Order of 11 March 2008

Order of the First Senate of 11 March 2008
– 1 BvR 256/08 –

in the proceedings on the constitutional complaint of

- authorised representative:

Mr. …, lawyer –

RULING:

1. Until the decision in the proceedings in the main action, § 113b sentence 1 no. 1 of the Telecommunications Act as amended by the Act of 21 December 2007 (Federal Law Gazette I page 3198) is to be applied only subject to the following conditions: pursuant to the request for retrieval of a criminal prosecution authority under § 100g.1 of the Code of Criminal Procedure (Strafprozessordnung) that relates to telecommunications traffic data that are stored solely under § 113a of the Telecommunications Act, the telecommunications service provider to which the retrieval request is directed must collect the data requested. However, the data are to be forwarded to the requesting authority only if the subject of the preliminary investigation pursuant to the order for retrieval is an offence listed in § 100a.2 of the Code of Criminal Procedure and the requirements of § 100a.1 of the Code of Criminal Procedure are satisfied. In the other cases of § 100g.1 of the Code of Criminal Procedure, there is to be no forwarding of the data for the time being. The service provider is to store the data. It may not use the data and must ensure that they are not accessible to third parties.
2. By 1 September 2008, the Federal Government must report to the Federal Constitutional Court (Bundesverfassungsgericht), taking into account the provisos that are contained in the grounds of this decision, on the practical effects of the data storage provided for in § 113a of the Telecommunications Act and of the present temporary injunction. The Länder (states) and the Federal Public Prosecutor General (Generalbundesanwalt) must submit to the Federal Government the information necessary for the report.
3. In other respects, the application for a temporary injunction is rejected.
4. The Federal Republic of Germany is ordered to reimburse the complainants one-third of their necessary costs in the proceedings on the application for a temporary injunction.

GROUNDS:

A.

In their application for a temporary injunction, the complainants seek a temporary suspension of the retention of telecommunications traffic data for the purposes of public security introduced by the Act for the Amendment of Telecommunications Surveillance and Other Measures of Undercover Investigation and for the Implementation of Directive 2006/24/EC of 21 December 2007 (Gesetz zur Neuregelung der Telekommunikationsüberwachung und anderer verdeckter Ermittlungsmaßnahmen sowie zur Umsetzung der Richtlinie 2006/24/EG (Federal Law Gazette I 2007 p. 3198; hereinafter referred to as: Act for the Amendment of Telecommunications Surveillance)).

I.

1. Telecommunications traffic data are data that are collected, processed or used in the provision of a telecommunications service (see § 3 no. 30 of the Telecommunications Act. For some time now, authorisations of a number of authorities have existed permitting such data to be collected by the providers of telecommunications services for repressive purposes – the prosecution of criminal offences – and for preventive purposes – the warding off of danger – (see for example for the procedural authorising provision § 100g of the Code of Criminal Procedure (Strafprozessordnung ), old version: Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE 107, 299 (321-322)). These authorisations have great practical relevance. Thus, for example, the Federal Government reports that in criminal prosecution, the number of traffic data retrievals in the year 2005 was over 40,000.

Until now, a retrieval of traffic data has been successful only if the service provider requested had stored the data for its own purposes, for example under § 97 of the Telecommunications Act for the purpose of charging and invoicing. On the other hand, as the law has stood until now, the service providers were not obliged, nor even entitled, to store traffic data independently of their own need for public purposes such as the prosecution of criminal offences or the warding off of dangers (see Federal Constitutional Court (Bundesverfassungsgericht — BVerfG), Order of the First Chamber of the First Senate of 27 October 2006 – 1 BvR 1811/99 –, Neue Juristische Wochenschrift– NJW 2007, p. 3055 (3057)).

This Senate has no reliable information on the number of cases in which requests for the retrieval of traffic data have been unsuccessful under the legal situation to date because the traffic data were not stored after the end of the connection or had been deleted in the intermediate period. On the basis of an analysis of the files of 467 criminal proceedings of the years 2003 and 2004, a study by the Max Planck Institute for Foreign and International Criminal Law concludes that there was a failure rate of approximately 4 per cent. However, the Federal Government stated in this connection that the study was not representative, because only a small number of cases were investigated. In addition, the Federal Government stated, the study was outdated as a result of the development of the telecommunications market insofar as, especially in recent times, there had been increasing use of prepaid telecommunications services or flat rates in connection with which it was not necessary to store traffic data after the end of the connection for the purpose of invoicing. Ultimately, the Federal Government stated, it was necessary to proceed on the assumption that the criminal prosecution authorities had adjusted their investigation method to the storage practices of the service providers with which they were familiar, with the result that requests for retrieval that were not promising were from the outset not made. At all events, there was a need for longer-term storage of traffic data, but this need was not apparent from the study.

2. In some other Member States of the European Union, telecommunications enterprises have now for some time been under an obligation to retain telecommunications traffic data for retrieval by government agencies. The Commission and the Council regarded the varying provisions for the types of data to be stored, the conditions applying to retention and the period of retention as an obstacle to the internal market in the area of electronic communications. Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ L 105 of 13 April 2006, p. 54; hereinafter referred to as: Directive 2006/24/EC) is intended to counter this obstacle. Directive 2006/24/EC is based on Article 95 of the Treaty Establishing the European Community. This legal basis gives the European Community the authority to adopt measures for the harmonisation of legal and administrative provisions of the Member States whose subject is the establishment and functioning of the internal market.

Article 1.1 of Directive 2006/24/EC provides that certain telecommunications data are to be retained in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of “serious crime, as defined by each Member State in its national laws”. Article 3.1 of Directive 2006/24/EC imposes on the Member States the obligation to ensure that the data specified in Article 5 of Directive 2006/24/EC are retained. Article 6 of Directive 2006/24/EC provides that the period of retention must be at least six months and may at maximum be two years from the date of the communication.

On 6 July 2006, Ireland initiated proceedings before the European Court of Justice to have Directive 2006/24/EC declared null and void under Article 230 of the Treaty Establishing the European Community (Case C-301/06). In its statement of reasons it submitted that the Directive had been adopted ultra vires . It was not directed to the creation and functioning of the European internal market, but was primarily concerned with the prosecution of criminal offences, and therefore it should have had a different legal basis and consequently might have been issued not as a directive but merely as a framework decision; under Article 34.2 sentence 2 letter b of the Treaty on European Union this would have required a unanimous vote. There has not yet been a decision in this case.

