Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
2. The constitutional complaint of the fourth complainant in the proceedings 1 BvR 256/08 is also 179
admissible with regard to Article 12.1 GG to the extent that it is directed against the technical and financial
burdens which result from the duties of storage. As the provider of an anonymisation service, which also
operates a publicly accessible server, the complainant is in principle submitted to the duties under § 113a
TKG, without indemnification or compensation being provided for this. As sanctions of administrative fines
exist for non-observance of these duties (see § 149.1 no. 36, 149.2 TKG), it is also unreasonable to
expect the complainant to first await acts of execution, while infringing § 113a TKG in the meantime, and
then to seek recourse before the non-constitutional courts against such acts (see BVerfGE 81, 70 (82)).
Thus, the complainant is itself affected directly and presently as regards its occupational freedom,
II.
The constitutional complaints are not inadmissible to the extent that the challenged provisions have been 180
enacted implementing Directive 2006/24/EC.
The Federal Constitutional Court, however, in principle does not exercise its jurisdiction to decide on the 181
applicability of Community law, now Union law, that is relied on as a legal basis for any acts of German
courts or authorities by German courts and authorities in the sovereign territory of the Federal Republic,
and does not review such legislation by the standard of fundamental rights contained in the Basic Law, as
long as the European Communities (or today the European Union), in particular the case-law of the
European Court of Justice, generally ensure effective protection of fundamental rights which is to be
regarded as substantially similar to the protection of fundamental rights required unconditionally by the
Basic Law, and in so far as they generally safeguard the essential content of fundamental rights (see
BVerfGE 73, 339 (387); 102, 147 (162-163)). These principles also apply to domestic legal provisions that
implement mandatory requirements of a directive in German law. Constitutional complaints which
challenge the application of European Union law which is binding in this sense are in principle
inadmissible (see BVerfGE 118, 79 (95); 121, 1 (15)).
However, the complainants can rely on the fundamental rights contained in the Basic Law to the extent 182
that the legislature has discretion regarding the implementation of European Union law, i.e. that the
legislature’s action is not determined by European Union law (see BVerfGE 121, 1 (15)). Apart from this,
the present constitutional complaints are also admissible to the extent that the challenged regulations are
based on provisions of the Directive which have a mandatory character. The complainants assert that
Directive 2006/24/EC lacks a competence basis in Community law and that it infringes European
fundamental rights guarantees. They therefore seek inter alia a referral by the Federal Constitutional Court
to the European Court of Justice so that the latter may, by means of a preliminary ruling according to
Article 267 TFEU (formerly Article 234 TEC), declare the Directive void and thus open the way for a review
of the challenged regulations against the standard of the German fundamental rights; they were not able
to assert this before the non-constitutional courts because their constitutional complaints directly
challenged the implementing Act. At any rate, a review of the challenged regulations against the standard
of the fundamental rights contained in the Basic Law according to the relief sought by the complainants is
not excluded from the outset.
C.
The constitutional complaints are essentially well-founded. The challenged provisions violate the 183
complainants’ fundamental right under Article 10.1 GG. A referral to the European Court of Justice is out of
the question, since any potential priority of Community law is not relevant. The constitutional guarantees of
the Basic Law are not an obstacle to an implementation – in a different form – of Directive 2006/24/EC.
The constitutional complaint of the fourth complainant in the proceedings 1 BvR 256/08 is unfounded to 184
the extent that it challenges a violation of Article 12.1 GG.
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