the First Senate of the same day – 1 BvR 16/13 -, marginal nos. 76 f.), is not taken as a basis for the interpretation of Union law. As a result, however,

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the Union fundamental rights have a similar effect on the relationship between private individuals. The fundamental rights of the Charter can have an impact on private law in individual cases.

2. On the complainant’s side, the fundamental rights to respect for private and family life from Art. 7 GRCh and to protection of personal data from Art. 8 GRCh must be
set.

Art. 7 of the GRCh establishes the right to respect for private and family life, home and communications, Art. 8 of the GRCh establishes the right to protection of personal data. These guarantees are equivalent to Article 8 ECHR, which protects the right to respect for private and family life, home and correspondence, and in particular the right to protection against the processing of personal data (see ECJ, judgment of 8 April 2014, Digital Rights Ireland and Seitlinger et al, C-293/12 and C- 594/12, EU:C:2014:238, nos. 35, 47 and 54 et seq.; Constitutional Court of Austria, decision of 27 June 2014, G 47/12 et al, AT:VFGH:2014:G47.2012, marginal 146; Marauhn/Thorn, in: Dörr/Grote/Marauhn, ECHR/GG Concordance Commentary, 2nd

ed. 2013, ch. 16, marginal 29 et seq.Kranenborg, in: Peers/Hervey/Kenner/Ward, The EU Charter of Fundamental Rights, 2014, marginal no. 08.50; Fabbrini, in: de Vries/Bernitz/Weatherill, The EU Charter of Fundamental Rights as a Binding Instrument, 2015, p. 261 <266 f.>; Docksey, IDPL 2016, p. 195 <196 ff.>; Meyer- Ladewig/Nettesheim, in: Meyer-Ladewig/Nettesheim/von Raumer, ECHR, 4th ed. 2017, Art. 8 marginal no. 32 ff.; Kühling/Raab, in: Kühling/Buchner, DS-GVO/BDSG, 2nd ed. Federal Republic of Germany, 2nd ed. 2018, introduction marginal 17 ff.; Lock, in: Kellerbauer/Klamert/Tomkin, The EU Treaties and the Charter of Fundamental Rights, 2019, Art. 7 GRCh marginal 1). The guarantees of Art. 7 and Art. 8 GRCh are closely related. At least as far as the processing of personal data is concerned, these two fundamental rights constitute a uniform guarantee of protection (see ECJ, judgment of 9 November 2010, Volker and Markus Schecke and Eifert, C-92/09 and C-93/09, EU:C:2010:662, para. 47; judgment of 24 November 2010, Volker and Markus Schecke and Eifert, C-92/09 and C-93/09, EU:C:2010:662, para. 47; judgment of 24 November 2010, Volker and Markus Schecke and Eifert, C- 92/09 and C-93/09, EU:C:2010:662, para. 47; judgment of 24 November 2010, Volker and Markus Schecke and Eifert, C-92/09 and C-93/09, EU:C:2010:662, para. 47). ASNEF and FECEMD, C-468/10 and C-469/10, EU:C:2011:777, paragraphs 40 and 42; judgment of 17 October 2013, Schwarz, C-291/12, EU:C:2013:670, paragraphs 39 and 46; judgment of 2 October 2018, Ministerio Fiscal, C-207/16, EU:C:2018:788, paragraph 51; Constitutional Court of Belgium, judgment of 11 June 2015, No 84/2015, B.11Korkein hallinto-oikeus [Supreme Administrative Court of Finland], decision of 15 August 2017, No 3736/3/15, FI:KHO:2017:T3872; High Court of Ireland, decision of 18 June 2014, [2014] IEHC 310, para. 58). This applies in particular to the protection of affected persons against search engine evidence (see ECJ, judgment of 13 May 2014, Google Spain, C-131/12, EU:C:2014:317, nos. 69 and 80; judgment of 24 September 2019, GC and others, C-136/17, EU:C:2019:773, nr. 44; judgment of 24 September 2019, Google [Portée territoriale], C-507/17, EU:C:2019:772, nr. 45).

