Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
a way that it imposes duties on private persons in the exercise of their occupation and in doing so normally
affects a large number of persons is not disproportionate simply because it unreasonably burdens
individual persons affected, but only if it violates the prohibition of disproportionate measures for a large
group of persons affected (see BVerfGE 30, 292 (316)). As to the suggestion that the cost burdens arising
in this manner have suffocating effects, this has neither been submitted with substantiation nor is it
apparent.
It is therefore not necessary to review further whether with regard to particular groups of cases (see 303
BVerfGE 30, 292 (327)) or special situations hardship provisions are necessary from the point of view of
proportionality. For at all events the submissions of the fourth complainant in the proceedings 1 BvR
256/08 do not support this in any way. In particular, with regard to anonymisation services, the fourth
complainant did not provide evidence of a burden exceeding that of the other telecommunications
enterprises either for itself or for other providers of such services in a sufficiently comprehensible manner
supported by specific figures. But it is only if this were done that it could be established that the scope of
legislative discretion was exceeded when the anonymisation services were engaged. As long as the
legislature’s assessment is called into question only by assumptions and allegations, the Federal
Constitutional Court cannot pursue this question (see BVerfGE 114, 196 (248)).
Nor is the duty of transmission under § 113b sentence 1 no. 1 TKG in conjunction with § 100g StPO 304
subject to any fundamental objections with regard to possible remaining cost burdens; the legislature has
provided provisions on compensation in this connection (see § 23.1 Court Payment and Reimbursement
Act (Justizvergütungs- und -entschädigungsgesetz – JVEG). the claims for reimbursement here provided
are not the subject of the present proceedings.
VIII.
Apart from this there are also no more extensive requirements of the challenged provisions arising from 305
the fundamental rights, insofar as the violation of those rights has been permissibly challenged.
IX.
The violation of the fundamental right to protection of the secrecy of telecommunications under Article 306
10.1 GG makes §§ 113a and 113b TKG void, as it does § 100g.1 sentence 1 StPO insofar as traffic data
under § 113a TKG may be collected under this provision. The challenged norms are therefore to be
declared void, their violation of fundamental rights having been established (see § 95.1 sentence 1 and §
95.3 sentence 1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG).
Accordingly, the telecommunications traffic data collected by the service providers under requests for
information on the basis of the temporary injunction of 11 March 2008 and 28 October 2008 but
provisionally not transmitted to the requesting authorities, which are stored, must be deleted without delay.
They may not now be transmitted to the requesting agencies.
The decision on the reimbursement of expenses is based on § 34a.2 of the Federal Constitutional Court 307
Act.
With regard to the questions of European law, the formal constitutionality and the fundamental 308
compatibility with the Basic Law of the precautionary storage of telecommunications traffic data, the
decision is unanimous. With regard to the assessment of §§ 113a and 113b TKG as unconstitutional, it
was passed by seven votes to one as regards its result, and with regard to further questions of substantive
law it was passed by six votes to two, to the extent shown in the dissenting opinions.
The Senate decided by four votes to four that the provisions are to be declared void under § 95.3 309
sentence 1 of the Federal Constitutional Court Act, and not merely incompatible with the Basic Law.
Accordingly, it is not possible for the provisions to continue in effect in a restricted scope; instead, the
statutory consequence is an annulment.
https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2010/03/rs20100302_1bvr025608en.html
Seite 43 von 53