sel to the Investigatory Powers Commissioner’s Office of the United Kingdom. As expert third parties, the Court heard the Judge at the Federal Court of Justice (Bundesgerichtshof) Gabriele Cirener as the former chair of the Independent Body, the eco
Association of the German Internet Industry e.V., T-Systems International GmbH and
the Chaos Computer Club e.V.
B.
The constitutional complaint is admissible.
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I.
The complainants lodged a constitutional complaint against statutes
(Rechtssatzverfassungsbeschwerde) challenging powers to carry out surveillance
and to share data which are conferred upon the Federal Intelligence Service for the
surveillance of foreign telecommunications. The complainants directly challenge the
respective provisions conferring the powers in question upon the Federal Intelligence
Service, but they also indirectly challenge further provisions which provide a framework to ensure the proportionality of these powers and without which their constitutionality cannot be assessed. Based on a reasonable interpretation, the constitutional
complaint thus directly challenges §§ 6, 7 and §§ 13 to 15 BNDG, but to assess these
provisions, §§ 9 to 11 and §§ 16, 20, 22, 32, 32a BNDG must also be incorporated
into the review. As the latter provisions give specific shape to the challenged powers,
the Court’s review must include them and determine whether they are applicable and
tenable under constitutional law. In addition, the complainants challenge § 19(1) and
§ 24 BNDG as well as further provisions referred to therein to the extent that they are
applicable to the handling of data obtained through strategic surveillance pursuant to
§§ 6, 7 and 13 to 15 BNDG.
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II.
The complainants have standing.
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1. The complainants assert a violation of their fundamental rights under Art. 10(1),
Art. 5(1) second sentence and Art. 3(1) GG. […]
[…]
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2. Complainants nos. 1 to 7 do not lack standing on the grounds that they are a foreign legal entity or foreigners living abroad who are invoking the fundamental rights
of the Basic Law. As of yet there has been no definitive answer to the question if and
to what extent citizens of other states can invoke the fundamental rights of the Basic
Law to challenge measures of the German state in other countries. In its decision of
14 July 1999, the Federal Constitutional Court neither made a positive determination
in this regard, nor did it rule this out (cf. Decisions of the Federal Constitutional Court,
Entscheidungen des Bundesverfassungsgerichts – BVerfGE 100, 313 <362 et
seq.>). Thus, a violation of fundamental rights appears at least possible.
22/87
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