Art. 7, Art. 8 GRCh protect against the processing of personal data and require 100 “respect for private life”. In this context, personal data is understood – as in the

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understanding of German constitutional law on Article 2 (1) in conjunction with Article 1 (1) of the Basic Law – to include all information that relates to an identified or identifiable natural person (cf. ECJ, judgment of 9 November 2010, Volker and Markus Schecke and Eifert, C-92/09 and C-93/09, EU:C:2010:662, marginal 52; judgment of 24 November 2011, ASNEF and FECEMD, C-468/10 and C-469/10, EU:C:2011:777, marginal 42; for the Basic Law, see BVerfGE 150, 244 <265 marginal 40> with further references). Accordingly, the right to respect for private life is not to be understood narrowly, and in particular is not limited to highly personal or particularly sensitive situations (see ECJ, judgment of 20 May 2003, Österreichischer Rundfunk and others, C-465/00, C-138/01 and C-139/01, EU:C:2003:294, nos. 73, 75; also Lock, in: Kellerbauer/Klamert/Tomkin, The EU Treaties and the Charter of Fundamental Rights, 2019, Article 7 GRCh nr. 5). In particular, business and professional activities are not excluded from this (see ECJ, judgment of 14 February 2008, Varec, C-450/06, EU:C:2008:91, para. 48; judgment of 9 March 2017, Manni, C- 398/15, EU:C:2017:197, para. 34).

Art. 7, Art. 8 GRCh thus protect the self-determined development of personality against the data processing of third parties. In accordance with Article 52 (3) of the Basic Law, the case law of the European Court of Human Rights can in principle also be referred to for the resulting requirements (see ECJ, judgment of 22 December 2010, DEB, C-279/09, EU:C:2010:811, marginal no. 35).

3. On the part of the defendant search engine operator, his right to entrepreneurial freedom under Art. 16 GRCh must be discontinued (a). On the other hand, he cannot invoke Art. 11 GRCh for the dissemination of search evidence (b). However, the fundamental rights of third parties that may be directly affected by such a legal dispute must be discontinued, and thus in this case the freedom of opinion of the content providers (c). In addition, the information interests of the users must be taken into account (d).

a) Entrepreneurial freedom guarantees the pursuit of economic interests by offering goods and services. The protection granted by Art. 16 GRCh includes the freedom to engage in economic or business activities, freedom of contract and
free competition (cf. ECJ, judgment of 17 October 2013, Schaible, C-101/12, EU:C:2013:661, para. 25; Everson/Correia Gonçalves, in: Peers/Hervey/Kenner/Ward, The EU Charter of Fundamental Rights, 2014, para. 16.34 et seq.) This also includes the provision of search services (cf. ECJ, ruling of 13 May 2014, Google Spain, C-131/12, EU:C:2014:317, nos. 81 and 97; High Court of Justice [Queen’s Bench Division], ruling of 13 April 2018, [2018] EWHC 799 [QB], para. 34).

The defendant search engine operator also falls within the scope of personal protection under Article 16 of the Framework Decision. In principle, the fundamental rights of the Union protect not only natural persons but also legal persons (see with regard to Article 47 of the Framework Decision ECJ, judgment

of 22 December 2010, DEB, C-279/09, EU:C:2010:811, para. 38 et seq.; with regard to Article 7, Article 8 of the Framework Decision ECJ, judgment of 9 December 2010, DEB, C-279/09, EU:C:2010:811, para. 38 et seq. November

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2010, Volker and Markus Schecke and Eifert, C-92/09 and C-93/09, EU:C:2010:662, para. 53; also Oliver, in: de Vries/Bernitz/Weatherill, The EU Charter of Fundamental Rights as a Binding Instrument, 2015, p. 287 <292 et seq. and 301 et seq.; specifically for Art. 16 GRCh Wollenschläger, in: von der Groeben/Schwarze/Hatje, European Union Law, 7th edition 2015, Art. 16 GRCh para. 6). For entrepreneurial freedom, this already follows from the wording, which refers to “companies” that are typically organised as legal entities. Nor does the fact that the defendant is a legal person with its seat outside the European Union prevent the protection of Article 16 of the Basic Law: The fundamental rights of the Charter of Fundamental Rights apply in principle to nationals and foreigners alike and make no distinction in this respect for legal persons either (see ECJ, judgment of 30 June 2009, p. 1). July 1996, Bosphorus v Minister for Transport, Energy and Communications, C-84/95, EU:C:1996:312, marginal 21 et seq.; ECJ, judgment of 6 September 2013, Bank Melli Iran v Council, T-35/10 and T-7/11, EU:T:2013:397, marginal 21 et seq. 70; Judgment of 29 April 2015, Bank of Industry and Mine v Council, T-10/13, EU:T:2015:235, para. 58; also Sasse, EuR 2012, p. 628 <636 et seq.>; Jarass, in: ders., EU Charter of Fundamental Rights, 3rd edition 2016, Art. 51 para. 52). The legal situation differs in this respect from the domestic legal situation under Article 19.3 of the Basic Law (on the fundamental rights of foreign private enterprises, but only of those with their seat in the European Union, see BVerfGE 129, 78 <94 et seqq.)

