termine whether duties of notification or further measures such as the priority of data
collection from the person affected in particular cases might better be contained in
the retrieval provisions themselves.
D.
I.
The unconstitutionality of § 113.1 sentence 2 TKG does not result in a declaration of
nullity, but merely in the determination that it is incompatible with the Basic Law, together with the order that for a transitional period, but at the latest until 30 June 2013,
it may continue to be applied if the requirements for the use of the data it covers are
satisfied in the individual case.
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A mere declaration of incompatibility, attended by a transitional continuation in effect
of the unconstitutional provision, may be made if the immediate invalidity of the challenged provision would deprive the protection of paramount concerns of the public interest of its foundation and if weighing against the fundamental rights affected shows
that the encroachment may be tolerated for a transitional period (see BVerfGE 33, 1
<13>; 33, 303 <347-348>; 109, 190 <235-236>). This is the case here. If 113.1 sentence 2 TKG were declared null and void, the result would be that even in the cases in
which the authorities are lawfully entitled to have access to telecommunications data
to prevent or punish serious violations of legal interests it would not be sufficiently ensured that they were in the position to do this. Since the unconstitutionality of § 113.1
sentence 2 TKG relates to an encroachment of limited weight and the Basic Law is
not altogether opposed to supplies of information such as are created by this provision, this result is not acceptable even for a transitional period. Instead, it is sufficient
to order that the provision is to continue in effect for a transitional period and to subject it to the proviso that the data named in the provision may only be collected if the
requirements for their use are satisfied.
189
For the same reasons, a transitional provision is also needed with regard to the constitutional requirements of the interpretation of § 113.1 sentence 1 TKG, which, in
contrast to the present practice – to which the legislature oriented itself in its various
amendments of the Telecommunications Act and the Code of Criminal Procedure
(see BTDrucks 14/7008, p. 7; 16/5846, pp. 26-27; 16/6979, p.46) – result in substantial restrictions in dealing with the provision. If these requirements came into effect immediately, there would be a large number of cases in which information on telecommunications numbers could no longer be given in a large number of cases until new,
clearly drafted retrieval rules were issued in non-constitutional law. In addition, dynamic IP addresses could no longer be identified before a reform of the law. In view of
the importance of such information for the successful investigation of dangers and
criminal offences, the disadvantages of such a result are out of proportion to the provisional acceptance of a practice which, although it does not procedurally satisfy constitutional requirements, is in essence capable of justification. It is therefore neces-
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