Federal Constitutional Court - Press office -

Press release no. 31/2013 of 24 April 2013

Judgment of 24 April 2013 – 1 BvR 1215/07 –

Counter-Terrorism Database in its Fundamental Structures Compatible with
the Basic Law, but not Regarding Specific Aspects of its Design


The counter-terrorism database is in its fundamental structures 
compatible with the Basic Law. However, it does not meet the 
constitutional requirements regarding specific aspects of its design. 
This is what the First Senate of the Federal Constitutional Court 
decided in a judgment that was issued today. Under certain conditions, 
the unconstitutional provisions can continue to be applied until new 
regulation has been enacted, but no later than until 31 December 2014. 

The Decision is Essentially Based on the Following Considerations: 

1. The complainant challenges the Act on Setting up a Standardised 
Central Counter-Terrorism Database of Police Authorities and 
Intelligence Services of the Federal Government and the Länder 
(Counter-Terrorism Database Act – ATDG; Gesetz zur Errichtung einer 
standardisierten zentralen Antiterrordatei von Polizeibehörden und 
Nachrichtendiensten von Bund und Ländern, Antiterrordateigesetz). 

2. The constitutional complaint provides no reasons for a preliminary 
ruling before the European Court of Justice. Clearly, the 
Counter-Terrorism Database Act and actions that are based on it do not 
constitute an implementation of Union law according to Art. 51 sec. 1 
sentence 1 of the Charter of Fundamental Rights of the European Union. 
The Counter-Terrorism Database Act pursues nationally determined 
objectives which can affect the functioning of the legal relationships 
under EU law merely indirectly. Thus, the European fundamental rights 
are from the outset not applicable, and the European Court of Justice is 
not the lawful judge according to Art. 101 sec. 1 sentence 2 of the 
Basic Law (Grundgesetz – GG).The European Court of Justice’s decision in 
the case Åkerberg Fransson (judgment of 26 February 2013, C-617/10) does 
not change this conclusion. As part of a cooperative relationship, this 
decision must not be read in a way that would view it as an apparent 
ultra vires act or as if it endangered the protection and enforcement of 
the fundamental rights in the member states in a way that questioned the 
identity of the Basic Law’s constitutional order. The Senate acts on the 
assumption that the statements in the ECJ’s decision are based on the 
distinctive features of the law on value-added tax, and express no 
general view. The Senate’s decision on this issue was unanimous. 

3. The constitutional complaint is, in part, well-founded. 

a) The counter-terrorism database is, in its basic structures, 
compatible with the right to informational self-determination according 
to Art. 2 sec. 1 in connection with Art. 1 sec. 1 GG. 

aa) The exchange of information which the challenged provisions create 
carries considerable weight. For the persons concerned, the entry into 
such a database can pose a considerable hardship. 

It adds to the severity of the infringement of rights that the database 
also facilitates the exchange of information between intelligence 
agencies and police authorities. The legal order distinguishes between 
the police, which generally works in the open, is structured for the 
fulfilment of operational duties, and guided by detailed legal 
provisions; and the intelligence agencies, which generally work in 
secret, are limited to observation and reconnaissance for political 
information and consultation, and can thus act within a less complex 
legal framework. From the fundamental right to informational 
self-determination, follows that a principle of separation of 
information (informationelles Trennungsprinzip) applies to the exchange 
of data between these institutions. The exchange of data for operative 
tasks between the intelligence agencies and the police authorities 
constitutes a particularly severe infringement. This is only admissible 
in exceptional cases and has to serve a highly important public 
interest. In such a case, it is not permissible to undercut the 
respective thresholds for the infringements of rights that apply in 
cases of data acquisition. 

However, it mitigates the severity of the infringement that the 
counter-terrorism database is structured as a joint database which is 
essentially limited to initiating the receipt of information via data 
that have already been collected. The transfer of data for the 
fulfilment of operational duties is governed by the relevant specialised 
legislation which again has to comply with the constitutional 
requirements and the principle of the separation of information. The 
Counter-Terrorism Database Act itself legitimises an exchange of data 
for the fulfilment of operational duties only in urgent and exceptional 
cases. 

bb) Crimes with terrorist characteristics, at which the 
Counter-Terrorism Database Act is aimed, are directed against the 
keystones of the constitutional order and the community as a whole. It 
is a requirement of our constitutional order not to view such attacks as 
acts of war or states of emergency, which would be exempt from the 
adherence to constitutional requirements, but to fight them as criminal 
acts with means that are within the rule of law. This means, on the 
other hand, that in the examination of proportionality, the fight 
against terrorism has to be accorded considerable weight. 

cc) In view of these conflicting interests, there are no constitutional 
objections against the fundamental structures of the counter-terrorism 
database. However, the provisions of the database only meet the 
requirements of the principle of proportionality in the narrow sense, if 
these norms are clear and sufficiently narrow with regard to which data 
are to be recorded and how these data may be used, and if qualified 
supervisory requirements both exist and are adhered to. 

b) The Counter-Terrorism Database Act does not fully meet these 
requirements. 

aa) § 1 sec. 2 ATDG, which merely regulates the participation of further 
police authorities in the counter-terrorism database according to broad 
criteria that are open to judgment, is incompatible with the requirement 
of legal certainty. If, in this setting, the legislature chooses to 
leave the decision about the authorities involved up to the executive, 
it has to do so via a legislative ordinance. A mere administrative 
regulation is insufficient. 

bb) Not in every respect compatible with the constitutional requirements 
are the provisions which determine the scope of people who the database 
may cover. 