  1. b)  On the other hand, the defendant search engine operator cannot invoke the freedom of expression from Art. 11 GRCh for its activities. Admittedly, the search services offered by him and the means he uses to prepare the search results are not content-neutral, but can have a considerable influence on the formation of users’ opinions. However, these services are not intended to disseminate specific opinions. Nor does the search engine operator itself refer to this. According to his argument, they are solely aimed at satisfying potential interests of the users as far as possible, independent of certain opinions, and thus to make his service as attractive as possible in the economic interest of the company. Accordingly, the European Court of Justice has also denied search engine operators the right to invoke the media privilege (see ECJ, judgment of 13 May 2014, Google Spain, C-131/12, EU:C:2014:317, para. 85).
  2. c)  However, the fundamental rights of the content providers whose publication is at stake must also be taken into account when weighing up the interests of those affected and search engine operators.aa) Insofar as a legal dispute between an affected party and the search engine operator regarding a listing necessarily involves a decision on a restriction of fundamental rights of third parties, these are also to be included in the examination. The legality of the decision vis-à-vis third parties is then one of the objective prerequisites for the legality of restrictions of the freedom of enterprise which can be asserted by invoking one’s own fundamental right under Article 16 GRCh. This does not constitute a direct assertion of the fundamental rights of third parties. A search engine operator may not be given up anything that violates the basic rights of third parties.

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bb) In the legal dispute as to whether a search engine operator is to be 108 prohibited from providing certain search evidence, the question of a possible violation of fundamental rights under Art. 11 GRCh vis-à-vis the content provider
as the outsider is often affected. The question of whether or to what extent a content provider may have a claim against a search engine operator for the distribution of its content is not decisive here. For in this constellation it is not a question of whether the search engine operator can be obliged to provide proof, but rather whether he can be prohibited against his will from distributing the contributions provided by a content provider. At the same time, such a prohibition can also constitute an independent restriction of the freedom of the content provider as an expression of Art. 11 GRCh. This is because this deprives the content provider of an available service provider and thus in part also an important medium for the distribution of his reports.

Insofar as a decision on the prohibition against the search engine operator is to 109 be made in view of the concrete content of the disputed pages for which the content provider is responsible, the effect on the latter is also not a mere reflex
of an order against the search engine operator. Rather, the decision is directly linked to the expression and use of freedom of opinion (see Spiecker genannt Döhmann, CMLR 2015, p. 1033 <1046>; Fabbrini, in: de Vries/Bernitz/Weatherill, The EU Charter of Fundamental Rights as a Binding Instrument, 2015, p. 261 <284>; Peguera, JETLaw 2016, p. 507 <555 f.>; Tambou, RTDE 2016, p. 249 <266 f.>; Jonason, ERPL 2018, p. 213 <219>). The decision is specifically aimed at restricting the distribution of the article because of its content. In this constellation, a decision cannot be made on the application of a person affected to refrain from providing search evidence to a search engine operator without considering the question of whether and to what extent the content provider is entitled to disseminate the information to the persons affected under Art. 11 GRCh.

d) The access interests of Internet users must also be included in the weighing process (see ECJ, judgment of 13 May 2014, Google Spain, C-131/12, EU:C:2014:317, para. 81; judgment of 24 September 2019, GC and others, C- 136/17, EU:C:2019:773, para. 53, 57, 59, 66, 68 and 75 et seq.; judgment of 24 September 2019, Google [Portée territoriale], C-507/17, EU:C:2019:772, para.

45; High Court of Justice [Queen’s Bench Division], decision of 13 April 2018, [2018] EWHC 799 [QB], para. 133 et seq.; Korkein hallinto-oikeus [Supreme Administrative Court of Finland], decision of 17 August 2018, No 3580/3/15, FI:KHO:2018:112; Hoge Raad, decision of 24 February 2017, No 15/03380, NL:HR:2017:316, marginal 3.5.1 et seq.Article 29 Working Party, Guidelines for the implementation of the judgment of the Court of Justice of the European Union in Case C-131/12 Google Spain and Inc v Agencia Española de Protección de Datos (AEPD) and Mario Costeja-González of 26 February 2017, No 15/03380, NL:HR:2017:316, para. 3.5.1 et seq. November 2014, 14/EN WP 225, p. 6; see also Frantziou, HRLR 2014, p. 761 <769>; Spiecker called Döhmann, CMLR 2015, p. 1033 <1046>; Fabbrini, in: de Vries/Bernitz/Weatherill, The EU Charter of Fundamental Rights as a Binding Instrument, 2015, p. 261 <284>). In this respect,

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the European Court of Justice demands that the interest of a broad public in access to information be taken into account as an expression of the right to free information guaranteed in Article 11 of the Basic Law. The role of the press in a democratic society must also be taken into account. In this respect, however, it is not the individual rights of users under Article 11 of the Basic Law to access information on the Internet site specifically concerned that are in question, but rather freedom of information as a principle to be taken into account by way of a balancing act, which must be taken into account when restricting Article 16 of the Basic Law.

