3. Complainant no. 1 also does not lack standing on the grounds that it is a legal
entity based abroad. The complainant sufficiently demonstrates that the extension of
fundamental rights protection to legal entities based in the European Union may apply to it (see a) below). By reason of their nature, the fundamental rights invoked by
the complainant meet the requirements regarding the applicability of Art. 19(3) GG
(see b) below).
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a) Based on the European Treaties, the Federal Constitutional Court’s case-law
recognises that fundamental rights protection may be extended to legal entities
based in the European Union. Legal entities based in other EU countries are afforded
the same treatment as domestic legal entities as regards fundamental rights if the
affected EU legal entity operates within the scope of application of EU law and if it
has a sufficient link to domestic matters that makes it appear necessary that the fundamental rights apply to it in the same way as they apply to domestic legal entities
(cf. BVerfGE 129, 78 <94 et seq.>).
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Based on the foregoing, an extension of fundamental rights protection to the complainant as a foreign legal entity must at least be considered. In the present case, a
link to domestic matters that gives rise to a need for protection on the part of complainant no. 1 can be inferred from the fact that the challenged provisions provide a
basis for carrying out surveillance from within Germany and also give effect to an interest of German authorities in obtaining information about activities undertaken
abroad by persons under surveillance; thus, the complainant becomes a specific target of surveillance.
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Moreover, the complainant’s activities potentially fall within the scope of application
of EU law as is required for an extension of fundamental rights protection to the complainant. This possibility must be considered, for instance, because the complainant
makes use of the fundamental freedoms guaranteed to it under primary law when it
accepts cross-border services, thus exercising its passive freedom to provide services enshrined in Art. 56 TFEU. However, under Art. 4(2) third sentence TEU, national security in particular remains the sole responsibility of the individual Member
State, which could result in certain activities not falling within the scope of EU law, at
least with regard to some of the tasks of the Federal Intelligence Service. If and to
what extent that is the case has not yet been determined under EU law either (cf.
Reference for a preliminary ruling from the Investigatory Powers Tribunal London
[United Kingdom] made on 31 October 2017, Privacy International, C-623/17, OJ EU
2018/C 022/41; Reference for a preliminary ruling from the Conseil d’État [France]
made on 3 August 2018, La Quadrature du Net and Others, C-511/18, OJ EU 2018/
C 392/10 and French Data Network and Others, C-512/18, OJ EU 2018/C 392/11 regarding Directive 2002/58/EC of the European Parliament and of the Council of 12
July 2002 concerning the processing of personal data and the protection of privacy in
the electronic communications sector – Directive on privacy and electronic communications, OJ EU 2002/L 201/37, hereinafter: Directive 2002/58/EC).
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