(1) First, § 2 sentence 1 no. 1 ATDG covers members, supporters, and 
support groups of terrorist organisations. However, the provision 
enlarges this circle to persons who merely support a support group, 
without clarifying that a conscious support of activities which support 
terrorism is required. Thus persons can be covered who – prior to, and 
unaware of a relationship to, terrorist activities – support an 
organisation that seems unsuspicious to them. This violates the 
principle of the clarity of legal provisions and is incompatible with 
the prohibition of disproportionate measures. An interpretation in 
conformity with the Constitution is not possible in this case. 

(2) § 2 sentence 1 no. 2 ATDG is also not fully compatible with the 
Constitution. The provision, which is meant to cover individuals who 
might have an affinity to terrorism, combines a number of ambiguous and 
potentially broad legal terms. 

Because of a tie in the Senate’s votes, the terms “unlawful use of 
violence” (“rechtswidrige Gewalt”) and “intentional incitement of such 
use of violence” (“vorsätzliches Hervorrufen solcher Gewalt”) cannot be 
declared unconstitutional. According to the four members of the Senate 
who carry this part of the decision, the use of these criteria is 
compatible with the Basic Law as long as they are not accorded an overly 
wide meaning, and in particular the term “violence” is only understood 
as violence that is directed directly against life and limb or 
characterised by means that are dangerous to public safety. According to 
the view of the other four members of the Senate, the provision would 
have to be declared unconstitutional as a whole because of its lack of 
specificity and an overly wide reach; an interpretation in conformity 
with the Constitution would not be possible. 

The mere “advocating” of violence (“Befürworten von Gewalt”) within the 
meaning of this provision is, according to the Senate’s unanimous view, 
not sufficient for recording a person in the counter-terrorism database. 
The provision thus violates the prohibition of disproportionate 
measures. In this case, the law uses subjective convictions as its 
yardstick and thus lays out criteria which an individual can only 
control to a limited degree and which cannot be influenced by behaving 
in a perfectly legal way. 

(3) § 2 sentence 1 no. 3 ATDG is unconstitutional. According to this 
provision, the basic data must be stored in the database if contact 
persons do not know about the protagonist’s connection to terrorism. If 
they do know about the protagonist’s connection to terrorism, the 
extended basic data must be stored as well. Consequently, the exchange 
of non-encoded information between the participating authorities also 
includes data concerning the contact persons. The provision is neither 
compatible with the principle of clarity of legal provisions nor with 
the prohibition of disproportionate measures. However, it is not 
generally prohibited by constitutional law to make data of contact 
persons available in the anti-terror database. As a general rule, such 
persons are only of interest to the degree they can provide information 
about the protagonist who is thought to have a close connection to 
terrorism. This is what the legislation must have in mind as well. It 
would be possible in such a situation to store only some elementary data 
about contact persons and to store them, as information concerning the 
protagonist with a connection to terrorism, in such a way that they can 
only be searched covertly. 

cc) The extent of the data stored, which is set out in § 3 sec. 1 nos. 
1a and 1b ATDG, is constitutionally unobjectionable. However, with 
regard to some data, it is necessary to document and to publish the 
intermediate administrative steps by which they are specified. This duty 
of documentation and publication applies to the characteristics set out 
in § 3 sec. 1 no. 1b gg, hh, ii, kk, nn ATDG (for instance concerning 
the storage of data about skills which are relevant in connection with 
terrorism), which are phrased very broadly. They meet the requirement of 
the clarity of legal provisions because these characteristics can only 
be specified by the security authorities. The legislature, however, has 
to ensure that the way in which this is done is documented and 
published. Current practice is that the vague legal terms are specified, 
and standardised, by a catalogue of the characteristics which are to be 
stored; this list is part of the computer programme. The Federal 
Government has provided the Senate with a “Catalogue Manual” on this. 
The Counter-Terrorism Database Act, however, does not provide for a 
publication of this manual. Thus, the present legal situation does not 
satisfy the requirements of a legislation which is structured in 
accordance with the rule of law. 

The free text field (§ 3 sec. 1 no. 1b rr ATDG) is compatible with the 
prohibition of disproportionate measures. This is not a blanket 
authorisation for adding further information at will but opens the 
database for notes and assessments which cannot be shown otherwise due 
to the standardisation and catalogisation of the entries. 

dd) The provisions on the use of the data are not in every respect 
compatible with the prohibition of disproportionate measures. 