II. The Federal Constitutional Court does not review the correct application of ordinary law, but is limited in the context of the constitutional complaint to a review of the observance of fundamental rights, in this case the fundamental rights of the Union (see BVerfGE 18, 85 <92 f.>; 142, 74 <101 marginal no. 82 f.>; stRspr.) Accordingly, in the present case, it does not examine either the correct application of the Data Protection Directive 95/46/EC in force at the time of the challenged decision or the correct interpretation of the then applicable provisions of the Federal Data Protection Act. The only thing that needs to be examined is whether the non- constitutional courts have sufficiently taken into account the fundamental rights of the Charter and have found a reasonable balance between them (cf. on the fundamental rights affected here, BVerfGE 7, 198 <205 et seq.>; 85, 1 <13>; 114, 339 <348>; stRspr).

1. The basis for this is the assessment of the action of the defendant’s search services as a separate act of data processing, which must therefore also be assessed independently with regard to the associated restrictions of fundamental rights. In particular, the question of its legality does not arise in the question of the legality of the publication of the contribution by the content provider. Since the rights, interests and burdens involved in an action by the person concerned against the search engine operator can be different from those involved in an action against the content provider, a separate weighing up is required. Thus, action against the search engine operator is not subsidiary to action against the content provider (see ECJ, judgment of 13 May 2014, Google Spain, C-131/12, EU:C:2014:317, para. 83 et seq.; judgment of 24 September 2019, GC et al, C-136/17, EU:C:2019:773, marginal 36 et seq.; judgment of 24 September 2019, Google [Portée territoriale], C-507/17, EU:C:2019:772, marginal 44; see also BGHZ 217, 350 <368 et seq. marginal no. 45>). Domestic provisions of specialised law, which in principle provide for subordination of the liability of intermediaries (cf. Section 59 (3), (4) Interstate Treaty on the Protection of Minors in the respective national versions which entered into force on 25 May 2018), are not applicable mutatis mutandis.

The specialised courts take account of the independence of the weighing of fundamental rights by placing claims for protection against the dissemination of a text under different requirements vis-à-vis a search engine operator than vis-à-vis a content provider. According to this, a search engine operator, for example, is only obliged to be listed according to the principle of “notice and take down”, i.e. after receiving a corresponding request for listing. In contrast to a content provider when posting its contribution to the network for the first time, the search engine operator

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is not obliged to check the content of the evidence on its own initiative (see BGHZ 217, 350 <361 f. marginal 34>; also ECJ, judgment of 13 May 2014, Google Spain, C- 131/12, EU:C:2014:317, marginal 94 et seq.; judgment of 24 September 2019, GC et al., C-136/17, EU:C:2019:773, marginal 48, 66, 68 and 77). Also substantively, different liability requirements apply, such as those developed by the Federal Court of Justice, for example, in connection with the distinction between direct and indirect “Stoererhaftung” (Breach of Duty of Care), which is also otherwise pervasive in liability law, and which may in particular result in different obligations of data processors to examine or present their data (see BGHZ 217, 350 <360 et seq. In filling in the simple-law provisions of specialised law which require more concrete definition, the specialised courts thus take account of the various situations in which data processors face the data subjects and concretise the requirements of the Data Protection Directive 95/46/EC or, at present, the Basic Data Protection Regulation in the light of the fundamental rights which each party faces.

2. The distinction between the various data processors necessary for weighing up fundamental rights does not call into question the fact that there may be interactions and that, in order to seek injunctive relief from a search engine operator, the situation of the data subject vis-à-vis the content provider may also have to be taken into account. As explained above, when deciding on the prohibition of a search listing, it may be necessary to examine in particular a possible inherent restriction of the basic right of the content provider to disseminate his contributions with available means.

a) In principle, however, even in this respect there is no automatic correspondence between the admissibility of making a contribution available on the net and the admissibility of the proof by a search engine. For example, the claim for protection against a search engine operator may extend further than against the content provider if, under national specialist law, the relationship between the parties concerned and the content provider is governed solely by the correctness of the content of a contribution without taking into account its effects of dissemination on the Internet, and the resulting need for protection of the parties concerned is therefore not yet covered at this level. Especially in cases in which changed circumstances have not been or could not be asserted against the content providers due to the passage of time, an approach to the search engine operator can offer further protection to the affected parties.