3. The Act for the Amendment of Telecommunications Surveillance serves inter alia to implement Directive 2006/24/EC in German law (see Bundestag document (Bundestagsdrucksache — BTDrucks ) 16/5846, p. 2). For this purpose, Article 2 of this Act contains amendments to the Telecommunications Act. The provisions challenged by the complainants on the retention of telecommunications traffic data are contained in the new §§ 113a and 113b of the Telecommunications Act.

§ 113a of the Telecommunications Act requires the providers of publicly available telecommunications services for end users to store specific separately listed traffic and locations data for a period of six months. The contents of the communication and data relating to internet sites visited may not be stored under § 113a of the Telecommunications Act.

§ 113b of the Telecommunications Act opens the retained data for retrieval for the purposes of the prosecution of criminal offences, the warding off of dangers to public security and the performance of intelligence tasks. The provision contains no independent authorisation of retrieval; such an authorisation is reserved for the special law governing the authority in question. The statutory provisions relating to this must provide for a retrieval of data with reference to § 113a of the Telecommunications Act. The provider concerned must observe secrecy towards its customers and to third parties with regard to the issuing of information. The retained data may not be used for any other purpose than retrieval by a public authority, with exception of the preparation by hand of information on customer data under § 113 of the Telecommunications Act.

To date, the only legislation that refers to § 113a of the Telecommunications Act is § 100g of the Code of Criminal Procedure, which was also amended by the Act for the Amendment of Telecommunications Surveillance; this section permits, for the purpose of prosecution of criminal offences, a request for information on telecommunications traffic data which is stored solely on the basis of the duty to retain data. The amended § 100g of the Code of Criminal Procedure also increases the previous powers of the prosecuting authorities to collect telecommunications traffic data insofar as the authorities may request from the service providers not only information on traffic data that are stored or will arise in future, but are also authorised to collect traffic data in real time while the telecommunication is proceeding (see Bundestag document 16/5846, p. 50).

According to the opinions received in the present proceedings, provisions on the retrieval of data stored solely under § 113a of the Telecommunications Act by police authorities and security services for preventive purposes are planned in a number of Länder (states) and at the federal level. However, it is not planned to introduce these in the immediate future. On the other hand, for a long time now there have been a large number of provisions under special law that authorise police authorities and security services, in connection with preventive aims, to collect traffic data which a provider of telecommunications services has stored for its own purposes, for example for charging and invoicing under § 97 in conjunction with § 96.1 of the Telecommunications Act.

4. The provisions relevant to the present proceedings are as follows:

§ 113a of the Telecommunications Act
Duties to store data

(1) A person who provides publicly available telecommunications services for end users shall store traffic data produced or processed by him in the use of his service pursuant to subsections 2 to 5 for six months in Germany or in another Member State of the European Union. A person who provides publicly available telecommunications services for end users without himself creating or processing traffic data shall ensure that the data are stored pursuant to sentence 1 above, and shall inform the Federal Network Agency (Bundesnetzagentur ) at its request as to who is storing these data.

(2) The providers of publicly available telephone services store:

1. the telephone number or other identification of the calling and called line, and in the case of call transfer or forwarding of every additional line involved,

2. the beginning and the end of the connection, with date and time and stating the relevant time zone,

3. in cases in which different services may be used as part of the telephone service, information on the service used,

4. in the case of mobile telephone services in addition:

a) the International Mobile Subscriber Identities of the calling and called lines,

b) the International Mobile Equipment Identity of the calling and called terminal device,

c) the identification of the radio cells used by the calling and the called lines at the beginning of the connection,

d) in the case of prepaid anonymous services, in addition the initial activation of the service, with date, time and identity of the radio cell,

5. in the case of Internet telephone services, in addition the Internet Protocol address of the calling and the called lines.

Sentence 1 applies with the necessary modifications to the transmission of a text, multi-media or similar message; in this case, in place of the information under sentence 1 no. 2, the times of the sending and the receipt of the message shall be stored.

(3) The providers of electronic mail services store:

1. when a message is sent, the identity of the electronic mailbox, the Internet Protocol address of the sender and the identity of the electronic mailbox of every receiver of the message,

2. when a message is received in an electronic mailbox, the identity of the electronic mailboxes of the sender and the receiver of the message and the Internet Protocol address of the sending telecommunications equipment,

3. in the event of access to the electronic mailbox, the identification of the mailbox and the Internet Protocol address of the person retrieving,

4. the points of time of the uses of the service set out in nos. 1 to 3 above with date and time, stating the relevant time zone.

(4) The providers of Internet access services store:

1. the Internet Protocol address allocated to the subscriber for use of the Internet,

2. a clear identification of the access line through which the use of the Internet is made,

3. the beginning and the end of the use of the Internet from the allocated Internet Protocol address with date and time, stating the relevant time zone.

(5) To the extent that providers of telephone services store or record the traffic data named in the present provision for the purposes set out in § 96.2 even if the call is not answered or is unsuccessful as the result of a network management intervention, the traffic data shall also be stored pursuant to the present provision.

(6) A person who provides telecommunications services and in doing so alters the information to be stored pursuant to the present provision shall store the original and the new information and the time of the alteration of this information with date and time, stating the relevant time zone.

(7) A person who operates a mobile telephone network for the public shall also retain, in addition to the identities of the radio cells stored pursuant to the present provision, data which reveal the geographic locations of the radio antennae supplying each radio cell and their main beam direction.

(8) The contents of the communication and data on Internet sites visited may not be stored under the present provision.

(9) The storage of the data under subsections 1 to 7 above shall be effected in such a way that requests for information made by the agencies entitled may be responded to without delay.

(10) The provider with obligations under the present provision shall observe the care necessary in the area of telecommunications with regard to the quality and the protection of the traffic data stored. In this connection it must ensure by technical and organisational measures that access to the stored data is exclusively possible to persons specifically authorised by it for this purpose.

(11) The provider with obligations under the present provision shall delete or ensure the deletion of the data stored solely pursuant to the present provision within one month after the end of the period stated in subsection 1.

