performance of government duties, however, a distinction must also be made between data transfer by the party supplying the information and data retrieval by the
agency seeking the information. A data exchange takes place through the encroachments of retrieval and transfer, which correspond to each other and each of which
requires an independent legal basis. Figuratively speaking, the legislature must open
not only the door for the transmission of data, but also the door for their retrieval. It
is only both legal bases together, which must operate together like a double door,
which give authority to exchange personal data. This does not exclude – subject to
the system of competencies and the requirements of clear drafting – the possibility of
both legal bases being contained in one provision.
b) The challenged provisions encroach upon the complainants’ fundamental right to
informational self-determination. Firstly, there are encroachments upon the duty of
collection and storage of § 111 TKG. There are independent further encroachments
upon fundamental rights by the duty of service providers laid down in § 112.1 TKG to
make the data available as customer databases which can be accessed in an automated procedure and by the authority of the Federal Network Agency to retrieve
these data and to transmit them to particular authorities (see § 112.4 TKG). Accordingly, § 113.1 sentences 1 and 2 TKG create independent encroachments upon fundamental rights by imposing on the telecommunications service providers a duty to
provide information on demand with regard to the data stored by themselves.
124
Finally, § 112 and § 113 TKG are subject to prior retrieval of the data by the authorities entitled to retrieve, in the form of a request (§ 112.1, 112.2, 112.4 TKG) or a demand (§ 113.1 TKG); this constitutes an independent encroachment which must be
distinguished from the foregoing. But under the legislature’s legislative concept, this
also requires a further legal basis, which must be contained in federal or Land legislation, depending on the area involved. The provisions of §§ 112 and 113 TKG – corresponding to the distinction between collection and transmission in the legislative typology of the data protection Acts – are to be understood solely as the legal basis for
the transmission. They presuppose that the authorities entitled to receive information
have independent powers of collection (see Bock, in: Geppert/Piepenbrock/Schütz/
Schuster, Beck’scher Kommentar zum TKG, 3rd. ed. 2006, § 112, marginal no. 28,
§ 113 marginal nos. 9 ff.; Graulich, in: Arndt/Fetzer/Scherer, TKG, 2008, § 112, marginal nos. 8, 18; Klesczewski, in: Säcker, Berliner Kommentar zum TKG, 2nd ed.
2009, § 113, marginal no. 4).
125
II.
The duty of storage of § 111 TKG is constitutionally unobjectionable to create a data
basis for the information procedures laid down in § 112 and § 113 TKG.
126
1. § 111 TKG is not objectionable with regard to procedural constitutionality. Under
Article 73.1 no. 7 of the Basic Law, the federal legislature is competent to pass the
legislation.
127
26/45