This was the case on which the decision of the European Court of Justice Google Spain (ruling of 13 May 2014, C-131/12, EU:C:2014:317) was based. There, the Spanish courts had decided that the person concerned had no right to protection against the continued availability of the disputed advertisement by the press because of its original legality; the changed temporal circumstances had not been taken into account. The same situation was the basis for the decision of the European Court of Justice GC (ruling of 24 September 2019, C-136/17, EU:C:2019:773). Nor does it appear evident for the cases there that, under the relevant national law, the communication conditions of the Internet, in particular their findability by search engines, had to be taken into account when

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determining the scope of the right of content providers to distribute contributions to the persons concerned.

Accordingly, independent claims for protection can be asserted against a search engine operator if those affected, due to the changed effect of a report in time, from the outset only object to a certain proof and its linking by the search engine operator. The original legality of the provision of the report on the Internet does not then mean that the search engine operator may continue to provide evidence of this on any type of search query. If a search engine operator is prohibited from providing evidence of a particular report in such a case, this does not automatically constitute a violation of the fundamental rights of the content provider either, since the content provider cannot in turn derive from the originally lawful publication the right vis-à-vis the persons concerned to continue to disseminate and have disseminated the reports permanently in any form whatsoever (for German law, see BVerfG, Order of the First Senate of the same day – 1 BvR 16/13 -, marginal no. 114 et seq.)

  1. b)  If, on the other hand – as is usually the case under German law pursuant to §§ 118 823, 1004 of the German Civil Code by analogy – when assessing the legality of the distribution of a report by the content provider, its effect on the person concerned on the Internet is taken into account in the weighing process (see BVerfG, Order of the First Senate of the same day – 1 BvR 16/13 -, marginal no. 101 et seq., 114 et seq. Insofar as a content provider is entitled to disseminate a report both in consideration of the conditions of dissemination on the Internet (and thus at the same time the name-related findability by search engines) and in consideration of the time factor in relation to the persons concerned, nothing else can apply in this respect to the proof of such a page by a search engine operator.
  2. c)  This is without prejudice to the fact that the weighing of interests between those affected and search engine operators is always in the area of conflict between the reasonableness of possible protective measures on the part of the search engine operator and the reasonableness of protection options to be obtained elsewhere on the part of the respective affected parties and that, also from this point of view, the outcome of the weighing against different data processors can and, if necessary, must be different. Within the framework of the differentiations developed by the non-constitutional courts (see marginal no. 113 above), differences may also have to be taken into account which result, for example, from the varying degrees to which protection can be obtained or which concern the effectiveness of protective measures. For example, a claim against a search engine operator as an indirect interfering party may go further if a content provider abroad is legally hardly tangible than if it can be legally claimed without further ado within the European Union. It may also go further if – for example, in view of reflections of a contribution in various Internet forums – it is more efficient to take action against a search engine operator. It is primarily up to the specialised courts to specify these requirements. The Federal Constitutional Court examines them for their justifiability in terms of fundamental rights.

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3. In order to assess the request for protection against a search engine operator, a comprehensive weighing up of the conflicting fundamental rights of the person affected by the evidence and the search engine operator, including the fundamental rights of the content provider and the public’s interest in information, is required. In this context, the weight of the economic interests of the search engine operator alone is in principle not sufficiently heavy to limit the right to protection of those affected (see ECJ, judgment of 13 May 2014, Google Spain, C-131/12, EU:C:2014:317, para. 81; judgment of 24 September 2019, GC et al, C-136/17, EU:C:2019:773, para. 53; judgment of 24 September 2019, Google [Portée territoriale], C-507/17, EU:C:2019:772, para. 45). In contrast, the public’s interest in information and, above all, the fundamental rights of third parties to be included here have greater weight.

The freedom of opinion of the public broadcaster affected by the decision and thus entitled to fundamental rights (see on the fundamental rights of public broadcasters independent of the state, ECJ, judgment of 26 April 2012, DR and TV2 Danmark, C- 510/10, EU:C:2012:244, nos. 12, 57 – for Article 16 GRCh; Jarass, in: ders, EU Charter of Fundamental Rights, Third Edition 2016, Article 11 marginal no. 19 – for Article 11.2 of the Basic Law; ECHR, RTBF v. Belgium, judgment of 29 March 2011, No. 50084/06, §§ 5, 94 – for Article 10 of the ECHR; also BVerfGE 31, 314 <321 et seq.>; 59, 231 <254>; 74, 297 <317 f.>; 78, 101 <102 f.>; 107, 299 <310>) to include content providers as a directly affected fundamental right – and not only as an interest to be taken into account – in the weighing process. Therefore, there is no presumption that the protection of the right of personality takes precedence here; instead, the conflicting fundamental rights must be weighed up equally. Just as individuals cannot unilaterally determine vis-à-vis the media what information is disseminated via them in the context of public communication (see on this point under German law BVerfG, Order of the First Senate of the same day – 1 BvR 16/13 -, marginal no. 107), they have no such power of determination vis-à-vis search engine operators.