§ 113b of the Telecommunications Act
Use of the data stored pursuant to § 113a

The provider with obligations under § 113a may transmit the data stored solely pursuant to the duty of retention under § 113a

1. for the prosecution of criminal offences,

2. to ward off substantial dangers to public security, or

3. to perform the statutory duties of the authorities of the Federation and the Länder for the protection of the constitution, of the Federal Intelligence Service (Bundesnachrichtendienst ) and of the Military Counterintelligence Service (Militärischer Abschirmdienst )

to the competent agencies at their request, to the extent that this is provided for in the relevant statutory provisions referring to § 113a and the transmission has been ordered in the individual case; it may not use the data for other purposes, with the exception of giving information pursuant to § 113. § 113.1 sentence 4 applies with the necessary modifications.

The provision in the Code of Criminal Procedure relating to retrieval of data is as follows:

§ 100g of the Code of Criminal Procedure

(1) If specific facts create the suspicion that a person, as perpetrator or accessory,

1. has committed a criminal offence that even in an individual case is of substantial importance, in particular a criminal offence listed in § 100a.2 above, or, in cases in which attempt constitutes an offence, has attempted to commit such an offence, or has committed a criminal offence preparatory thereto or

2. has committed an offence by means of telecommunications,

then, even without the knowledge of the person concerned, traffic data (§ 96.1 and § 113a of the Telecommunications Act) may be collected to the extent that this is necessary for the investigation of the facts or the establishment of the whereabouts of the suspect. In the case of sentence 1 no. 2, the measure is permissible only if the investigation of the facts or the establishment of the whereabouts of the suspect would be impossible in another way and the collection of the data is in a reasonable proportion to the importance of the matter. The collection of location data in real time is permissible only in the case of sentence 1 no. 1.

(2) § 100a.3 and § 100b.1 to § 100b.4 sentence 1 apply with the necessary modifications. Notwithstanding § 100b.2 sentence 2 no. 2, in the case of a criminal offence of substantial importance it is sufficient to adequately determine the place and time of the telecommunications if the investigation of the facts or the establishment of the whereabouts of the suspect in another way would be impossible or considerably more difficult.

(3) If the collection of traffic data is not made on the responsibility of the telecommunications service provider, then after the end of the communications process it is governed by the general provisions.

(4) In accordance with § 100b.5, a summary of measures under subsection 1 shall be prepared annually; this shall state:

1. the number of proceedings in which measures under subsection 1 have been taken;

2. the number of orders for measures under subsection 1, classified according to original orders and renewal orders;

3. the criminal offence that occasioned the order in each case, classified according to subsection 1 sentence 1 nos. 1 and 2;

4. the number of past months for which the traffic data under subsection 1 was requested, starting at the time when the order was made;

5. the number of measures that have produced no results because the data retrieved were in whole or in part not available.

§ 100a of the Code of Criminal Procedure, referred to in § 100g of the Code of Criminal Procedure, reads (in part):

§ 100a of the Code of Criminal Procedure

(1) Even without the knowledge of the persons affected, telecommunications may be monitored and recorded if

1. specific facts create the suspicion that a person, as perpetrator or accessory, has committed a serious criminal offence listed in subsection 2, has attempted to commit such an offence in cases in which an attempt constitutes an offence, or has committed a criminal offence preparatory thereto,

2. the offence is serious even if committed independently, and

3. it would be considerably more difficult or impossible to research the facts or establish the whereabouts of the suspect in another way.

(2) Serious criminal offences in the meaning of subsection 1 number 1 are:

1. from the Criminal Code (Strafgesetzbuch ):

a) criminal offences of treason against peace, of high treason and of endangerment of the democratic state based on the rule of law, and of treason and of endangerment of external security under §§ 80 to 82, 84 to 86, 87 to 89 and 94 to 100a,

b) bribery of members of parliament under § 108e,

c) criminal offences against national defence under §§ 109d to 109h,

d) criminal offences against public order under §§ 129 to 130,

e) counterfeiting money and stamps under §§ 146 and 151, in each case also in conjunction with § 152, and under § 152a.3 and § 152b.1 to § 152b.4,

f) criminal offences against sexual self-determination in the cases of §§ 176a, 176b, 177.2 no. 2 and of § 179.5 no. 2,

g) the dissemination, acquisition and possession of writings constituting child pornography under § 184.1 to § 184.3,

h) murder and voluntary manslaughter under §§ 211 and 212,

i) criminal offences against personal freedom under §§ 232 to 233a, 234, 234a, 239a and 239b,

j) gang theft under § 244.1 no. 2 and aggravated gang theft under § 244a,

k) criminal offences of robbery and extortion under §§ 249 to 255,

l) receiving stolen goods for commercial purposes, gang receiving of stolen goods and gang receiving of stolen goods for commercial purposes under §§ 260 and 260a,

m) money laundering and concealment of unlawfully obtained assets under § 261.1, § 261.2 and § 261.4,

n) fraud and computer fraud subject to the conditions set out in § 263.3 sentence 2 and in the case of § 263.5, in each case also in conjunction with § 263a.2,

o) subsidy fraud subject to the conditions set out in § 264.2 sentence 2 and in the case of § 264.3 in conjunction with § 263.5,

p) criminal offences of falsification of documents subject to the conditions set out in § 267.3 sentence 2 and in the case of § 267.4, in each case also in conjunction with § 268.5 or § 269.3, and under § 275.2 and § 276.2,

q) criminal bankruptcy subject to the conditions set out in § 283a sentence 2,

r) criminal offences in restraint of competition under § 298 and, subject to the conditions set out in § 300 sentence 2, under § 299,

s) criminal offences constituting a public danger in the cases of §§ 306 to 306c, 307.1 to 307.3, of § 308.1 to § 308.3, of § 309.1 to § 309.4, of § 310.1, of §§ 313, 314, 315.3, of § 315b.3 and of §§ 316a and 316c,

t) taking bribes and bribery under §§ 332 and 334,

2. from the Tax Code (Abgabenordnung ):

a) tax evasion subject to the conditions set out in § 370.3 sentence 2 no. 5,

b) smuggling for commercial purposes, smuggling with violence and organised smuggling under § 373,

c) receiving, concealing or selling property obtained by tax evasion in the case of § 374.2,

3. from the Medicinal Products Act (Arzneimittelgesetz ):

criminal offences under § 95.1 no. 2a subject to the conditions set out in § 95.3 sentence 2 no. 2 letter b,

4. from the Asylum Procedure Act (Asylverfahrensgesetz ):

a) inducing an abusive asylum application under § 84.3,

b) commercial and organised inducing of an abusive asylum application under § 84a,

5. from the Residence Act (Aufenthaltsgesetz ):

a) trafficking in aliens under § 96.2,

b) trafficking resulting in death and commercial and organised trafficking under § 97,

