which endanger security or are of relevance to intelligence (see BVerfGE 125, 260
<305>).
The constitutional complaint is not time-barred. It is true that there were already both
an automated information procedure and a manual information procedure in the
Telecommunications Act 1996. The provisions challenged in the present case, however, fundamentally restructure these information procedures and change their significance, in particular through their connection with a newly defined duty of data collection. The one-year period of § 93.3 BVerfGG therefore began to run again when this
statute entered into force on 26 June 2004 (see BVerfGE 11, 351 <359-360>; 74, 69
<73>; 78, 350 <356>). The constitutional complaint received by the Federal Constitutional Court on 21 June 2005 is therefore within the time limit, as is the application received on 1 February 2008 to extend the constitutional complaint to include the
amendments of §§ 111 and 112 TKG which entered into force on 1 January 2008.
103
3. The constitutional complaint is not inadmissible with regard to higher-ranking law
of the European Union.
104
However, in principle the Federal Constitutional Court does not review domestic
provisions which implement mandatory requirements of European Union law in German law against the standard of fundamental rights of the Basic Law; constitutional
complainants directed against these are in general inadmissible (see BVerfGE 118,
79 <95>; 121, 1 <15>; 125, 260 <306>). In addition, the constitutional complaint, insofar as it challenges § 111.1, 111.2 TKG, challenges a provision which is essentially
determined by European Union law. The extent of the duty of storage contained in
§ 111.1, 111.2 TKG and challenged by the complainants is likely – at least in essence
– to be controlled under European Union law by Article 5 of Directive 2006/24 EC.
105
Nevertheless, the constitutional complaint is also admissible in this connection. The
complainants – with submissions identical to those in the proceedings 1 BvR 256/08
and others, which the first complainant at times conducted in parallel and in relation to
the same Directive (see BVerfGE 125, 260) – submit that the Directive named is invalid and seek a reference by the Federal Constitutional Court to the Court of Justice
of the European Union, in order that the latter, in a preliminary ruling under Article 267
TFEU, declares the Directive null and void and thus opens the way for a review of the
challenged provisions by the standard of German fundamental rights. In this way, it is
not from the outset ruled out that the provisions challenged by them directly and without further possibilities of redress can be reviewed against the standard of the Basic
Law (see BVerfGE 125, 260 <306-307>). With regard to European Union law, there
are no doubts as to the admissibility of the challenges of § 112 and § 113 TKG among
other reasons because the German legislature is not subject to any mandatory requirements of European Union law in drafting provisions on the use of data. These
provisions are therefore to be reviewed without restriction against the standard of
German fundamental rights.
106
21/45