Nor is the challenge to § 95.4 TKG admissible. Admittedly, the constitutional complaint expressly challenges this provision, but it does not deal factually with its contents, and it therefore fails to satisfy the requirements of § 23.1 sentence 2, § 92
BVerfGG.
97
Finally, the constitutional complaint is also inadmissible with regard to the power under § 112.3 TKG to issue a statutory instrument, which is inter alia to provide for the
procedure and extent of a search with a similarity function. Since such a statutory instrument on the basis of § 112.3 TKG has not yet been issued, the complainants are
not directly and presently affected by the provision.
98
II.
Apart from this, the constitutional complaint is admissible.
99
1. The complainants admissibly challenge a violation of the right to informational
self-determination under Article 2.1 in conjunction with Article 1.1 of the Basic Law
and of the secrecy of telecommunications under Article 10.1 of the Basic Law. They
use prepaid mobile phone cards and internet access services and submit that the
storage of their data and the possibility that these are transmitted under the information procedure of §§ 112 and 113 TKG violate their fundamental right to informational
self-determination and to preservation of the secrecy of telecommunications. Notwithstanding the question of the precise delimitation of these fundamental rights, it is at all
events possible that one of the two fundamental rights of the complainants is violated
by the challenged provisions.
100
2. The challenged provisions also affect the complainants directly, personally and
presently. Admittedly, the duties to store data, make data available and supply information of §§ 111 to 113 TKG are not directed to the complainants, who are affected
as users, but to the service providers or the Federal Network Agency. However, these
have an absolute duty, without any latitude of decision, to store the complainants’ data and to supply information. The challenged provisions therefore result directly and
presently in the storage and use of the complainants’ data (see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 125, 260 <304-305>).
101
The fact that §§ 112 and 113 TKG only take effect on the basis of further acts of performance in the form of requests or demands for information and the subsequent supply of information does not mean that the complainants are not directly and personally
affected. Since the complainants do not obtain knowledge of the acts of performance,
the submissions are sufficient to show that there is some probability that they are affected by such measures. In this connection, it is particularly relevant that the information made possible by § 112.2 and § 113.1 TKG has a great range and may also
include outsiders by chance. Submissions in which the complainants would be obliged to incriminate themselves are unnecessary to show that they are personally affected, and equally unnecessary is a submission that they are responsible for activities
102
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