6. from the Foreign Trade and Payments Act (Außenwirtschaftsgesetz ):

criminal offences under § 34.1 to § 34.6,

7. from the Narcotics Act (Betäubungsmittelgesetz ):

a) criminal offences under a provision referred to in § 29.3 sentence 2 no. 1 subject to the conditions set out therein,

b) criminal offences under §§ 29a, 30.1 nos. 1, 2 and 4 and §§ 30a and 30b,

8. from the Precursor Monitoring Act (Grundstoffüberwachungsgesetz ):

criminal offences under § 29.1 subject to the conditions set out in § 29.3 sentence 2,

9. from the War Weapons Control Act (Gesetz über die Kontrolle von Kriegswaffen ):

a) criminal offences under § 19.1 to § 19.3 and § 20.1 and § 20.2, and under § 20a.1 to § 20a.3, in each case in conjunction with § 21,

b) criminal offences under § 22a.1 to § 22a.3,

10. from the Code of Crimes Against International Law (Völkerstrafgesetzbuch ):

a) genocide under § 6,

b) crimes against humanity under § 7,

c) war crimes under §§ 8 to 12,

11. from the Weapons Act (Waffengesetz ):

a) criminal offences under § 51.1 to § 51.3,

b) criminal offences under § 52.1 nos. 1 and 2 letters c and d, and § 52.5 and § 52.6.

…

II.

The first to third and fifth to eighth complainants use, for private and business purposes, a number of telecommunications services such as fixed-network connections, mobile telephones, Internet access services and email. The fourth complainant develops and markets the software for a commercial Internet anonymisation service.

The complainants submit that the application for a temporary injunction is well-founded firstly because the provisions challenged by the constitutional complaint manifestly infringe the Basic Law (Grundgesetz ). At all events, they submit, its application should be suspended as the result of a weighing of consequences.

They state that the provisions challenged, by reason of their broad impact, impair not only the individual’s opportunities of development, but to a significant extent the public good as a whole. The retention of telecommunications traffic data without occasion may, they state, massively intimidate the population. Consequently it is to be feared that sensitive contacts and communications will either be made more difficult or come to an end altogether.

In contrast, they submit, the disadvantages that would be connected with a suspension of the application of §§ 113a, 113b of the Telecommunications Act would be less serious. Only in exceptional cases would the suspension result in the loss of evidence. The existing possibilities of access to traffic data that have been stored for invoicing purposes or would be stored under a judicial order, they state, remain in existence. They submit that these possibilities have ensured an effective administration of criminal justice in the past years and have been further extended by the Act for the Amendment of Telecommunications Surveillance.

They state that Community law does not prevent the granting of the temporary injunction applied for. They submit that Directive 2006/24/EC is formally contrary to Community law and incompatible with the Community fundamental rights recognised by the European Court of Justice.

III.

Opinions on the application for a temporary injunction were submitted by the Federal Government and the governments of the Länder Bavaria, Brandenburg, Hamburg and Rhineland-Palatinate.

1. The Federal Government, at all events, regards the application as unfounded. It submits that a temporary injunction may not be granted firstly because the constitutional complaint is inadmissible in the proceedings in the main action. To the extent that the provisions challenged implement mandatory requirements of Community law, the Federal Constitutional Court is not competent to review this. It states that, with regard to including the prosecution of criminal offences as a purpose of retention, the German provision does not exceed the requirements of Directive 2006/24/EC. To the extent that § 113b sentence 1 nos. 2 and 3 of the Telecommunications Act makes the retained data available for other purposes in addition to the prosecution of criminal offences, there is at present no independent cause of complaint for lack of authorisations for retrieval under special law.

If, nevertheless, the Federal Government submits, there is a weighing of consequences, this will end in a decision against suspending the operation of the challenged provisions.

For the individual persons whose data are stored there is merely the danger that data are selectively transmitted, although these data might not have become accessible to the state in another way. This information, however, it states, continues to be subject to an independent judicial evaluation and the rules of criminal procedure governing the taking and use of evidence. The mere act of storage is an encroachment of minor intensity, since the stored information could not come to anyone’s knowledge. The deterrent effect of data retention alleged by the complainants is essentially based on an exaggeration and misrepresentation of the challenged provisions.

If the application were successful, according to the Federal Government, the effectiveness of the prosecution of criminal offences would be considerably reduced. As a result of the increasing availability of flat rates, the authorisation to collect data under 100g of the Code of Criminal Procedure is increasingly losing its factual basis with the lack of traffic data. Thus, for example, in the area of dissemination of child pornography, the facts are often not recognised promptly, and therefore the rapid deletion of traffic data in many cases puts an end to the possibilities of investigation. Apart from this, even a delay in providing information may result in the final frustration of the state’s claim to punishment in particular with regard to serious criminal offences, since in many cases evidence is irretrievably lost.

2. The governments of the Länder Bavaria, Brandenburg, Hamburg and Rhineland-Palatinate submitted opinions on planned provisions for traffic data retrieval under Land (state) law and on practical questions of investigation.

B.

The application for a temporary injunction is granted in part.

I.

Under § 32.1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG ), the Federal Constitutional Court, in a case of dispute, may provisionally provide for a situation by temporary injunction if this is urgently necessary for the public welfare in order to avert serious damage, to prevent imminent violence or for another compelling reason. Here, the reasons that are submitted to show that the act of state challenged is unconstitutional must in principle be disregarded unless the constitutional complaint appears from the outset to be inadmissible or patently unfounded (see BVerfGE, 112, 284 (291); established case-law). That is not the case here.

1. However, doubts as to the admissibility of the constitutional complaint do in part arise from the fact that it is also directed against provisions that implement mandatory requirements of Directive 2006/24/EC. However, this does not mean that the constitutional complaint as a whole is to be regarded as inadmissible from the outset.

a) The Federal Constitutional Court no longer exercises jurisdiction over the applicability of secondary Community law that is relied on as a legal basis by German courts and authorities in the sovereign territory of the Federal Republic of Germany, as long as the European Communities generally ensure an effective protection of fundamental rights as against the sovereign powers of the Communities, which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Basic Law in each case (see BVerfGE 73, 339 (387); 102, 147 (162 et seq.)). Accordingly a domestic legal provision that implements a directive in German law is not measured against the fundamental rights of the Basic Law insofar as Community law leaves no latitude in implementation, but lays down mandatory requirements (see BVerfGE 118, 79 (95 et seq.)). Conversely, a provision of German law by which the legislature has, in its own legislative competence, given concrete form to the requirements of a directive or has exceeded such requirements, may permissibly be challenged by a constitutional complaint.

