[…]
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IV.
The constitutional complaint satisfies the requirements arising from the principle of
subsidiarity.
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1. Under the principle of subsidiarity, complainants are, in principle, obliged to use
any means at their disposal that might remedy the asserted violation of fundamental
rights; this also applies to lodging a constitutional complaint against statutes. Legal
remedies that are appropriate (zumutbar) in this context may also include a declaratory action or injunctive relief, which allow for review of decisive factual or legal questions of ordinary law by ordinary courts (for a general overview see, most recently,
BVerfGE 150, 309 <326 et seq. para. 41 et seq.> with further references). However,
the situation is different where only limits to the interpretation of statutes are concerned that directly follow from the Constitution. A prior decision by ordinary courts is
not required insofar as the assessment of a statute only raises questions of a constitutional nature that must be answered by the Federal Constitutional Court and when
a prior review by the ordinary courts will probably not provide a better basis for its
decision (cf. BVerfGE 123, 148 <172 and 173>; 143, 246 <322 para. 211>; established case-law). In this respect, it remains true that constitutional complaints lodged
directly against a statute are mostly admissible even without prior recourse to the ordinary courts (cf. BVerfGE 150, 309 <326 and 327 para. 44>).
78
2. Based on these considerations, the complainants were not required to first have
recourse to the ordinary courts. […]
79
Furthermore, due to the current case-law of the administrative courts, legal protection in this matter could not be achieved in practice. The Federal Administrative Court
has previously declared inadmissible actions regarding strategic telecommunications
surveillance on the grounds that the plaintiffs could not point to sufficiently specific
measures carried out by the Federal Intelligence Service (cf. Decisions of the Federal
Administrative Court, Entscheidungen des Bundesverwaltungsgerichts – BVerwGE
157, 8 <12 and 13 para. 16 et seq.>; 161, 76 <78 para. 14>); it cannot be ascertained
that the complainants in the case at hand could have satisfied those requirements.
80
V.
The constitutional complaint was also lodged within the time limit set out in § 93(3)
of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG).
[…]
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82-83
VI.
Since the surveillance of foreign telecommunications does not concern the implementation of binding EU law, the assessment of whether the challenged provisions
25/87
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