law, the responsibility in the law relating to competence for the data transmission of
an authority, in particular a federal authority, is that of the Federal Government.
In contrast, the legislative competence ends where the retrieval of such information
is concerned. The authorizations for data retrieval itself need an independent legal
basis or must be left to the Länder (see BVerfGE 125, 260 <315>).
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b) Proceeding on this basis, there are no objections to § 112 TKG under the law relating to competencies.
149
aa) As stated, § 112 TKG is not to be understood as legislation in full which at the
same time supplies the legal basis for the requests of the specialised authorities and
of the courts, which is a necessary requirement of the provision (see C. I. 2. b
above)). Using the image of the double door, § 112 TKG opens the door of transmission, but not also the door of data collection by the specialised authorities.
150
bb) In contrast, § 112.4 TKG – in addition to making the data available in § 112.1
TKG and authorising access to these data – provides on the one hand for the authority to transmit data and in connection therewith defines their purpose and their potential target group. On the other hand, it also provides for a duty of transmission on the
part of the Federal Network Agency. Since the provision creates an exchange of data
between authorities, but not a duty of private persons to supply information, this is
constitutionally unobjectionable. Accordingly, conversely, a sufficient legal basis for a
request by the authorities desiring information is also provided by provisions which
merely give general authority to collect personal data but in themselves do not create
a duty of information.
151
(1) In § 112 TKG, the legislature provides for an exchange of information between
authorities. In contrast to the demand under § 113.1 TKG, a request under § 112.4
sentence 1 TKG is defined not as a desire for information addressed to the individual
telecommunications service provider, but as a desire for information addressed to the
Federal Network Agency itself, which not merely transmits the information, but itself
issues it. As a result, the Federal Network Agency, in a similar way to the Federal Motor Transport Authority (Kraftfahrt-Bundesamt) in the field of vehicle and vehicle owner data and of the data relevant to driving licences, is directed to keep the attribution
of telecommunications numbers and other line identification numbers available for
public purposes in the form of a register and to supply information on this. The fact
that the data are not stored by the Federal Network Agency itself, but by the enterprises, which make them available for retrieval by the authority, does not alter this in any
way. On the contrary, this is only a different technical form of administration of numbers by the Federal Network Agency. This is made clear by the fact that the data are
made available in a form laid down in detail and standardised by the Federal Network
Agency and their retrieval and transmission are then carried out by the latter direct to
the requesting authorities, not only without any collaboration, but without the knowledge of the telecommunications enterprises.
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