In the present proceedings it is not necessary to decide definitively how far the constitutional complaint is established to be admissible by these standards. It is at all events not completely inadmissible from the outset. The provisions challenged by the complainants are not limited to implementing mandatory Community-law requirements. On the one hand, Directive 2006/24/EC leaves the Member States legislative latitude, for example in specifying the criminal offences for the prosecution of which the retained data may be used. On the other hand, §§ 113a and 113b of the Telecommunications Act, at least in parts, go beyond the mandatory requirements contained in the directive. Thus, for example, § 113b sentence 1 nos. 2 and 3 of the Telecommunications Act permits a retrieval of data not only for the prosecution of criminal offences, but also to ward off dangers and to perform security-service duties. The obligations to retain data contained in § 113a.1 sentence 2 and 113.a.6 of the Telecommunications Act also probably go beyond the duties of storage laid down by Article 3.1 and Article 5.1 of Directive 2006/24/EC.

b) In addition, at the present time the possibility cannot be excluded that the European Court of Justice will declare that Directive 2006/24/EC is null and void in response to the pending action for annulment by Ireland (Case C-301/06) on the grounds that it was not adopted on an appropriate legal basis. In view of the deliberations by which the plaintiff supports its argument that the directive is ultra vires , the action at least does not appear hopeless from the outset (on this, also see Alvaro, Datenschutz-Nachrichten – DANA 2006, p. 52 (53-54); Gitter/Schnabel, MultiMedia und Recht – MMR 2007, p. 411 (412-413); Leutheusser-Schnarrenberger, Zeitschrift für Rechtspolitik – ZRP 2007, p. 9 (11 et seq.); Westphal, Europäische Zeitschrift für Wirtschaftsrecht – EuZW 2006, p. 555 (557 et seq.); Zöller, Goltdammer’s Archiv für Strafrecht – GA 2007, p. 393 (407 et seq.)). If Ireland’s application is successful, there would be scope for the Federal Constitutional Court to comprehensively review the challenged provisions by the standard of German fundamental rights (see BVerfGE 118, 79 (97-98)).

2. The constitutional complaint is also not patently unfounded. Its prospects of success will depend upon whether and subject to what conditions a retention of sensitive data whose collection by state agencies encroaches upon Article 10 of the Basic Law (see BVerfGE 107, 299 (312 et seq.)), that is without occasion, is comprehensive and is made for the purposes provided for in § 113b of the Telecommunications Act is compatible with the Basic Law. It will in addition need to be reviewed how far the constitutional requirements are influenced by the fact that the data retrieved were previously stored for the purpose of a data retrieval that could not be foreseen. These questions cannot be automatically answered on the basis of the previous case-law of the Federal Constitutional Court, but require a comprehensive review in the main action.

II.

1. If – as in the present case – it cannot be established that the constitutional complaint in its entirety is from the outset inadmissible or patently unfounded, if therefore the outcome of the constitutional complaint proceedings must be regarded as open, the consequences that would arise if the temporary injunction were not issued but the constitutional complaint were later successful must be weighed against the disadvantages that would arise if the temporary injunction sought were issued but the constitutional complaint had to be rejected (see BVerfGE 117, 126 (135); established case-law).

a) If a decision suspending the operation of a statute is sought, the weighing of consequences must be subjected to a particularly strict standard (see BVerfGE 3, 41 (44); 104, 51 (55); 112, 284 (292); established case-law). The Federal Constitutional Court may exercise its authorisation to delay the entry into force of a statute only with the greatest restraint, since the issuance of such a temporary injunction is always a significant encroachment on the legislative discretion of parliament. Consequently, a statute may only be provisionally prevented from entering into force if the extent and severity of the damage that would result from its entering into force when it is later established as being unconstitutional clearly outweigh the damage that would ensue in the case of the provisional prevention of the entry into force of a statute that is later shown to be constitutional (see BVerfGE 104, 23 (27); 117, 126 (135); established case-law). In this weighing of consequences, account must be taken of the effects on all persons affected by the statute, not merely of consequences that arise for the complainant (see BVerfGE 112, 284 (292)).

b) The strictness of this standard must be increased even more if a temporary injunction is sought suspending the entry into effect of a provision if that provision implements mandatory requirements of Community law in German law.

In such a case, it is important for the weighing of consequences that the Federal Constitutional Court does not object to a provision to the extent that it transposes mandatory Community-law requirements (see I 1 a above). To this extent, the temporary injunction might exceed the competence of the Federal Constitutional Court to decide in the main action.

In addition, in view of the openness of the Basic Law to European integration (see BVerfGE 89, 155 (183)), account must be taken in the weighing of consequences of the effects that may arise for the Community legal order from the suspension of the operation of a legal provision, to the extent that this provision transposes mandatory Community-law requirements. Such a judicial order may result in a Community-law legislative measure having no effect whatsoever in the Federal Republic of Germany as a whole. If it is ultimately established that the act of Community law is binding on the German legislature, this as a general rule constitutes an interference with the Community interest in effective implementation of Community law.

The case-law of the European Court of Justice on the temporary suspension of the operation of Community-law acts by the courts of Member States also supports suspending the operation of a statute, to the extent that it transposes into domestic law mandatory Community-law requirements, at most in specific exceptional cases. According to this case-law, a domestic court may grant temporary legal protection which in individual cases suspends the operation of Community-law requirements only subject to strict conditions. In particular, appropriate account must be taken of the interest of the Community in the operation of Community law (see European Court of Justice, judgment of 21 February 1991 – C-143/88, C-92/89 – Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest , European Court Reports 1991, I-415, marginal nos. 22 et seq.; judgment of 9 November 1995 – C-465/93 – Atlanta Fruchthandelsgesellschaft mbH and others , European Court Reports 1995, I-3761, marginal nos. 31 et seq.; judgment of 17 July 1997 – C-334/95 – Krüger GmbH & Co. KG , European Court Reports 1997, I-4517, marginal nos. 43 et seq.; judgment of 6 December 2005 – C-461/03 – Gaston Schul , European Court Reports 2005, I-10513, marginal nos. 17 et seq.).