If those affected – as in this case – do not already object to the possibility of name-related searches at all, but rather to their effect with regard to individual contributions that adversely affect them, the effect of their dissemination is decisive
for the weighting of their restriction of fundamental rights. Points of reference here are – integrated into the general liability prerequisites of the civil courts that are linked to reasonable criteria – the effects of the dissemination of the contribution in dispute for the development of personality, as they result specifically from the search evidence, in particular also taking into account the possibility of name-related searches. For this purpose, it is not sufficient to assess the reporting in its original context, but the easy and continuous accessibility of the information by the search engine must also be taken into account. In particular, account must also be taken of the significance of the time between the original publication and its subsequent proof, as is also standardised under the current legal situation in Art. 17 DSGVO according to the guiding principle of a “right to be forgotten” (see ECJ, judgment of 13 May 2014, Google Spain, C-131/12, EU:C:2014:317, marginal no. 92 et seq.; judgment of 24 September 2019, GC et al, C-136/17, EU:C:2019:773, paras 53, 74 and 77; judgment of 24 September 2019, Google [Portée territoriale], C-507/17, EU:C:2019:772, paras 45 et seq.; for the interpretation of the Basic Law, see BVerfG, Order of the First Senate of the same day – 1 BvR 16/13 -, paras 105 et seq.

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Diesterhöft, Das Recht auf medialen Neubegung, 2014, p. 24 et seq.; Frantziou, HRLR 2014, p. 761 et seq.; Spiecker called Döhmann, CMLR 2015, p. 1033 et seq.; Sartor, IDPL 2015, p. 64 ff; Tambou, RTDE 2016, p. 249 ff; Auger, RDP 2016, p. 1841 ff; Jonason, ERPL 2018, p. 213 ff; Becker, Das Recht auf Vergessenwerden, 2019, p. 49 ff).

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III. As a result, the contested decision is not objectionable.

1. The Higher Regional Court correctly regards the name-related retrieval, indexing, temporary storage and display of the link to the disputed contribution of the Norddeutscher Rundfunk as processing of personal data. It also acknowledges that
the complainant may thus have her own claims for protection and deletion against the search engine operator, on which a decision is to be made in accordance with a weighing of interests. In doing so, the court weighs up both the protection of the complainant’s right of personality and the defendant’s entrepreneurial freedom, the latter rightly in connection with the freedom of opinion of Norddeutscher Rundfunk as a content provider and the Internet users’ interest in access. In so doing, it recognised and took into account the substantive fundamental rights positions of the parties and the interests of third parties to be taken into account. It is irrelevant whether the court correctly distinguishes between the fundamental rights of the Charter and those of the Basic Law. If the substantive constitutional evaluations are properly adjusted, the requirements of the protection of fundamental rights are met. In the present case, the Higher Regional Court referred to Article 2.1 in conjunction with Article 1.1 of the Basic Law and Articles 7 and 8 of the Basic Law side by side and weighed them up against each other. This means that the fundamental rights requirements have been satisfied from the outset.

2. The decision of the Higher Regional Court was made before the fundamental decision of the Federal Court of Justice (see BGHZ 217, 350), with which the latter classifies the liability of search engine operators into liability law and specifies it in more detail, and thus does not – as would be the case in the current civil jurisdiction – initially tie in with the distinction between indirect and direct “Stoererhaftung” (Breach of Duty of Care), but directly enters into a weighing of the conflicting interests. The Federal Constitutional Court, which is not responsible for the enforcement of general civil law, must take this as the starting point for its control and, in doing so, examine whether the fundamental rights are sufficiently observed.

As a result, the challenged decision remains within the scope of the evaluation by the specialised courts.

a) The Higher Regional Court is right to focus first on the criteria which are decisive for the permissibility of the broadcasting of the disputed contribution of Norddeutscher Rundfunk and its further provision on the network vis-à-vis the complainant. In this connection, it also correctly takes into account the ability of the contribution to be found by search engines, in particular also by means of name-related queries.

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However, it falls short if the Higher Regional Court considers the complainant to be affected only in her social sphere. Today, the ability to find and combine information by means of name-related searches means that it is hardly possible
to distinguish between the private and social spheres with regard to their effects.

The complainant emphatically asserts this also in her case. In contrast, the Higher Regional Court argues in a sustainable manner that the contribution on the practical effectiveness of protection against unfair dismissal is a topic of general interest. The contribution relates to the conduct of the complainant and the company she runs, which has an impact on society, but not solely on her private life, and is justified in this respect by a public interest in information which is still ongoing here, albeit diminishing over time. In this respect, the complainant must accept incriminating effects – also in her private environment – to a greater extent than in relation to contributions about her private conduct. As a criterion for the classification of the subject of the contribution, not the effects on the persons concerned, the distinction between social and private life retains its validity even today.

