in: Arndt/Fetzer/Scherer, TKG, 2008, § 113, marginal no. 6; Klesczewski, in: Säcker,
Berliner Kommentar zum TKG, 2nd ed. 2009, § 113, marginal no. 6). The contrary
view sees this as impermissible and permits information on it to be given only subject
to strict requirements, such as under § 100 of the Code of Criminal Procedure; Karlsruhe Higher Regional Court, judgment of 4 December 2008 – 4 U 86/07 –, Computer
und Recht (CR) 2009, pp. 373-374; Abdallah/Gercke, Zeitschrift für Urheber- und Medienrecht (ZUM) 2005, p.368 <373-374>; Bär, MMR 2005, pp. 626-627; Warg, MMR
2006, p. 77 <81>).
II.
The complainants use prepaid mobile phone cards and internet access services of
more than one supplier. They are of the opinion that their fundamental rights under
Article 10.1, Article 2.1 in conjunction with Article 1.1 and under Article 3.1 of the Basic Law are violated by the challenged provisions.
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They assert as follows: that it is relatively probable that they are affected by searches under §§ 112 and 113 TKG for data stored on themselves. They submit that it is
not improbable that persons who they know might be involved in investigation proceedings and in the course of these the complainants’ telephone numbers might be
examined. They would have no knowledge of search under §§ 112 and 113 TKG.
They submit that they cannot reasonably be expected to obtain information from all
authorities entitled under these provisions to search, particularly since, although nonconstitutional law gives rights of information with regard to stored data, it does not do
so in relation to the retrieval of data carried out in the past.
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They submit that Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection
with the provision of publicly available electronic communications services or of public
communications networks and amending Directive 2002/58/EC (OJ L 105 of 13 April
2006, p. 54; hereinafter referred to as Directive 2006/24/EC) does not make the constitutional complaint inadmissible. It does not mandatorily lay down the challenged
provisions; apart from this, there are also doubts as to the lawfulness of the Directive.
It was issued ultra vires and violates human rights to respect for private life and correspondence under Article 8 of the European Convention on Human Rights (ECHR)
and freedom of expression under Article 10.1 ECHR. Even if one accepts that there is
a duty of implementation, they submit, the constitutional complaint is admissible in order to enable reference to the Court of Justice of the European Union (CJEU) by the
Federal Constitutional Court to clarify whether it is valid.
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In the view of the complainants, the storage of telecommunications customer data
provided for in § 111 TKG and the possibilities of retrieval provided for in §§ 112 and
113 TKG violate Article 10.1 of the Basic Law. The secrecy of telecommunications also includes the collection and use of telecommunications customer data. Customer
data describe the individual communications events in more detail in that they provide
information on whether a communication medium was used and, if so, provide further
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