It is not necessary here to decide conclusively whether and subject to what conditions the Federal Constitutional Court may nevertheless suspend the operation of a statute insofar as it transposes mandatory Community-law requirements. However, such a temporary injunction requires at least that the persons affected must be threatened by particularly serious and irreversible damage the weight of which makes it appear acceptable in temporary injunction proceedings to exceed the competence of the Federal Constitutional Court to decide in the main action and severely to impair the Community interest in the effective operation of Community law.

2. By these criteria, the application for the issuance of a temporary injunction is to be granted only in part. A suspension of the retention of telecommunications traffic data ordered by § 113a of the Telecommunications Act is not possible (a). However, the use of this data must be restricted to particular circumstances in criminal law (b). At present there is no occasion for a temporary injunction with regard to the use of data for preventive purposes (c).

a) A suspension of the operation of § 113a of the Telecommunications Act is not possible. The duty of particular providers of telecommunications services to store telecommunications traffic data contained in this provision complies with mandatory requirements of the directive, at least to a great extent. Admittedly, the directive provides for retention of data only for purposes of the investigation and prosecution of serious criminal offences. § 113a of the Telecommunications Act does not contain this restriction of purpose; instead, the Telecommunications Act contains a provision in § 113b of the Telecommunications Act that goes beyond the intended purpose of the directive. However, this form of drafting chosen by the German legislature does not alter the fact that the directive requires comprehensive retention of data.

The data retention alone does not demonstrate particularly serious and irreversible damage that might justify suspending the operation of the norm by a temporary injunction in exceptional cases. It is true that the retention of sensitive data required by § 113a of the Telecommunications Act, comprehensive and without occasion, on virtually everyone, for government purposes that at the time of the storage of the data cannot be foreseen in detail, may have a considerable intimidating effect (on the weight of such effects with regard to fundamental rights, see BVerfGE 113, 29 (46)). Even if the constitutional complaint were successful in the main action, this effect could not be reversed for the period between the entry into force of the provision and the decision of the Federal Constitutional Court.

However, the prejudice to an individual’s freedom and privacy contained in data retention deepens and becomes specific as a potentially irreversible impairment only as a result of a retrieval of the person’s data. The storage of data makes the retrieval possible, and the retrieval leads to concrete burdens. In addition, the weight of a conceivable intimidation effect also depends on the circumstances under which the retained data may be retrieved and used. The further the powers of government agencies extend in this respect, the more the citizens must fear that these agencies are monitoring their communication behaviour.

In view of the connection between data retention and the retrieval of the retained data, retention alone does not entail damage so severe as to require acceptance of the risk that suspending the mere retention of data might possibly exceed the competence of the Federal Constitutional Court to decide in the main action and severely impair the interest in an effective operation of mandatory Community law.

b) On the other hand, the use of the retained data for purposes of the prosecution of criminal offences permitted by in § 113b sentence 1 no. 1 of the Telecommunications Act must be suspended in part until the decision on the constitutional complaint.

aa) The weighing of consequences required by § 32.1 of the Federal Constitutional Court Act shows that public interest in the operation of the provision is in part outweighed by the damage that is threatened by the operation of the provision.

(1) If no temporary injunction were issued, but it later transpired that the constitutional complaint was well-founded, individuals and the general public would be threatened in the interim period by damage of quite considerable weight.

A retrieval of the retained telecommunications traffic data in the individual case may have weighty disadvantages for the person concerned; at least to a large extent these could not be removed by a later declaration of nullity of the provisions on data retention and data retrieval.

(a) The possibility, for a period of six months, of access to all traffic data resulting from the use of telecommunications services constitutes a considerable endangerment to the legal protection of personality established in Article 10.1 of the Basic Law. The fact that a comprehensive collection of data is retained without a concrete occasion also affects the weight of the traffic data retrievals enabled thereby. The data retention affects virtually every citizen during every use of telecommunications equipment, and therefore a large amount of sensitive information about practically everyone is available for state access. As a result, the risk exists for all persons involved in telecommunications traffic that traffic data are retrieved as part of concrete official investigations for a long period of time. This risk takes on concrete shape in the individual retrieval, but in view of the comprehensive recording of the telecommunications behaviour of the population it points far beyond the individual case and risks shaking the free exchange of communication and the trust in the protection of the inaccessibility of telecommunications equipment as a whole (on individual retrievals of data, see BVerfGE 107, 299 (320)).

(b) The retrieval of traffic data itself is a serious and no longer reversible encroachment on the fundamental right under Article 10.1 of the Basic Law. Such a retrieval of data makes it possible to obtain extensive knowledge of the communications behaviour and the social contacts of the person affected, and in some cases even to draw limited conclusions as to the contents of the conversation. In addition, a retrieval of traffic data has a considerably broad effect, since in addition to the person targeted by the request for information it necessarily also includes the other party to the communication, that is, often persons who have no relation to the offence alleged and whose conduct did not occasion the encroachment (see BVerfGE 107, 299 (318 et seq.)).

In addition, in many cases the knowledge obtained by the retrieval of traffic data will form the basis of further investigation measures that would not have been conducted without this knowledge. Such investigation measures, for example searches of homes or monitoring of telecommunications, may in turn be a severe burden on the person affected, no matter whether they confirm or refute the existing suspicion that that person has committed a criminal offence. Nor can the disadvantages of this be remedied when the investigation measure has been completed.

Finally, the retrieved traffic data and the knowledge obtained through further investigation measures that build on the retrieval of traffic data may form the basis of criminal proceedings, and possibly of a criminal conviction of the person affected, that would not have been possible without the data retention and the retrieval of the retained data. If the provisions challenged by the constitutional complaint were incompatible with the Basic Law and therefore void, the conviction in such cases would be based on evidence for the obtaining of which there had been no permission in the course of a constitutionally conducted preliminary investigation. It appears at least doubtful whether the disadvantage inherent in this for the person affected could in every case be completely removed after the provisions on data retention and data retrieval had been declared void.

(2) If a temporary injunction relating to the retrieval of the retained data were issued, but the changed provisions were later found to be constitutional, there might be disadvantages for the public interest in effective prosecution of criminal offences.

