133, 277 <372 and 373 para. 225>, with further references).
aa) Regarding the standards applied to the proportionality test, the former case-law
of the Federal Constitutional Court reviewed whether the changed use was “incompatible” with the original purpose (cf. BVerfGE 65, 1, <62>; 100, 313 <360, 389>; 109,
279 <376 and 377>; 110, 33 <69>; 120, 351 <369>; 130, 1 <33>). Meanwhile, this
approach has been specified and replaced by the criterion of a hypothetical recollection of data (hypothetische Datenneuerhebung). Accordingly, as far as data that
results from particularly intrusive surveillance and investigative measures is concerned, such as the data at issue in these proceedings, it is necessary to determine
whether it would be permissible, by constitutional standards, to also collect the relevant data for the changed purpose with comparably weighty means (cf. BVerfGE 125,
260 <333>; 133, 277 <373 and 374 paras. 225 and 226>; in substantive terms, this
specification is not new cf. already BVerfGE 100, 313 <389 and 390> and is referred
to as a “hypothetical substitute interference” in BVerfGE 130, 1 <34>). However, the
criterion of a hypothetical re-collection of data is not applied in a rigid systematic manner and does not rule out the possibility that further aspects may be taken into consideration (cf. BVerfGE 133, 277 <374 para. 226>). Thus the fact that the authority receiving the data is not – unlike the authority that permissibly collected the data and
from which the data emanates – empowered to collect certain data itself due to its assignment of tasks does not bar, as a matter of principle, the exchange of data between these authorities (cf. BVerfGE 100, 313 <390>). Furthermore, when establishing data transfer provisions, considerations such as simplification and practicability
can justify the fact that not all individual requirements that must be met for the collection of data will also apply, with the same level of detail, to the transfer of data. This,
however, does not affect the requirement that the new use must be of equal weight.
287
bb) However, for that reason a requirement for a change in purpose is that the new
use of the data must serve the protection of legal interests or aim to detect criminal offences of such a weight that would, by constitutional standards, justify collecting them
again with comparably weighty means (cf. BVerfGE 100, 313 <389 and 390>; 109,
279 <377>; 110, 33 <73>; 120, 351 <369>; 130, 1 <34>).
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In contrast, the requirements for a change in purpose are not always identical to the
requirements for a data collection with regard to the necessary degree of specificity of
the risk situation or of the suspicion that a crime has been committed. With a view to
proportionality considerations, the relevant requirements primarily only establish the
direct grounds for the data collection as such but not also those for the further use of
the collected data. An authorisation to use data for other purposes constitutes an interference that requires a new justification. For that reason, such an authorisation also requires its own, sufficiently specific grounds. Under constitutional standards, it is
thus necessary but generally also sufficient that the data – either as such or in combination with the authority’s additionally available information – results in a specific evidentiary basis for further investigations.
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