Anti-terror Database, the German Constitutional Court reaction to Åkerberg Fransson – From the spring/summer 2013 Solange collection: reverse consistent interpretation.

By on 3 Maggio, 2013

In a previous
, I maintained that the judgment in the Åkerberg Fransson case
did not extend the application of the EU Charter of Fundamental Rights beyond
the familiar area derived from the doctrines of ERT and Wachauf. In that
case, the Court of Justice of the European Union (CJEU) expressly defined the
scope of the Charter and EU law as coterminous, therefore averting the risk
that the Charter become an autonomous platform of additional EU competences.
However, some commentators interpreted this judgment as a troublesome example
of competence-creep sanctioned by the CJEU. Among them, in an unfortunate
restaging of the post-Mangold drama,
figure the judges of the German Constitutional Court (Bundesverfassugsgericht, hereinafter ‘BvG’). Their reaction did not
take long to materialise: less than two months after Fransson they delivered the decision in the “Anti-terror Database” case (Judgment
1 BvR 1215/07 of 24 April 2013
). This judgment is a loud signal to the
CJEU, whereby the Karlsruhe tribunal made clear that it will not ratify any
trend of uncontrolled expansion of the EU’s competence in human rights
protection, obtained through the application of the Charter to areas remotely
touched upon by EU law.

The complainant challenged the constitutionality
of the German Act on Setting up a Standardised Central Counter-Terrorism
Database of Police Authorities and Intelligence Services of the Federal
Government and the Länder. This
law regulates the exchange of information between the police and intelligence
agencies and poses a threat to the right to privacy of those people whose
personal information are collected and exchanged.

The BvG affirmed that the challenged provisions
pursue nationally determined objectives which ‘are not determined by EU law,’
and can regard it ‘only in part.’[§§ 88-89] Accordingly, the Charter cannot
apply and the CJEU cannot be the juge
for the human-rights review of this measure. [§ 91] However, the
BvG candidly exposed all the possible links between the German measure and EU
law; they are not few. The EU has legislated in the field of data protection
and in particular on the limitations on the use of personal data by commercial
actors; it developed a series of anti-terrorism policies that include the
treatment and exchange of data relating to terrorism investigations. The
“Anti-terror Database,” therefore, has direct implications that spread across
the field of application of EU law.

The BvG refused to raise a preliminary question
to the CJEU, invoking the acte claire doctrine
of CILFIT, therefore making sure to
reserve the last word on the matter for itself. Moreover, it refused to
consider the application of the Charter to the Anti-terror Database, because it
does not implement EU law under Art. 51(1) of the Charter. [§ 90] The strength
of the link with EU law is too low to grant application of the Charter and the
BvG invoked para. 22 of Annibaldi
to validate this view. In that passage, the CJEU excluded the application of
fundamental principles to national legislation which, despite ‘be[ing] capable
of affecting indirectly the operation of an [EU norms],’ ‘pursues objectives
other than those covered by [the latter].’ The choice to invoke this exemption
is understandable: it is the only one available in the case-law on general
principles, once the application of EU law is confirmed (which is also the
reason why the BvG had to resort to the acte
justification to escape the obligation of Art. 267 TFEU).

What is more debatable is whether this
exemption applied in fact: even if the origin of the German measure is fully
domestic its objectives seemingly correspond to those pursued by EU law. There
is no other primary purpose of the Anti-terror Database which makes the EU ones
ancillary: the measure operates ‘within the scope of EU law’ and shares its
aims. In this sense, the subsequent distinguishing of Fransson is a red-herring: the Anti-terror Database is subjected to
the Charter simply because the Annibaldi
exemption does not apply, hence there was no need to flag the destabilizing
potential of Fransson. In this sense,
the BvG tried to dress its reluctance to submit the Database to the CJEU’s
scrutiny as a wise act of conflict-prevention, taken ‘in the spirit of
cooperative coexistence’ (literally,
‘Im Sinne eines kooperativen Miteinanders’ a formula reminiscent of that used
in Honeywell,
§ 57: ‘wechselseitige Rücksichtnahme,’ which corresponds roughly to ‘mutual
consideration,’ see this

In particular, the BvG  noted that an expansive reading of Fransson would render it akin to an
‘obvious’ ultra vires act endangering
the protection of fundamental rights in the member States, of the kind
foreshadowed in the recent Lissabon
and Honeywell judgments. Similar
acts would force the BvG to act in civil disobedience and denounce the decision
of the CJEU (as the Czech constitutional court did in 2012). Therefore the BvG
specified which interpretation of Fransson
might avert this risk, in an unprecedented exercise of reverse consistent interpretation (i.e., how to interpret Art.
51(1) of the Charter in conformity with the core values of the Grundgesetz).
Art. 51(1) of the Charter, the BvG specified, cannot operate when the domestic
measure relates to the ‘purely abstract scope of EU law’ nor when it has a
‘merely de facto’ impact on it.

Seemingly, the BvG decided to act as the champion
of constitutional gatekeepers in the Union, in the immediate wake of a couple
of decisions (Melloni and Fransson) whose combined effect is
perceived to sanction the inexorable marginalization of constitutional
tribunals in an area where they have long lost the home-field advantage: review
of human rights’ compliance of domestic norms. National constitutions are
sidelined when EU law applies even remotely or when domestic measures happen to fall within its scope (Fransson). In addition, State-specific
constitutional guarantees stand no chance of survival when they collide with
the standards set by the Charter (Melloni).
It is fair to say that, even if neither decision seems to constitute the kind
of ultra vires act feared by the BvG
in the Honeywell judgment [§ 66],
certainly the slow but irreversible application of the Charter is eroding the
jurisdiction of constitutional tribunals (see above) and the scope of
application of national guarantees that do not mirror EU standards. This
decision served Bruxelles with a notice of warning: the terms of the peaceful entente cannot act always in favour of
the EU regime, lest the BvG be ready to denounce the contract (the constitutional
synallagma, see G. Martinico’s ‘The Tangled
Complexity of the EU Constitutional Process
, pp. 44 f) and renegotiate the
well-documented status of constitutional tolerance.