However, some of these disadvantages are less weighty and are to be accepted in view of the weight of the damage threatening the individual and the general public from the operation of § 113b sentence 1 no. 1 of the Telecommunications Act if the temporary injunction does not prevent the retained traffic data from being inspected by the service provider as the result of a retrieval request of the criminal prosecution authority, but nevertheless restricts the transmission and use of the record thus obtained until the decision in the main action. However, where a temporary injunction prevents the transmission of the data, retrieval requests should be excluded if they serve to prosecute offences listed in § 100a.2 of the Code of Criminal Procedure, if in addition the requirements of § 100a.1 of the Code of Criminal Procedure are satisfied. Apart from this the data may for the time being not be used.

(a) Such a temporary injunction does not prevent the criminal prosecution authorities from directing retrieval requests to telecommunications service providers pursuant to § 100g.1 of the Code of Criminal Procedure on the basis of an order under § 100g.2 sentence 1 in conjunction with § 100b.1 and § 100b.2 of the Code of Criminal Procedure, if the requests relate to traffic data stored solely on the basis of § 113a of the Telecommunications Act. However, the use of the data collected by a service provider in response to such a request is partially restricted.

If every access to the stored data were forbidden, the danger would arise that the criminal prosecution authorities would be completely prevented from using an effective investigation instrument. Since it cannot at present be foreseen when there will be a decision on the constitutional complaint, it appears probable that with regard to some of the retained data the retention period would have ended before this decision. These data would therefore have to be deleted pursuant to § 113a.11 of the Telecommunications Act and would no longer be available for later retrieval. This might result in criminal investigations failing although they could have been completed successfully with the help of the stored data.

However, this disadvantage for the interest in criminal prosecution may be largely avoided if it is not the retrieval request that is excluded, but merely the transmission and use of the data collected by the provider in question in response to the request that is suspended. If the provisions challenged by the constitutional complaint are found to be constitutional, these data could then subsequently be used in full for the purpose of criminal prosecution. There need then be no fear that the criminal prosecution is frustrated because the retained data have meanwhile been deleted.

(b) The transmission and use of the data collected by a service provider in response to a retrieval request are, however, not to be restricted in the cases in which the subject of the preliminary investigation is an offence listed in § 100a.2 of the Code of Criminal Procedure and in addition the requirements of § 100a.1 of the Code of Criminal Procedure are satisfied. However, the temporary injunction covers the other cases of § 100g.1 of the Code of Criminal Procedure where the authorisation to retrieve applies.

(aa) If the transmission of the retrieved data to and their use by the criminal prosecution authorities is suspended, the further investigations may as a result be delayed until the decision on the constitutional complaint. This delay may in the individual case have the consequence that the preliminary investigation in question fails in whole or in part, although without the suspension it could have been completed successfully. In particular, evidence may be lost in the interim period that would have been available if the further investigations had not been delayed and would have been collected after the retrieval of data.

How far this risk must be accepted for the sake of the protection of the persons affected depends on the weight of the state’s interest in investigation. To assess this in temporary injunction proceedings, the Federal Constitutional Court must as a general rule proceed on the basis of the legislature’s assessment.

In § 100a.2 of the Code of Criminal Procedure, the legislature categorises the criminal offences there named as so serious that in the assessment of the legislature they justify surveillance of telecommunications, which may be prepared by a retrieval of traffic data under 100g of the Code of Criminal Procedure. In the case of telecommunications surveillance, it is clear that a delay of the preliminary investigation may lead to evidence being irretrievably lost. The retrieval of traffic data may also serve to establish approaches for the investigation, without preparing telecommunications surveillance. In these cases too, the list of criminal offences in § 100a.2 of the Code of Criminal Procedure provides a guideline as to which criminal offences the legislature deems so serious that they may even justify severe encroachments on the fundamental right under Article 10.1 of the Basic Law.

In this connection, it is not necessary to examine, in the temporary injunction proceedings, whether the German legislature was under an obligation under Directive 2006/24/EC to include all the criminal offences listed in § 100a.2 of the Code of Criminal Procedure in the authorisation for retrieval of § 100g of the Code of Criminal Procedure. At all events, when the legislature transposed the directive, it had a considerable latitude for assessment and drafting in this connection. It does not appear that the legislature was obliged on the basis of the directive to find that further criminal offences, not contained in the list, were offences qualified to permit a retrieval of traffic data.

(bb) Insofar as the preliminary investigation in the course of which, under § 100g.1 no. 1 of the Code of Criminal Procedure in conjunction with § 113b sentence 1 no. 1 of the Telecommunications Act, retained telecommunications traffic data are to be retrieved relates to a criminal offence that is listed in § 100a.2 of the Code of Criminal Procedure, the public interest in the prosecution of criminal offences, in the assessment of the legislature, on which the temporary injunction proceedings must rely, has as a general rule such a weight that delay by a temporary injunction is unacceptable.

However, § 100g.1 no. 1 of the Code of Criminal Procedure in conjunction with § 100a.2 of the Code of Criminal Procedure is to be applied restrictively, in the interest of the greatest possible protection of the users of telecommunications services, for the duration of the temporary injunction inasmuch as a retrieval of the traffic data retained under § 113a of the Telecommunications Act is additionally subject to the satisfaction of the requirements – which are also set out in § 100g of the Code of Criminal Procedure, but only in part – contained in § 100a.1 of the Code of Criminal Procedure. Only if the listed offence is serious even in the individual case (§ 100a.1 no. 2 of the Code of Criminal Procedure) is it guaranteed that the legislature’s assessment of the seriousness of the listed offence in question can be relied on (on the authorisation for retrieval of § 100g of the Code of Criminal Procedure, old version, see BVerfGE 107, 299 (322)). In addition, the only circumstances in which, at least as a general rule, it must be feared that a delay of the use of the retained traffic data may frustrate the criminal prosecution in its entirety are when it is to be assumed that it would be considerably more difficult or impossible to research the facts or establish the whereabouts of the suspect in another way (§ 100a.1 no. 3 of the Code of Criminal Procedure). In cases in which the requirements of § 100a.1 no. 3 of the Code of Criminal Procedure are not satisfied, such a risk of failure is unlikely to exist, or if at all, then only in exceptional cases; this residual risk, in view of the weight of the disadvantages that threaten the individual and the general public as a result of a retrieval of the retained data, is acceptable.

(cc) In contrast, in the cases of § 100g.1 of the Code of Criminal Procedure in which the requirements of § 100a.1 and § 100a.2 of the Code of Criminal Procedure are not satisfied, the transmission and use of the retained data is to be temporarily suspended.

Initially, this affects preliminary investigations that relate to an offence listed in § 100a.2 of the Code of Criminal Procedure but with regard to which the requirements of § 100a.1 of the Code of Criminal Procedure have not been satisfied.

