information to access data which are subject to the secrecy of telecommunications is
permissible only under the requirements of the statutory provisions (see § 113.1 sentence 3 TKG).
d) The wording of §§ 111 to 113 TKG follows earlier provisions in the Telecommunications Act 1996. Even § 90 TKG 1996 imposed an obligation on telecommunications
enterprises to keep customer databases which could be retrieved in an automated information procedure. In the same way, § 89.6 TKG 1996 imposed a duty on the service providers in a similar scope to that in § 113.1 sentence 1 TKG to supply information to state agencies in an individual case. According to a judgment of the Federal
Administrative Court (Bundesverwaltungsgericht) of 22 October 2003 (Decisions of
the Federal Administrative Court (Entscheidungen des Bundesverwaltungsgerichts –
BVerwGE) 119, 123), however, § 90.1 TKG 1996 contained no duty to collect the
customer data, but related solely to data which were permissibly collected in any case
by the service providers in their own interest. This was of particular importance for
what are known as prepaid products, in the case of which – for example in mobile
communications – the customer acquires a credit balance in advance, which may
then be spent by the use of telecommunications services. Depending on the structure
of the services and contractual arrangements, it was possible in this way that
telecommunications enterprises did not need to know the identity of their customers
and in this way telecommunications services could be used anonymously and without
the possibility of attributing them to subscribers. The reform of the law is intended to
counteract this by the obligation to collect and store data under § 111 TKG.
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e) The complainants additionally specifically challenge § 95.3 TKG, which they regard as inadequate; it provides that when the contractual relationship comes to an
end, the data stored under § 95.1 TKG are to be deleted at the end of the following
calendar year. They also challenge § 95.4 TKG, which entitles the service providers
to require their customers to submit an official identification document and to make a
copy of this, which is later to be destroyed.
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2. The provisions which are at the centre of the challenges read as follows in the relevant version of 21 December 2007, which entered into force on 1 January 2008 and
whose §§ 111 and 113.1 TKG continue in application today:
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§ 111 TKG
15
(1) A person who commercially provides telecommunications services or is involved
in this and in the process issues telephone numbers or other line identification numbers or provides telecommunications connections for telephone numbers issued by
others or other line identification numbers shall, for the information procedure under
§§ 112 and 113, before activation collect and without undue delay store, even where
these data are not necessary for operational purposes,
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1. the telephone numbers and other line identification numbers,
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2. the name and the address of the subscriber,
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