In addition, the Higher Regional Court could also take as a basis the fact that the complainant had given her consent to the interview which was the subject of the disputed contribution. Admittedly, in assessing the significance of such consent,
the circumstances in which it is given also play a role. However, as can be seen from the reference in the challenged decision to the relevant findings of fact in a decision of the Hamburg Regional Court, the complainant gave her consent without undue pressure as a deliberate step into the public domain and was not deceived or “taken by surprise” by the journalists.

The contested decision rightly does not consider the report and the link referring to it to be an abuse. Even if the title “The employers’ nasty tricks” may evoke a negative image of the complainant in the context of a person-related search evidence, this is obviously not an inadmissible abuse from the outset. This is only the case if the sole purpose of the title is to denigrate the person without any factual reference (see BVerfGE 93, 266 <294>). This is not the case here. Rather, the contribution is directly connected with a dispute between the complainant as managing director of an employer and the workforce. As a value judgement, the contribution thus undoubtedly falls outside the scope of freedom of opinion, so that a decision on the legality of the statement must be made by way of weighing up the arguments. If the Higher Regional Court considers the dissemination of this contribution, including the naming of personal responsibility, to be justified in principle even under the conditions of the Internet – and thus also in view of its discoverability in the context of name- related searches – this is not constitutionally objectionable.

b) The Higher Regional Court also took the time factor into consideration and examined whether the further distribution of the contribution, even by name, is still justified in view of the time that has elapsed since then. The passage of time
can modify both the weight of the public interest and that of the impairment of fundamental rights (see BVerfG, Order of the First Senate of the same day – 1 BvR 16/13 -, marginal no. 120 et seq.)

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In doing so, the court takes into account, on the one hand, that there is a continuing public interest in the issue. It correctly recognises that the “achievement of purpose” aspect of the dissemination of contributions which serve to form public opinion is not normally an appropriate criterion for determining the duration of their lawful dissemination. For in the case of such contributions, dissemination is not based on a specific permission for a particular purpose, but is rooted in the freedoms of communication and the resulting right to be able to set or change the purpose of communication itself or to leave it open with regard to further communication.

On the other hand, the court did not rule out the possibility that, over time, the identifying dissemination of such contributions by search engines may become unreasonable and thus inadmissible. Rather, it recognises that the burdensome effect of the dissemination of critical contributions on the behaviour of individual persons over time – especially if the contributions are communicated as a priority in response to name-related queries even many years later – can grow considerably for the persons concerned and be less and less justified. In this way, it takes into account the fundamental importance for the free development of personality of the chance that incriminating information can be forgotten.

Ultimately, however, it does not consider such a right to be excluded in the present case, at least not at this stage. In this respect, the decisive point is that the complainant herself entered the public sphere with the interview, that there
is a continuing public interest in the topic, that she continues to be active as a managing director and that the period of seven years is not excessively long in relation to the continuing topicality of the topic. This takes sufficient account of

the guarantees of the Charter of Fundamental Rights; it does not reveal a fundamentally incorrect view of the significance and scope of the fundamental rights in question and cannot be objected to by the Federal Constitutional Court as justifiable under technical law.

c) Since the Higher Regional Court dismissed the complainant’s complaint and thus the distribution of the contribution is not restricted vis-à-vis the content provider either, the latter did not have to be heard with regard to its fundamental rights,
nor did it have to be involved in the proceedings with its own legal protection options.

d) As a result, the challenged decision remains within the scope of the evaluation by the specialised courts. The constitutional complaint must therefore be dismissed.

IV. A referral to the European Court of Justice under Article 267(3) TFEU is not required. The application of the fundamental rights of the Union to the present case does not raise any questions of interpretation that are not already clear in themselves or sufficiently clarified by the case-law of the European Court of Justice – with additional consideration of the case-law of the European Court of Human Rights (see Article 52.3 GRCh).

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1. First of all, it has been clarified that the activity of a search engine is to be measured independently against Art. 7, Art. 8 GRCh, that it does not fall under the so-called media privilege and that a person affected does not have to first refer to
the content provider for protection claims. It has also been clarified that the question as to when the search engine operator must delete a record depends on a weighing of interests in the individual case, which is not identical with the weighing of the rights of the content provider and the affected party, but rather requires consideration of the respective different situations (see on all this ECJ, judgment of 13 May 2014, Google Spain, C-131/12, EU:C:2014:317, nos. 35 et seq. and 74; judgment of 24 September 2019, GC et al, C-136/17, EU:C:2019:773, para. 68 and 77; judgment of 24 September 2019, Google [Portée territoriale], C-507/17, EU:C:2019:772, para. 44).

