Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
I.
The constitutional complaints give no occasion for referral for a preliminary ruling before the European 185
Court of Justice under Article 267 of the Treaty on the Functioning of the European Union. It is true that
such proceedings instituted by the Federal Constitutional Court (see BVerfGE 37, 271 (282)) might
particularly come into consideration when it is necessary to answer questions on the interpretation or the
validity of Community or European Union law, which has priority over domestic law and whose
implementation the Federal Constitutional Court in principle does not review by the yardstick of the
fundamental rights of the Basic Law. However, such a referral is only admissible and appropriate when the
crucial factor is the interpretation or validity of European Union law. That is not the case here.
The validity of Directive 2006/24/EC and a priority of Community law over German fundamental rights 186
which might possibly result from this are not relevant to the decision. The contents of the Directive leave to
the Federal Republic of Germany a broad discretion in shaping the storage of telecommunications traffic
data for which it provides. The Directive imposes on the Member States an obligation to require the
operators of publicly accessible electronic communications networks and communications services to
store virtually all telecommunications traffic data for a period of at least six months (Articles 1, 3, 5 and 6
Directive 2006/24/EC). But in doing this, its provisions are essentially limited to the duties of storage
themselves, and do not govern access to the data or the use of the data by the Member States’
authorities. In particular, they harmonise neither the issue of access to data by the national authorities
competent for criminal prosecution nor the issue of the use and the exchange of those data between those
authorities (cf. ECJ, judgment of 10 February 2009 – C-301/06 –, 83). Proceeding on the basis of the
minimum requirements of the Directive (Articles 7 and 13 Directive 2006/24/EC), it is also for the Member
States to take the necessary measures to guarantee data security, transparency and legal protection.
With these contents, the Directive can be implemented in German law without violating the fundamental 187
rights of the Basic Law. The Basic Law does not prohibit such storage in all circumstances. On the
contrary, even independent of any priority of Community law, it may permissibly be ordered in compliance
with the fundamental rights enshrined in the Basic Law (see IV below). A review of the challenged
provisions as a whole by the yardstick of German fundamental rights is therefore not in conflict with
Directive 2006/24/EC, and therefore the validity and priority of the latter is not relevant.
II.
The challenged provisions encroach upon Article 10.1 GG.
188
1. Article 10.1 GG guarantees the secrecy of telecommunications, which protects the incorporeal 189
transmission of information to individual recipients with the aid of telecommunications traffic (see BVerfGE
106, 28 (35-36); 120, 274 (306-307)) against the taking of notice by state authority (see BVerfGE 100, 313
(358); 106, 28 (37)). In this connection, this protection does not only relate to the contents of the
communication. On the contrary, the protection also covers the confidentiality of the immediate
circumstances of the process of communication, which include in particular whether, when and how often
telecommunications traffic occurred or was attempted between what persons or telecommunications
equipment (see BVerfGE 67, 157 (172); 85, 386 (396); 100, 313 (358); 107, 299 (312-313)); 115, 166
(183); 120, 274 (307)).
The protection of Article 10.1 GG applies not only to the first access by which state authority takes notice 190
of telecommunications events and contents. Its protective effect also extends to the information and data
processing procedures which follow the taking of notice of protected communications events, and to the
use that is made of the knowledge obtained (see BVerfGE 100, 313 (359)). An encroachment upon
fundamental rights includes every taking of notice, recording and evaluation of communications data, and
every analysis of their contents or other use by state authority (see BVerfGE 85, 386 (398); 100, 313
(366); 110, 33 (52-53)). The recording of telecommunications data, their storage, their comparison with
other data, their evaluation, their selection for further use or their transmission to third parties are therefore
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