compatible with the Constitution, since they do not sufficiently meet the specific
needs for protection of independent foreign journalists (cf. in this respect United Nations Office of the High Commissioner for Human Rights, letter of the Special Rapporteurs of 29 August 2016, OL DEU 2/2016, pp. 5 and 6).
F.
Contrary to the complainants’ view, no further requirements derive from the fundamental rights of the European Union, notwithstanding the question to what extent the
competence to conduct such a review in the case at hand falls to the Federal Constitutional Court. Even if, in light of Art. 15 of Directive 2002/58/EC, the challenged provisions were in part considered to be implementing EU law within the meaning of Art.
51(1) first sentence of the Charter of Fundamental Rights of the European Union,
there would be no specific and sufficient indication that the fundamental rights of the
Basic Law, in the interpretation set out here, do not simultaneously ensure the level
of protection of the Charter according to the CJEU’s case-law (cf. BVerfG, Order of
the First Senate of 6 November 2019 - 1 BvR 16/13 -, para. 67 et seq. – Right to be
forgotten I). In particular with regard to the power to retain and analyse traffic data,
such indication does not follow from the CJEU’s decisions concerning the Data Retention Directive (Judgment of 8 April 2014, Digital Rights Ireland and Seitlinger and
Others, C-293/12, C-594/12, EU:C:2014:238) and concerning data retention powers
of the Member States (Judgment of 21 December 2016, Tele2 Sverige and Watson
and Others, C-203/15 and C-698/15, EU:C:2016:970). Those decisions concern the
domestic interception of telecommunications traffic data in its entirety, which makes
it possible to compile almost complete personality profiles of individual communication participants. This differs fundamentally from powers to collect a limited volume of
traffic data stemming from foreign communications and selected networks – which
generally does not allow for the interception of all parts of the communication relations of affected persons. Therefore, in the context of a European regime of fundamental rights protection that seeks to accommodate diversity, it is not ascertainable
that the fundamental rights of the Basic Law do not simultaneously ensure the level
of protection of the Charter of Fundamental Rights.
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G.
I.
In light of the foregoing, §§ 6, 7 and 13 to 15 BNDG are unconstitutional. Insofar as
they concern data collected on the basis of the aforementioned provisions, §§ 19,
24(1) first sentence, 24(2) first sentence and 24(3) BNDG are also unconstitutional.
They violate the fundamental rights under Art. 10(1) GG of complainants nos. 2 to 8
and the fundamental rights under Art. 5(1) second sentence GG of complainants nos.
2 to 7. Thus, there is no longer a basis for applying §§ 9 to 11, 16, 19, 20, 22, 32 and
32a BNDG, which do not sufficiently satisfy the requirements according to which they
must provide for proportionate limits, in line with the rule of law, to the powers that
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