2. Nor is it necessary to clarify that the fundamental rights of content providers are to be included in the weighing up of these issues. The fact that when weighing up different fundamental rights, all the fundamental rights affected by the result must
be taken into account not only follows automatically from the principle of the comprehensive binding of fundamental rights itself, which is subject to the Charter, but also corresponds to the case-law of the European Court of Justice and the European Court of Human Rights (cf. only ECJ, judgment of 29 January 2008, Promusicae, C-275/06, EU:C:2008:54, marginal 65 et seq.; judgment of 7 August 2018, Renckhoff, C-161/17, EU:C:2018:634, marginal 41 et seq.; ECHR [GK], von Hannover v. Germany, judgment of 7 February 2012, nos. 40660/08 and 60641/08, § 106 with further references).

This is also in line with the decisions of the European Court of Justice Google Spain, GC and Google – Portée territoriale – (see ECJ, judgment of 13 May 2014, C-131/12, EU:C:2014:317, marginal 21 et seq.; judgment of 24 September 2019, C-136/17, EU:C:2019:773, marginal 53, 57, 59, 66 et seq, 75 ff.; Judgment of 24 September 2019, C-507/17, EU:C:2019:772, marginal 40 ff.) If the European Court of Justice derives the requirement to take into account the non-individualised interests of an indirectly affected public already from Article 11 of the Basic Law, with reference to freedom of information (cf. ECJ, ruling of 24 September 2019, GC et al., C-136/17, EU:C:2019:773, para. 75 f.), this must apply all the more to content providers whose freedom of opinion is individually and directly affected by a listing decision. Accordingly, the Court of Justice, referring to the rights of the Charter of Fundamental Rights, states without restriction, also with regard to search engines, that the lawfulness of data processing under the Data Protection Directive 95/46/EC requires a balancing of the respective conflicting rights and interests (see ECJ, judgment of 13 May 2014, Google Spain, C-131/12, EU:C:2014:317, para. 74). According to this judgment, the decision on the prohibition of a search listing must also take into account the fundamental rights of the content provider. If, in view of the specific content of its publication, the content provider is deprived in part of an important medium for its dissemination which would otherwise be available to him, his fundamental rights are also directly restricted by a decision to discontinue the publication.

Accordingly, it does not affect any questions of interpretation that initially require clarification by the European Court of Justice, that for the present constellation it is not – as in those decisions (see ECJ, judgment of 13 May 2014, Google Spain, C-37 131/12, EU:C:2014:317, marginal 81; judgment of 24 September 2019, GC et al, C- 136/17, EU:C:2019:773, nos. 53 and 66) – the presumption of a primacy of the protection of personality rights is taken as a basis for weighing up the arguments. This presumption was also determined by the specific constellation of those proceedings. In the Google Spain decision, for example, the freedom of opinion of the content providers concerned was not even to be suspended in the first place because it was an official announcement (see ECJ, judgment of 13 May 2014, C- 131/12, EU:C:2014:317, nos. 14, 16). In the GC decision, particular importance was attached from the outset to the protection of personality, because data particularly relevant to personality within the meaning of Article 8 (1) and (5) DSRL 95/46/EC was affected (see ECJ, judgment of 24 September 2019, C-136/17, EU:C:2019:773, marginal nos. 24 et seq., 39 et seq., 44, 67 et seq. By contrast, there is nothing in either the Charter of Fundamental Rights itself or in the case-law of the European Court of Justice to suggest that, when weighing up the protection of the right of personality on the one hand and freedom of opinion on the other, the latter would not in principle be on an equal footing. On the contrary, it can also be seen from the case-law of the European Court of Justice that it weighs up freedom of opinion where it is relevant and that it is not fundamentally subordinate to other fundamental rights. Accordingly, the European Court of Human Rights also states that the rights guaranteed in Articles 10 and 8 of the ECHR deserve the same consideration in principle (“as a matter of principle”) (see ECHR, von Hannover v. Germany, Judgment of 7 February 2012, nos. 40660/08 and 60641/08, § 106 with further references; Delfi v. Estonia, Judgment of 16 June 2015, no. 64569/09, § 139). Consequently, also in the context of a legal dispute vis-à-vis intermediaries, it requires an open weighing up of the right of personality and the freedom of opinion of the party making the statement (see ECHR, Kucharczyk v. Poland, decision of 24 November 2015, no. 72966/13, §§ 25 et seq.)

D. This decision was taken unanimously. Harbarth

Baer
Christ

Masing Britz

Paulus Ott

Radtke

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