(1) The provisions on the request and use of the basic data are 
constitutionally unobjectionable. The same applies to requests for 
extended basic data to the extent that information is requested which 
relates to a certain name (§ 5 sec. 1 sentences 1 and 3 in conjunction 
with § 3 sec. 1 no. 1b ATDG). Here, the authority does not have access 
to the extended basic data themselves but only receives the information 
that a match has been found and information on which authority stores 
the data in question and on the file number under which they are stored. 
Direct access to the extended basic data is only made possible on 
request in individual cases as set out in specialised law; it requires 
authorisation by the authority storing the data. 

(2) The provision on what is known as reverse search is not compatible 
with the prohibition of disproportionate measures (§ 5 sec. 1 sentence 2 
no. 1a ATDG). Reverse search of the extended basic data is related to 
specific characteristics; in the case of a match, it provides the 
requesting authority not only with a source of further information but 
with direct access to the basic data in question. An authority can for 
instance search for persons with a specific religious affiliation and 
occupational qualification who regularly visit a certain meeting place. 
If there is a match, the requesting authority not only receives 
information about which authority has these data, but also the names, 
addresses and other basic information about all persons to whom the 
characteristics it inquired about apply. Such a far-reaching use does 
not take sufficient account of the significance of the content of the 
extended basic data. If a search covers extended basic data, only the 
file number and the authority storing the information may be shown, but 
not the corresponding basic data. 

(3) There are no concerns under constitutional law against use of the 
extended basic data in an emergency (§ 5 sec. 2 in conjunction with § 6 
sec. 2 ATDG), not even with regard to a reverse search. The conditions 
under which such a use is permitted are drafted in a manner that is 
restrictive enough as to justify the intervention. The provision 
complies with the prohibition of disproportionate measures and also 
adheres to the principle of the separation of information between the 
police and the intelligence services. 

ee) Due to the purpose and the functioning of the database, the 
Counter-Terrorism Database Act ensures transparency of the exchange of 
information only to a limited extent. Thus, only limited possibilities 
of legal protection are open to the persons affected. This is compatible 
with the Constitution if the conditions set out in constitutional law 
are adhered to when it comes to effectively organising the supervision. 
The supervisory instances at federal and state level – currently, the 
data protection commissioners – must have effective powers. There must 
be complete records of any access to sets of data, and of their 
modification; the records must be made available to the data protection 
commissioners in such a way that they can be evaluated in a practicable 
manner. There must be checks in appropriate intervals; the duration of 
such intervals may not exceed a certain maximum of approximately two 
years. 

No sufficient legal provision has been made concerning the requirement 
of mandatory checks in definite intervals; in this regard the 
legislature has a duty to amend the law. In all other respects, the 
provisions are to be interpreted in conformity with the Constitution. 
Furthermore, the legislature has to observe whether conflicts arise 
which must be clarified by the law or which require mechanisms for 
dispute settlement, such as an extension of the right to bring an 
action. 

ff) Finally, statutory provisions on duties to report are required to 
ensure transparency and supervision. It must be ensured that the Federal 
Criminal Police Office reports to Parliament and to the general public 
about the data stored in the counter-terrorism database and about the 
use of the database. 

c) The additional complete and unrestricted incorporation, which is 
provided by the law, of all data collected through infringements of Art. 
10 sec. 1 (secrecy of telecommunications) and of Art. 13 sec. 1 GG 
(inviolability of the home) into the counter-terrorism database is 
incompatible with the Constitution. In view of the particularly high 
degree of protection provided by these articles, particularly strict 
requirements apply, as a general rule, to data collections which 
infringe these fundamental rights. The additional unrestricted 
incorporation of such data into the counter-terrorism database makes the 
information available, irrespective of terrorist acts that have already 
been committed or are imminent, for investigation measures that take 
place even before tangible danger situations arise, and even though it 
would not be possible to justify collecting data through infringements 
of the secrecy of telecommunications or of the inviolability of the home 
for such measures. This undercuts he requirements on data collection in 
this field. 

In contrast, a legislation which would always require covert storage 
pursuant to § 4 ATDG for such data would under proportionality aspects 
be compatible with the Constitution. Such legislation would make the 
corresponding information available only under the data transfer 
regulations in the specialised laws. The specialised laws, in turn, 
could ensure specific thresholds for infringement, which are required by 
constitutional law, and a sufficiently effective protection of legal 
interests. 

4. The partial unconstitutionality of the challenged provisions does not 
result in their being declared void; it is only established that they 
are incompatible with the Basic Law. Until new legislation has been 
enacted, but, however, no later than until 31 December 2014, the 
provisions may continue to be applied. Before they continue to be 
applied, however, it must be ensured that certain conditions are adhered 
to. 





This press release is also available in the original german version.