In addition, the authorisation of retrieval of § 100g.1 of the Code of Criminal Procedure exceeds the list of offences in § 100a.2 of the Code of Criminal Procedure with regard to the criminal offences to be investigated. Retrievals of traffic data are also enabled with regard to another “criminal offence that even in an individual case is of substantial importance” (§ 100g.1 no. 1 of the Code of Criminal Procedure) or if the criminal offence was committed by means of telecommunications (§ 100g.1 no. 2 of the Code of Criminal Procedure). In these cases it is necessary to accept the risk that a delay of the use of the data may frustrate the preliminary investigation in its entirety. This risk is mitigated by the fact that the criminal prosecution authorities retain their already existing possibilities of accessing the telecommunications traffic data stored by the telecommunications service providers in their own interest, for example under § 97 in conjunction with § 96.1 of the Telecommunications Act for the purpose of invoicing. In addition, § 100g.1 of the Code of Criminal Procedure has extended the previous powers of the criminal prosecution authorities inasmuch as it is now possible for traffic data to be exported in real time. The complainants did not make this extension the subject of the present proceedings, nor therefore of the application for a temporary injunction. This possibility is therefore unaffected by the temporary injunction.

The fact that the remaining criminal offences were not included in the list of § 100a.2 of the Code of Criminal Procedure – which is already very long – indicates that the legislature attached less significance to them with regard to encroachments on the fundamental right under Article 10.1 of the Basic Law. Correspondingly less weight is to be attached to the damage arising from a suspension of the use of the data that would have to be weighed against the infringement of the fundamental rights of the persons affected in the weighing of consequences.

In addition, in the cases in which the subject of the preliminary investigation is not a criminal offence listed in § 100a.2 of the Code of Criminal Procedure, the retrieval of traffic data may not serve in the preparation of telecommunications surveillance, but merely to obtain other approaches for the investigation. In such cases, the risk that as the result of the delay of use of the data the investigations fail in their entirety is more acceptable than in the cases of § 100a.2 of the Code of Criminal Procedure.

bb) Insofar as a temporary injunction is to be issued by these standards, the criminal investigation authorities, subject to the requirements of § 100b.1 to § 100b.4 sentence 1 of the Code of Criminal Procedure, remain authorised under § 100g of the Code of Criminal Procedure in conjunction with § 113b sentence 1 no. 1 of the Telecommunications Act to direct retrieval requests to the service providers which have an obligation to retain and evaluate data under §§ 113a and 113b of the Telecommunications Act. In response to a retrieval request, a service provider must evaluate the retained data in accordance with the request. However, the result of the search is to be communicated to the criminal prosecution authority without delay only if the order for the retrieval (§ 100g.2 in conjunction with § 100b.1 and § 100b.2 of the Code of Criminal Procedure) states that this relates to an offence listed in § 100a.2 of the Code of Criminal Procedure and that the requirements of § 100a.1 of the Code of Criminal Procedure have been satisfied. Failing this, the result of the search is not to be communicated to the criminal prosecution authority, but to be preserved by the service provider, in order that if necessary it can be communicated later; this preservation is to extend beyond the deletion period of § 113a.11 of the Telecommunications Act. The service provider may not use the search result for its own purposes and must ensure that third parties have no access to it.

cc) The Federal Government must observe the practical effects of data retention and of the temporary injunction related to this until the decision in the main action, and is to report to the Federal Constitutional Court in accordance with the following provisos.

The report is to serve the Senate on the one hand to assess the significance of data retention for the prosecution of criminal offences – which, in addition to its advantages in investigation practice, also includes the disadvantages to an effective prosecution of criminal offences that arise from the partial suspension of § 113b sentence 1 no. 1 of the Telecommunications Act – and on the other hand the weight of the disadvantages threatened by a retrieval of the retained data. The information is to enable the Senate to decide whether, if necessary, the temporary injunction should be amended and whether it is to be renewed. With respect to the disadvantages arising from the data retention and the retrievals, it is also relevant to what extent and for what purposes the retained data are used. This too will be a factor in the Senate’s review as to whether the temporary injunction issued adequately protects the interests of the individual and of the general public.

For these aims of the Federal Government, the Länder and the Federal Public Prosecutor General (Generalbundesanwalt ) must report on the measures ordered in their jurisdiction under § 100g of the Code of Criminal Procedure – for example, through the Federal Office of Justice (Bundesamt der Justiz ), which has already been entrusted with a comparable evaluation under § 100g.4 in conjunction with § 100b.5 of the Code of Criminal Procedure – initially for the period from 1 May 2008 to 1 August 2008. The Federal Government must prepare a summary of the measures ordered nationwide in the report period and transmit this, together with the individual reports, to the Federal Constitutional Court by 1 September 2008. The reports must contain the following information:

the number of preliminary investigations in which measures under § 100g.1 of the Code of Criminal Procedure have been conducted;

the number of orders under § 100g.1 of the Code of Criminal Procedure, classified according to original orders and renewal orders;

the number of preliminary investigations and orders with regard to which it was necessary to access data retained solely pursuant to § 113a of the Telecommunications Act in order to process retrieval requests under § 100g.1 of the Code of Criminal Procedure;

the number of preliminary investigations and orders with regard to which, on the basis of the temporary injunction issued in the present proceedings, the data collected by the service providers were not communicated to the criminal prosecution authority but were stored by the service providers;

the originating criminal offences that in each case underlie the preliminary investigations.

c) There is at all events at present no cause to suspend the operation of § 113b sentence 1 nos. 2 and 3 of the Telecommunications Act.

These provisions open the data retained under § 113a of the Telecommunications Act for retrievals with a preventive purpose by regulatory authorities and security authorities. In this respect, however, § 113b of the Telecommunications Act is at present devoid of effect, since to date there have been no retrieval authorisations under special law that refer explicitly to § 113a of the Telecommunications Act. In view of this, no serious damage threatens the individual and the general public as a result of such retrievals at the present time.

The complainants are free, if they wish, to make an application for suspension of the operation of § 113b sentence 1 nos. 2 and 3 of the Telecommunications Act if concrete damage arising from these provisions is foreseeable because authorisations under special law to retrieve the retained data have been created or are immediately imminent. It is not necessary here to decide what chances of success such an application would have.

III.

The decision on the reimbursement of expenses is based on § 34a.3 of the Federal Constitutional Court Act.