BVerwG 6 A 9.14, Judgment of 14 Dezember 2016 | Bundesverwaltungsgericht
10
Recourse to the courts for the claimant’s request, referring to the legality of the strategic surveillance of e-mail traffic carried out in 2012
pursuant to section 5 (1) third sentence nos. 2, 3 and 7 G 10 of 26 June
2001 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1254,
2298), here applicable in the version most recently amended by the
Act of 7 December 2011 (BGBl. I p. 2576), is not excluded. Moreover,
the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) has jurisdiction ratione materiae under section 50 (1) no. 4
VwGO. In both regards, reference may be made unreservedly to the
statements in the judgment of 28 May 2014 – 6 A 1.13 - (Rulings of the
Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 149, 359 para. 15 et seqq.), by means of which
the Senate dismissed the claimant’s action for a declaratory judgment
concerning the strategic surveillance of e-mail traffic under section 5
(1) third sentence nos. 2, 3 and 7 G 10 in 2010. However, the prerequisite for a declaratory judgment of the existence of a legal relationship
that can be established within the meaning of section 43 (1) VwGO was
not fulfilled. To this extent, too, the result was that the Senate adheres
to its decision in the preceding proceedings referred to above.
11
A legal relationship that can be established under section 43 (1) VwGO
is one relating to specific facts that specifically affect the respective
claimant (1.). It could be affirmed that a legal relationship within this
meaning existed in the present case if, in the course of the said restriction measures in 2012 under section 5 G 10, there had been an encroachment on the claimant’s telecommunications privacy protected
under article 10 GG. (2.). However, such an encroachment can no longer be established and thus an establishable legal relationship does not
exist because no e-mail traffic by the claimant is among the e-mails
that the Federal Intelligence Service collected, classified as being relevant from an intelligence point of view and stored in 2012, and the Federal Intelligence Service properly, immediately and completely deleted all the other e-mails it had collected, but which were irrelevant
from an intelligence point of view (3.). The assessment that, for this
reason, admissible legal action for a declaratory judgment cannot be
taken does not conflict with the guarantee of effective legal protection
enshrined in article 19 (4) first sentence GG. This guarantee is admissibly limited by the constitutionally enshrined order to delete e-mails
that were collected but not required for the fulfilment of the Federal
Intelligence Service’s tasks and the provisions of the G 10 Act for the
notification of persons affected by restriction measures required under
section 5 G 10 (4.). The obstruction to the judicial protection of individual rights relating thereto is acceptable for reasons including that the
G10 Commission continually and comprehensibly monitors the legitimacy of restriction measures under section 5 G 10, thus guaranteeing a
compensatory protection of basic rights (5.).
12
1. Under section 43 (1) VwGO, the establishment of the existence or
non-existence of a legal relationship – also in the past - may be sought
by means of an action on the basis of a justified interest in such establishment. The term “legal relationship” is to be understood to mean
https://www.bverwg.de/en/141216U6A9.14.0
30.07.20, 16:19
Seite 4 von 11