The two-faced guardian – or how one half of the German Federal Constitutional Court became a European fundamental rights court

Abstract

In two landmark decisions on the so-called “Right to be forgotten” the First Senate of the German Federal Constitutional Court (FCC) has accepted EU fundamental rights as a standard of review. The article puts this seminal case law in the comparative context of a Europe-wide transformation of constitutional review and demonstrates why, despite several critical concerns, it is one of the most important developments in the history of the FCC’s fundamental rights jurisprudence. By allowing individuals to directly rely on the EU Charter within the framework of a constitutional complaint, the First Senate (re)-centralizes fundamental rights review within the FCC and acknowledges fundamental rights pluralism in Europe. However, this new development does not herald an entirely new era of EU-related case law of the FCC, given that its Second Senate is still on its path of constitutional entrenchment. This turns the FCC into a two-faced guardian: the first face looks outward through the Basic Law’s permeability towards EU fundamental rights, the second looks inward at the impermeable core of the Constitution.