Bundesverfassungsgericht - Decisions - Data retention unconstitutional in its present form
14.08.20, 10:44
communication towards electronic information traffic including its subsequent digital processing and
storage. For the effective prosecution of criminal offences and warding off of danger not only in the area of
serious crime but also for the investigation of criminal offences that even in an individual case are of
substantial importance or have been committed by means of telecommunications but are difficult to
investigate without access to traffic data, the availability of the traffic data for a period of six months is,
according to the legislature’s unobjectionable assessment, of great importance (see BVerfGE 115, 166
(192 et seq.); see also BVerfG, First Chamber of the Second Senate, order of 22 August 2006 – 2 BvR
1345/03 –, Neue Juristische Wochenschrift 2007, p. 351 (355)).
Accordingly, also the majority of the Senate acknowledges that the increased use of electronic or digital 325
means of communication and their invading virtually all areas of life makes the prosecution of criminal
offences and also the warding off of danger more difficult and that modern communications technologies
are increasingly used in connection with a wide variety of crimes and that they contribute to also making
criminal acts more effective. In the review of proportionality in the narrow sense it does not attach this
development the weight that is necessary in my view.
b) What is more, as regards the practical result, the majority of the Senate virtually completely restricts 326
the legislature’s latitude for assessment and drafting, which would permit it to pass appropriate and
reasonable provisions in the field of the investigation of crimes and the warding off of danger for the
protection of the population. In this way it also fails to take sufficient account of the requirement of judicial
self-restraint with regard to conceptual decisions of the democratically legitimated legislature. It prescribes
the legislature the details of a statutory regulation in the manner of an instruction to act which leaves
virtually no room for a solution that, according to the legislature’s assessment, takes account of the
existing circumstances in the area of telecommunications and the change that they have undergone.
The judgment finds that a storage duration of six months – that is, the minimum period called for by the 327
EC Directive – is at the upper limit and at best capable of being constitutionally justified; it dictates to the
legislature the technical rule that the provision on the purpose of use must at the same time contain the
requirements for access, restricts the legislature to providing for lists of offences in criminal law, excludes
the possibility of using the traffic data even to solve criminal offences that are difficult to investigate and
were committed by use of the means of telecommunications, and extends the duties of notification in a
specific manner. Following this, the legislature no longer has an appreciable discretion to legislate on its
own political responsibility. It is essentially restricted to slightly adapting and modifying peripheral sectors
of the list of criminal offences which justify data retrieval under the law of criminal procedure. It must
implement the judgment unless it intends to refrain from passing a new provision, which would be contrary
to Community law. Thus the judgment, as regards its practical result, substitutes legislation in that it even
prescribes the details of a provision which the Senate regards as the only one that is constitutionally
permissible.
3. The majority of the Senate demands that the legislature, when determining the purpose of use of the 328
data, has to achieve clarity about the requirements for access and about procedural safeguard
requirements. By doing so, it deprives the legislature of the possibility of operating, as regards the
technical rules, with a system of complementary legal foundations, something which has not been
objected to as yet in other areas. In what is known as its master account data decision, for example, the
Senate has not found it constitutionally objectionable that the retrieval must be necessary to perform
statutory duties which are provided elsewhere, that the cause of and the requirements for retrieval are,
however, determined in a different Act (see BVerfGE 118, 168 (191)). However, in its decision on what is
known as automatic number plate recognition, the Senate regarded the indications concerning the
purpose of use as insufficient; the challenged Act did not make a statement on the purpose of use, thus
including all conceivable purposes of use (see BVerfGE 120, 378 (409)). This, however, is different here (§
113b TKG). It therefore benefits precisely the clarity of statutory provisions if the legal preconditions and
provisos which result in the considerable intensification of the encroachment by the retrieval of the data
are provided for in an area-specific manner in independent systems of provisions that relate to the
https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2010/03/rs20100302_1bvr025608en.html
Seite 48 von 53