BVerwG 6 A 9.14, Judgment of 14 Dezember 2016 | Bundesverwaltungsgericht

30.07.20, 16:19

the legal relationship resulting from specific facts on the basis of public
law defining the relationship of natural or legal persons to one another
or of a person to a thing (cf. only BVerwG, judgment of 23 August
2007 – 7 C 2.07 - BVerwGE 129, 199 para. 21). The parties are required
to argue about the application of a legal provision to a specific, clear
case specifically affecting the respective claimant and are not permitted to submit to the administrative courts for clarification merely abstract legal questions arising from facts only conceived or imagined to
be possible (cf. consistent jurisprudence of the Federal Administrative
Court since the judgment of 8 June 1962 – 7 C 78.61 – BVerwGE 14,
235 <236> substantiation in: BVerwG, judgment of 28 May 2014 – 6 A
1.13 - BVerwGE 149, 359 para. 20 et seq.; (…)).

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2. If the Federal Intelligence Service demonstrably accesses a means
of telecommunication in such a way as to be defined as an encroachment upon telecommunications privacy protected under article 10 GG,
this is sufficient to establish the existence of a legal relationship between the authority and the telecommunications user affected within
the meaning of the establishment of a legal relationship under section
43 (1) VwGO (BVerwG, judgments of 23 January 2008 – 6 A 1.07 BVerwGE 130, 180 para. 26 and of 28 May 2014 – 6 A 1.13 – BVerwGE
149, 359 para. 23). In its fundamental judgment on strategic surveillance of 14 July 1999 – 1 BvR 2226/94 et al., Rulings of the Federal
Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 100, 313 <366 et seq.>), the Federal Constitution-al
Court (BVerfG, Bundesverfassungsgericht) defined broadly the limits
of an encroachment on article 10 GG, which aims to protect communications privacy. According to this judgment, any cognisance, recording
and utilisation of com-munications data by the state constitutes an encroachment on basic rights. Even collecting such data constitutes an
encroachment insofar as it makes the communication available to the
Federal Intelligence Service and forms the basis of subsequent comparison with the search concepts ordered under sec-tion 5 (1) and (2) G
10. An encroachment is deemed not to take place only when telecommunications processes between German connections are collected inadvertently, such collection occurs only on account of the technology
used, and the data are discarded technically without trace immediately
after the signals have been processed. Subsequent information and
data processing - particularly matching search concepts, further examination by staff of the Federal Intelligence Service and storing and
utilising the data categorised as being of relevance from the point of
view of intelligence – constitutes further separate violations of the basic right deriving from article 10 GG. Under section 31 (1) of the Federal Constitutional Court Act (BVerfGG, Bundesverfassungsgerichtsgesetz), this definition of encroachment on article 10 GG, which the
Federal Constitutional Court uses in its evaluation of the strategic surveillance of telecommunications, is binding upon the Senate, particularly since the Federal Constitutional Court repeated it later in another
context BVerfG, judgment of 2 March 2010 – 1 BvR 256/08 et al.BVerfGE 125, 260 <309 et seq.>). Accordingly, the Senate is prevented
from taking into account more restrictive trends that have become evi-

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