fundamental rights requirements must always be ensured. If it is not possible by other
means to ascertain that the transferred data will be handled in acceptable conformity
with fundamental rule-of-law principles in the third country, recourse must be taken
in individual cases to obtaining assurances that meet the requirements set out in §
14 sec. 7 sentence 9 BKAG. Such an interpretation of the provision does not raise
concerns as to its constitutionality. The general provision § 27 sec. 1 no. 1 BKAG is
an additional backup for the provision.
e) As for the rest, the transfer rules set out in § 14 sec. 1 BKAG do not meet the constitutional requirements insofar as, with regard to transfer practices, they lack sufficient rules on supervisory control and the ordering of reporting duties (see above, C
VI 6 d, e). In contrast, documentation requirements are set out in § 14 sec. 7 sentence 3 BKAG as constitutionally required (cf. BVerfGE 133, 277 <370 para. 215>). In
light of the fact that § 19 Federal Data Protection Act (Bundesdatenschutzgesetz) applies, the data subjects’ rights to information are also provided for (cf. BVerfGE 120,
351 <364 and 365>; see above, C IV 6 b; C VI 3 b).
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E.
I.
1. The finding that certain provisions are unconstitutional generally results in their
voidness. However, the Federal Constitutional Court may also – pursuant to § 31 sec.
2 sentences 2 and 3 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) – confine itself to simply declaring that an unconstitutional
provision is incompatible with the Constitution (BVerfGE 109, 190 <235>). This results in a mere contestation of the unconstitutionality of a provision without the declaration of its voidness. At the same time, the Federal Constitutional Court may combine the declaration that a provision is incompatible with the Constitution with an
order according to which the unconstitutional provision shall nonetheless stay in effect on an interim basis until a date specified by the Court. This option is feasible if the
immediate voidness of the contested provision would deprive common goods of paramount importance of their protection and if the outcome of a weighing of these interests with the fundamental rights at stake is that the interference can be tolerated during a transitional period (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>). During the transitional period, the Federal Constitutional Court may, until the constitutional order is restored, take interim measures to reduce the authorities’ powers, in line
with what appears necessary in light of the weighing of interests (BVerfGE 40, 276
<283>; 41, 251 <267>).
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2. Accordingly, § 20h sec. 1 no. 1 c and § 20v sec. 6 sentence 5 BKAG are to be declared unconstitutional and void. The provisions do not satisfy the constitutional requirements and the legislature cannot remedy this by adopting a provision with comparable legislative content.
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