are being declared unconstitutional.
There is no need to determine whether the challenged provisions violate the fundamental rights of complainant no. 1 as a legal entity based in an EU Member State.
The declaration of incompatibility with the Basic Law, which has the force of law pursuant to § 31(2) second sentence BVerfGG, provides the legal protection sought by
complainant no. 1, at least in substance and to the same extent as could be achieved
if complainant no. 1 were considered a holder of fundamental rights.
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II.
The finding that a statutory provision is unconstitutional generally results in a declaration that it is void. However, pursuant to § 31(2) second and third sentence BVerfGG, the Federal Constitutional Court can choose to declare only that an unconstitutional provision is incompatible with the Basic Law (cf. BVerfGE 109, 190 <235>). It
then merely objects to the unconstitutional provision without declaring it void. The
Court may combine the declaration of incompatibility with an order to continue to apply the unconstitutional provisions for a limited time. This may be considered in cases
where the immediate invalidity of the objectionable provision would eliminate the basis for the protection of exceptionally significant public interests and if the outcome of
a balancing of these interests against the affected fundamental rights requires that
the interference be tolerated for a transitional period (cf. BVerfGE 33, 1 <13>; 33, 303
<347 and 348>; 40, 276 <283>; 41, 251 <266 et seq.>; 51, 268 <290 et seq.>; 109,
190 <235 and 236>).
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This is the case here. Depending on the political situation, the objectionable powers
may become very important for the security of the Federal Republic of Germany and
as a basis for action of the Federal Government, and this may happen quite rapidly,
especially when taking into account the potential dynamics of threats in light of the
realities of information technology. A declaration of incompatibility or a temporary order of suspension would thus involve considerable risks. Moreover, an unexpected
suspension of the possibility to cooperate with other intelligence services might damage trust in the Federal Intelligence Service as a reliable partner, possibly in the long
term. It must also be taken into account that the general structure of the objectionable
powers can be designed in a manner that is constitutionally tenable, and that their
shortcomings can thus be remedied. It is true that remedying the statutory basis of
these powers requires fundamental amendments, given that the new provisions must
provide a basis for surveillance measures that takes into account Art. 10(1) GG and
must thus create novel limits and checks in accordance with the rule of law. However,
in light of the great importance that the legislator may accord to foreign surveillance,
an order to continue to apply the unconstitutional provisions for a limited time is
preferable to the immediate invalidity of the provisions until new provisions have been
enacted, which is expected to happen in the foreseeable future.
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The legislator must enact new provisions by 31 December 2021 at the latest. The
order of continued application is only valid until that date.
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