are valid under constitutional law must be based on the fundamental rights of the Basic Law. Thus, the Federal Constitutional Court is competent to decide and the constitutional complaint is admissible in this respect. This applies irrespective of whether
EU fundamental rights may also be applicable (cf. BVerfG, Order of the First Senate
of 6 November 2019 - 1 BvR 16/13 -, para. 39 – Right to be forgotten I).
This does not have any bearing on the question whether further legal requirements
directly follow from secondary EU law, in particular from Art. 15(1) of Directive 2002/
58/EC with regard to the extent of the obligations imposed on telecommunications
providers. It is not for the Federal Constitutional Court to interpret and apply ordinary
EU legislation; this task is incumbent upon the ordinary courts in cooperation with the
Court of Justice of the European Union (cf. BVerfGE 148, 40 <48 and 49 para. 22>).
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C.
The constitutional complaint is well-founded. The challenged provisions must be
measured against the fundamental rights of the Basic Law; they amount to interferences with Art. 10(1) and Art. 5(1) second sentence GG (see I. to III. below). The
interferences are not justified because the challenged provisions are formally unconstitutional (see D. below). They also do not satisfy the key substantive requirements
arising from Art. 10(1) and Art. 5(1) second sentence GG (see E. below).
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I.
The fundamental rights of the Basic Law are binding upon the Federal Intelligence
Service and the legislator that sets out its powers, irrespective of whether the Federal
Intelligence Service is operating within Germany or abroad. The protection afforded
by Art. 10(1) and Art. 5(1) second sentence GG also applies to telecommunications
surveillance of foreigners in other countries.
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1. Art. 1(3) GG provides that German state authority is comprehensively bound by
the fundamental rights of the Basic Law. No restrictive requirements that make the
binding effect of fundamental rights dependent on a territorial connection with Germany or on the exercise of specific sovereign powers can be inferred from the provision. In any event, this holds true for the fundamental rights in their dimension as
rights against state interference which afford protection against surveillance measures; the present case concerns fundamental rights in this dimension.
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a) According to Art. 1(3) GG, the fundamental rights of the Basic Law bind the legislature, the executive and the judiciary as directly applicable law. The provision does
not contain an explicit restriction to German territory. There was also no unspoken
consensus at the time the Basic Law came into existence from which an exemption
could be derived according to which fundamental rights were not applicable to the
actions of German state organs abroad ([…]). Rather, particularly in response to the
Nazi reign of violence and tyranny, Art. 1(3) GG aimed to achieve a comprehensive
binding effect of fundamental rights rooted in human dignity; as early as 1949, the
provision was embedded in the conviction that the Federal Republic of Germany had
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