I. Summary

The constitutional complaints, filed amongst others by a domestic bank, a lawyer and notary, a recipient of housing benefits and a recipient of social assistance, concern, in essence, § 24 c.3.1 no. 2 of the Banking Act, as well as § 93.7 and 8 of the Fiscal Code. These provisions entitle the authorities and courts competent to provide international mutual assistance in criminal matters, as well as to conduct criminal proceedings, the tax authorities and the social welfare authorities, to automatically retrieve certain data which banks must retain. These are the master account data of bank customers and of other parties with the right of disposal, such as surname, date of birth, account numbers and deposit numbers. No account balances or movements can be retrieved by these means. The authorities may only obtain those details on the basis of other provisions authorising them to do so.

II.
The constitutional complaints were partially successful. The First Senate of the Federal Constitutional Court held that § 93.8 of the Fiscal Code violates the right to informational self-determination of the two applicants who receive social benefits . § 24 c.3.1 no. 2 of the Banking Act and § 93.7 of the Fiscal Code, by contrast, are compatible with the Basic Law.
The data retrieval governed by the challenged provisions interferes with the right to informational self-determination.
Provisions that are the legal basis for such interferences with the right to informational self-determination must precisely specify their cause, purpose and limits. § 93.8 of the Fiscal Code does not comply with these principles of legal specificity and legal clarity. The provision does not determine in a sufficiently precise manner the group of authorities which are entitled to request retrieval, nor the tasks for which such requests may be used.
If the social welfare authority applies a law which is linked to “definitions of the Income Tax Act”, this falls within the scope of application of § 93.8 of the Fiscal Code, and it is thus possible to retrieve account data. Even in a narrow interpretation to the effect that a statute is subject to this provision only if it specifically relates to terms of income tax law, it is not possible to infer a concrete delimitation of the scope of application, or a specific purpose of the respective data collection. Hence, § 93.8 of the Fiscal Code provides automated retrieval of master account data as a tool for multiple statutory purposes. It is not evident that the unspecific wording of the provision is due to particular difficulties in laying down a clear and specific regulation. The provision is intended to combat the abuse of social benefits and the non-payment of social charges in particular. For the authorities’ investigations relating thereto, typical cases can be identified. It would have been possible to simply list the legal provisions which may be enforced by way of the retrieval of bank account data.
§ 24 c.3.1 no. 2 of the Banking Act and § 93.7 of the Fiscal Code, by contrast, satisfy the principle of legal specificity since they specify in a sufficiently precise manner the authority authorised to collect the information, the preconditions for the retrieval of bank account data in terms of the elements of potential offences, as well as the nature of the information.
The authorisation for interference contained in the provisions also satisfies the principle of proportionality. The same applies to § 93.8 of the Fiscal Code if the unclear elements of this provision stated above are remedied in a manner that complies with the Constitution.

The provisions serve interests of the common good which are of considerable significance. § 24 c.3.1 no. 2 of the Banking Act aims at effective criminal prosecution and mutual assistance in criminal matters, § 93.7 of the Fiscal Code aims to bring about equal fiscal burdens. Also, the goals contained in § 93.8 of the Fiscal Code take on considerable weight if the scope of application is reduced to pursuing significant public interests, namely ensuring that social charges are collected and that the abuse of social benefits is countered.
These interests of the common good are not disproportionate to the interferences with the right to informational self-determination due to these provisions. The information obtained by retrieving the master account data in isolation has no special relevance in terms of personality. The challenged provisions are also not inappropriate insofar as the possibility of judicial review is limited as a result of the covert nature of retrieval. If the investigation is kept hidden from the person concerned, this does increase the intensity of the interference with informational self-determination. However, authorities must take this into account when deciding whether it is possible for master account data to be covertly accessed in an individual case without previously informing the person concerned, or whether an investigative measure may be considered that interferes less with fundamental rights. Retrieval of bank account data is hence subject to the principle of necessity. The structure of the interference thresholds in the challenged provisions also complies with the principle of proportionality since the retrieval of bank account data is permitted only in case of specific suspicions.
The data retrieval provided for in the challenged provisions does not violate the right of the bank filing the complaint to informational self-determination. The interest of a bank in the confidentiality of its business relations is only protected by fundamental rights insofar as the impairment can impact its own economic activity. This is in principle not the case insofar as the business relationships are taken note of solely in the context of investigations targeting customers.

§ 24 c.3.1 no. 2 of the Banking Act and § 93.7 of the Fiscal Code do not violate the right to freely choose an occupation of the complainant who is a lawyer and notary. The measures which can be taken on the basis of the challenged provisions do not impair the relationship of trust between the lawyers or notaries and their clients. Lawyers’ clients can only develop trust in the confidentiality of the lawyer-client relationship, protected under constitutional law, if the lawyer has actual possibilities to exert influence.
The challenged provisions also meet the requirements of effective legal protection that are strongly connected to fundamental rights and their protection. Procedural law guarantees to those concerned a fundamental right to information of which they can indeed make use at the latest when the authority in question has evaluated the outcome of retrieval of the bank account data with consequences which are detrimental to them. The authorities must comply with the requirements of the guarantee of legal protection when applying the provisions from which the right to information derives. In particular, insofar as the tax authorities are granted discretion as to information, the discretion is reduced in favour of the person concerned if and to the extent that providing information is not contrary to a particular interest in confidentiality which takes on overriding significance. The legislature was not obliged to provide for an obligation incumbent on the authority acting in each case to inform the person concerned after each instance of the retrieval of bank account data. If the retrieval of bank account data has no detrimental consequences for the persons concerned, their legitimate interest in the results of potential court proceedings is not so strong that they would always have to be actively provided with the information necessary to invoke this in court.
Until 31 May 2008, the legislature must enact a new version of § 93.8 of the Fiscal Code, which must be compatible with the Basic Law. Until then, the provision remains applicable on the condition that, in accordance with this provision, retrieval requests are only permissible for the purpose of examining the entitlement to social benefits named in the application order issued by the Federal Ministry of Finance of 10 March 2005.