(cf. BVerfGE 109, 279 <308>; 113, 348 <363>; 120, 378 <396>).
The complainant’s arguments satisfy these requirements. It is true that the complainant can only incompletely demonstrate that there is a specific probability that he
is affected by the storage of data. Essentially, he only mentions being in contact to
persons who may be affiliated with terrorism. However, given the broad range of persons who may be affected by storage of data in the counter-terrorism database, his
arguments are still sufficient. Under § 2 sentence 1 ATDG, data are collected not only
about persons suspected of terrorism and their supporters, but to a large extent also
about persons merely deemed to belong to the environs of persons thought to be involved with terrorism, and even persons who have merely had contact with them – including those who know nothing of any connection between their contact person and
terrorism.
87
C.
The constitutional complaint provides no reason for a preliminary ruling from the European Court of Justice under Art. 267 TFEU to clarify the reach of fundamental rights
under Union law with regard to the transfer of data among various security agencies
in the context of a joint database, such as the one governed by the Counter-Terrorism
Database Act. This also applies with regard to the fundamental right to the protection
of personal data under Art. 8 of the Charter of Fundamental Rights of the European
Union (Charter of Fundamental Rights – EUCFR). The European fundamental rights
under the EUCFR are not applicable in the case at hand. The challenged provisions
must be measured against the fundamental rights under the Basic Law, if only because they are not governed by Union law (cf. BVerfGE 118, 79 <95>; 121, 1 <15>;
125, 260 <306 and 307>; 129, 78 <90 and 91>). Accordingly, this is also not a case of
implementation of European Union law, which alone could result in the Member
States’ being bound by the Charter of Fundamental Rights (Art. 51 sec. 1 sentence 1
EUCFR).
88
However, the challenged provisions do concern enabling a transfer of data in order
to combat international terrorism, and therefore raise questions which do in part concern areas that are regulated by Union law. Under Art. 16 TFEU for example, the European Union has powers of its own concerning provisions on data privacy. For example, Directive 95/46/EC of the European Parliament and of the Council of 24
October 1995 on the protection of individuals with regard to the processing of personal data and the free movement of such data (OJ L 281 of 23 November 1995, pp. 31
et seq. – the Data Privacy Directive) states significant requirements for data processing that, in general, apply to both private parties and public authorities. Union law also
contains various competences and legal bases related to the protection against terrorism. In particular, Art. 2 of Council Decision 2005/671/JHA of 20 September 2005
on the exchange of information and cooperation concerning terrorist offences (OJ L
253 of 29 September 2005, pp. 22 et seq.) provides that subject to national law, the
Member States must transmit to Eurojust, Europol and the other Member States all
89
17/45