As Darkness Deepens: The Right to be Forgotten in the Context of Authoritarian Constitutionalism

Abstract

There is no point in denying the significance of the Right to be forgotten for the state of judicial dialogue in Europe. It vindicates the position of the BVerfG as a court deserving international recognition for advancing the law in the crucial field of data protection. Nevertheless, restricting the scope of analysis to the narrow context of judicial dialogue misses the wider context of the rise of authoritarian constitutionalism in certain EU Member States. In this respect, it is of the highest significance that the decisions on the Right to be forgotten effectively eliminate the imagined normative hierarchy between domestic and EU law that provided the basis for the BVerfG’s jurisprudence ever since Solange I and Maastricht. Moreover, by reasserting the primacy of EU law, the BVerfG strengthens the position of embattled judges in Poland facing disciplinary action for implementing the primacy of EU law. The concern shown by some members of the First Senate for the situation in Poland corroborates this reading.