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Better In Than Out: When Constitutional Courts Rely on the Charter

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1 BVerfG, order of 6 November 2019, case 1 BvR 16/13 – Right to be forgotten I, English summary available at 〈www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2019/bvg19-083.html〉 and BVerfG, order of 6 November 2019, case 1 BvR 276/17 – Right to be forgotten II, English summary available at 〈www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2019/bvg19-084.html〉, both visited 10 March 2020. Both decisions were published on 27 November 2019. The literal quotations refer to the English summary of Right to be forgotten I (referring to para. 105 of the decision).

2 VfGH 14 March 2012, Cases U466/11-18 etal., Charter of Fundamental Rights, English translation provided by the VfGH, available at 〈www.vfgh.gv.at/downloads/VfGH_U_466-11__U_1836-11_Grundrechtecharta_english_2.pdf〉, visited 10 March 2020.

3 Corte costituzionale, decision of 23 January 2019, case 20/2019 English translation provided by the Corte available at 〈www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S_20_2019_EN.pdf〉, visited 10 March 2020. For the specific context of so-called ‘dual preliminary’ cases, i.e. situations in which national law potentially violates both Italian fundamental rights and the Charter, see Martinico, G and Repetto, G, ‘Fundamental Rights and Constitutional Duels in Europe: An Italian Perspective on Case 269/2017 of the Italian Constitutional Court and Its Aftermath’, 15(4) EuConst (2019) p. 731 ff. with a comment on the preceeding case No. 269/2017.

4 Cour constitutionnelle, decision of 15 March 2018, Case 29/2018.

5 Conseil constitutionnel, decision of 26 August 2018, case 2018-768 DC.

6 Perhaps with the exception of the Belgian Cour constitutionnelle, which never left the game in the first place.

7 BVerfG, Right to be forgotten II, supra n. 1, para. 60.

8 See Art. 93(1) No 4a of the Basic Law.

9 In the BVerfG’s previous EU-related case law, constitutional complaints were always based on a potential violation of German fundamental rights and Art. 38 (right to vote) in particular.

10 BVerfG, Right to be forgotten II, supra n. 1, para. 62 ff.

11 So-called ‘grundrechtsspezifische Kontrollfunktion’.

12 BVerfG, Right to be forgotten II, supra n. 1, para. 61. However, it would be at odds with the entire judicial system if individuals were to have a cause of action before the Court of Justice against national acts.

13 ECJ 26 February 2013, Case C-399/11, Melloni, ECLI:EU:C:2013:107, para. 60.

14 See BVerfG, Right to be forgotten II, supra n. 1, para. 77 ff.

15 BVerfG, Right to be forgotten I, supra n. 1, para. 50 ff.

16 Ibid., para. 55 ff.

17 Ibid., para. 60 ff.

18 Ibid., para. 63 ff.

19 BVerfG, Right to be forgotten II, supra n. 1, para. 69.

20 Ibid., para. 69 ff.

21 ECJ 6 October 1982, Case 283/81, CILFIT, para. 21.

22 See BVerfG, Right to be forgotten II, supra n. 1, para. 87 ff.

Better In Than Out: When Constitutional Courts Rely on the Charter

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