cooperative relationship between the Federal Constitutional Court and the European
Court of Justice (cf. BVerfGE 126, 286 <307>), this decision must not be read in a
way that would view it as an apparent ultra vires act or as if it endangered the protection and enforcement of the fundamental rights in the Member States (Art. 23 sec. 1
sentence 1 GG) in a way that questioned the identity of the Basic Law’s constitutional
order (cf. BVerfGE 89, 155 <188>; 123, 267 <353 and 354>; 125, 260 <324>; 126,
286 <302 et seq.>; 129, 78 <100>). The decision must thus not be understood and
applied in such a way that absolutely any connection of a provision’s subject-matter
to the merely abstract scope of Union law, or merely incidental effects on Union law,
would be sufficient for binding the Member States by the Union’s fundamental rights
set forth in the EUCFR. Rather, the European Court of Justice itself expressly states
in this decision that the European fundamental rights under the Charter are “applicable in all situations governed by European Union law, but not outside such situations”
(ECJ, judgment of 26 February 2013, C-617/10, para. 19).
D.
The constitutional complaint is, in part, well-founded.
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I.
The challenged provisions interfere with the protection afforded by the right to informational self-determination (Art. 2 sec. 1 in conjunction with Art. 1 sec. 1 GG), the
right to secrecy of correspondence and telecommunications (Art. 10 sec. 1 GG) and
the right to inviolability of the home (Art. 13 sec. 1 GG).
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1. §§ 1 to 6 ATDG govern the storage and use of personal data, and therefore affect
the right to informational self-determination. If the data that were stored and used
were obtained by interfering with Art. 10 sec. 1 or Art. 13 sec. 1 GG, their subsequent
use must also be measured against these fundamental rights (cf. BVerfGE 125, 260
<313>; established case-law).
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2. The provisions interfere with these fundamental rights. A first interference lies in
that data from different sources are linked together by the obligation to store data under §§ 1 to 4 ATDG. This finding is not invalidated by the fact that the data had already been gathered elsewhere, because the data are being combined and
processed according to new criteria so as to make them available to agencies other
than those who gathered them, and for those other agencies’ purposes. Furthermore,
the provisions on the use of the data through searches under §§ 5 and 6 ATDG; on
access to the simple basic data in the event of a match under § 5 sec. 1 sentences 1
and 2, § 6 sec. 1 sentence 1 ATDG; and on access to the extended basic data in
emergencies under § 5 sec. 2, § 6 sec. 2 ATDG also interfere with these fundamental
rights.
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II.
The challenged provisions are formally compatible with the Constitution. In particu19/45
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