When determining whether the constitutional complaint is admissible, there is no
need to decide if or to what extent this matter falls within the scope of application of
EU law. This is because, in any case, complainant no. 1 demonstrated that a right
might have been violated in respect of which they can lodge a constitutional complaint (cf. BVerfGE 125, 39 <73>; 129, 78 <91>). It is not necessary to request a preliminary ruling from the Court of Justice of the European Union pursuant to Art. 267(3)
TFEU given that the constitutional complaint is admissible in any case and that the
question is not decisive for determining whether the constitutional complaint is wellfounded (see para. 328 below).
66
b) By their nature, the asserted fundamental rights, Art. 10(1) GG, Art. 5(1) second
sentence GG and Art. 3(1) GG, are applicable to legal entities as provided for by Art.
19(3) GG (cf. regarding Art. 10(1) GG: BVerfGE 100, 313 <356>; 106, 28 <43>; regarding Art. 5(1) second sentence GG: BVerfGE 80, 124 <131>; 95, 28 <34>; 113,
63 <75>; regarding Art. 3(1) GG: BVerfGE 21, 362 <369>; 42, 374 <383>; 53, 336
<345>).
67
4. Complainants nos. 6 and 8 do not lack standing on the grounds that they act on
behalf of foreign legal entities (Funktionsträger), which, pursuant to Art. 19(3) GG,
are not themselves holders of fundamental rights.
68
[…] It is true that persons acting on behalf of legal entities can only invoke their own
fundamental rights; they cannot invoke fundamental rights of the legal entities on
whose behalf they act. However, insofar as their own fundamental rights are affected,
they cannot be deprived of protection merely because they act on behalf of a foreign
legal entity that cannot invoke the fundamental rights of the Basic Law under Art.
19(3) GG ([…]). […]
69
[…]
70
III.
The challenged provisions affect the complainants directly, individually and presently. Their constitutional complaint thus satisfies the requirements for constitutional
complaints lodged directly against a statute.
71
1. The complainants are directly affected. It is true that the challenged powers require further implementation measures. However, it must also be assumed that persons are directly affected by a law requiring implementation in cases where seeking
legal recourse is not possible because they have no way of knowing whether the implementation measure was carried out, or where ex post disclosure is provided for,
but can be refrained from, even in the long term, based on broad exceptional grounds
(BVerfGE 150, 309 <324 para. 35> with further references; established case-law).
[…]
72
2. The challenged provisions also affect the complainants individually and presently.
73
24/87