Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
In addition, the Federation must also ensure that there is a sufficiently precise restriction of the purposes 266
of data use served by the storage which satisfies constitutional requirements. The reason for this lies in
the indissoluble constitutional connection between data storage and purpose, as is held in established
case-law of the Federal Constitutional Court: Data may from the outset be stored only for particular
purposes, relating to a specific area, in precise and well-defined provisions, and it is therefore sufficiently
guaranteed at the time of storage that the data will be used only for such purposes as justify the weight of
the storage. There can be no abstract justification of storage in itself; it can be justified only where it
serves sufficiently important and concretely named purposes (see BVerfGE 65, 1 (46); 118, 168 (187188)). In contrast, it is not permissible to create a data pool in advance, independent of such purposes,
whose use is left to later decisions of various state instances, depending on their requirements and
political discretion. In such a case, the constitutionality of the storage could not yet be assessed, for lack of
sufficiently foreseeable and restricted purposes, at the date of the encroachment constituted by the
storage. In addition, its scope would be neither foreseeable to citizens nor restricted in accordance with
the principle of proportionality. In the interaction of the Federation and the Länder too, this substantive
connection between storage and purpose of use of the data as the crucial link between encroachment and
justification may not be severed. The competence to guarantee this link accrues to the Federation under
Article 73.1 no. 7 GG by virtue of factual connection (see above C III 2).
The provisions to be made by the Federation in this regard in connection with the storage include 267
drafting the qualified requirements for use of the data for the purpose of criminal prosecution, warding off
of danger or preventing danger by the intelligence services under the conditions developed above. They
also include the necessary provisions to ensure that the further use of the data remains limited to specific
purposes, in particular in the form of duties of labelling and recording.
b) In contrast, when the Federation passes provisions on the duty of storage, it does not automatically 268
also have the responsibility as to whether and to what extent the data may be resorted to in connection
with the purposes to be provided by the Federation. The passing of provisions governing the retrieval of
data itself is no longer fundamentally the responsibility of the Federation, but follows the general rules on
legislative competence. According to these, the authorisation to retrieve the data cannot be based on
Article 73.1 no. 7 GG, but is to be granted in each case on the basis of the rule on jurisdiction which
governs the legislation on the tasks for which the data is to be used (see BVerfGE 113, 348 (368); 114,
371 (385)). In the area of warding off danger and of the duties of the intelligence services, the
responsibility is thus largely with the Länder . The constitutionally required restriction of the purposes of
use must be provided for concurrently with the storage, by reason of the link between encroachment and
justification under data protection law; unlike this, not only the authorisation of retrieval, but also the further
constitutional requirements of the formulation of the data use, such as in particular the provisions on the
notification of the persons affected and the guarantee of effective legal protection, can and must be left to
later acts of legislation of the Länder . In this connection, the Länder themselves bear direct responsibility
for the constitutionality of these provisions.
VI.
The challenged provisions do not satisfy these requirements. Admittedly, the reason why § 113a TKG 269
conflicts with the fundamental right to protection of the secrecy of telecommunications under Article 10.1
GG is not simply that the scope of the duty of storage under §§ 113a.1 to 113a.7, 11 TKG would have to
be considered disproportionate from the outset. But the provisions on data security, on the purposes and
the transparency of the use of data and on legal protection do not satisfy the constitutional requirements.
In consequence, the whole legislation lacks a structure complying with the principle of proportionality. §§
113a, 113b TKG and § 100g StPO, insofar as the latter permits the retrieval of the data to be stored under
§ 113a TKG, are therefore incompatible with Article 10.1 GG.
https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2010/03/rs20100302_1bvr025608en.html
Seite 35 von 53