Bundesverfassungsgericht - Decisions - Decision on the constitutionality of the 1983 Census Act
30.07.20, 15:50
The proceedings concerned several constitutional complaints lodged by citizens, directly challenging the 1983
Federal Census Act (hereinafter, the “Act”). The Act provided for a comprehensive data collection that, in addition
to a population count, included personal information such as name, address, religious affiliation etc. as well as
information on the census subjects’ educational background, professional occupation and housing situation.
II.
The Federal Constitutional Court found the constitutional complaints to be for the most part admissible; in part,
the complaints were also well-founded.
The decision is based on the following considerations:
The applicable standard of review derives primarily from the general right of personality as protected under
Article 2.1 in conjunction with Article 1.1 of the Basic Law.
The general right of personality encompasses, based on the notion of self-determination, the power conferred on
the individual to, in principle, decide themselves whether and to what extent to disclose aspects of their personal
life.
If individuals cannot, with sufficient certainty, determine what kind of personal information is known to their
environment, and if it is difficult to ascertain what kind of information potential communication partners are privy
to, this may seriously impair the freedom to exercise self-determination. In the context of modern data
processing, the free development of one’s personality therefore requires that the individual is protected against
the unlimited collection, storage, use and sharing of personal data.
The right to “informational self-determination” is not, however, without limitation. Pursuant to Article 2.1 of the
Basic Law, these limitations require a statutory basis, specifying the conditions and scope of the limitations in a
manner that is clear and discernible to citizens in accordance with the principle of legal clarity deriving from the
rule of law. Furthermore, the legislator must observe the principle of proportionality. In view of the threats
resulting from the use of automatic data processing outlined above, it is incumbent upon the legislator to put in
place organisational and procedural safeguards designed to counter the risk of violating the right of personality.
In principle, personal data may only be collected and used for statutorily defined purposes (Zweckbindung). With
regard to the collection and processing of data for statistical purposes, however, the specific nature of statistics
must be taken into account. The requirement that the purposes of data collection and use be precisely defined
and the strict prohibition to collect personal data for retention do not apply to the collection of census data which,
by way of producing reliable data on population and social demographics, serves to establish a verified data pool
as a basis for further statistical analysis and political planning processes. The census must necessarily allow
multi-purpose data collection and use.
It is precisely because data collected during population censuses is from the outset not limited by purposerelated restrictions that these censuses tend to entail a risk of registering and cataloguing the individual in a
manner that violates personality rights. In order to ensure the protection of the right to informational selfdetermination, specific safeguards must be put in place concerning the implementation and organisation of data
collection and processing. This is due to the fact that at the stage of collection – and in part also during storage –
such data can still be attributed to individual persons. It is also necessary to impose statutory deletion
requirements with regard to data collected as auxiliary information (identification markers). As long as the
relevant data is still attributed or attributable to a person, it is indispensable that individual data collected for
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