Order of 23 September 2025

R e a s o n s :

1

With his constitutional complaint, the complainant challenges his criminal conviction and prison sentence, which were based on information from the surveillance of his ANOM-communications obtained by way of mutual assistance from the United States of America (USA) and used as evidence, as well as the dismissal of his appeal against the conviction on points of law. At the same time, the complainant seeks a preliminary injunction suspending the detention order against him until these constitutional complaint proceedings have concluded.

I.

2

1. In its judgment of 31 January 2024, the Mannheim Regional Court convicted the complainant of six counts of illicit trafficking of narcotic drugs in not insignificant amounts and sentenced him to an aggregate prison term of six years and six months. The confiscation of the value of criminal proceeds in the amount of EUR 106,600 was also ordered. The factual findings supporting the conviction were almost entirely based on evidence from text messages from encrypted ANOM-communications that could be attributed to the complainant. The Regional Court verified the authenticity of the data on the basis of reports by the Federal Criminal Police Office on the collection and transmission of the data. During that process, the Regional Court found no indications that the data had been falsified. The transmitted messages and contents of the communications were found by the Regional Court to be internally consistent.

3

2. The complainant appealed against this judgment on points of law. In addition to a substantive complaint [...], he also raised procedural complaints against the use of ANOM-communications as evidence. He argued, with reference to additional information, that these communications are inadmissible as evidence. The Public Prosecutor General requested the rejection of the appeal on points of law. He argued that none of the procedural complaints were lodged in an admissible manner and that they did not have merit. In this regard, the Public Prosecutor General presented the procedural circumstances of the case, insofar as they concerned the collection of the ANOM-data abroad and transmission to German law enforcement agencies.

4

3. With its order of 21 January 2025, the Federal Court of Justice dismissed the complainant’s appeal on points of law as unfounded, insofar as it pertained to the use of the ANOM-data as evidence. [...] Concerning the (admissible) procedural complaints through which the accused (who is the complainant in this proceeding) challenged the use of messages sent through the ANOM-Messenger App as evidence, the Senate referred to its judgment of 9 January 2025 - 1 StR 54/24 -, para. 10 ff. The fact that the analysis of the copied data did not amount to mass surveillance and did not occur without specific grounds was supported by further factual findings regarding ANOM in the challenged judgment. It held that the interference with the right to privacy of telecommunications protected by Art. 10(1) of the Basic Law and the general right of personality under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law was limited.

II.

5

With his constitutional complaint, the complainant claims that the challenged decisions violate his right to a fair trial in accordance with the rule of law protected by Art. 2(1) in conjunction with Art. 20(3) of the Basic Law and his general right of personality under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law. Furthermore, he alleges a violation of his right to a lawful judge (Art. 101(1) second sentence of the Basic Law). [...]

6-17

[…]

III.

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The constitutional complaint is not admitted for decision, because it does not meet the prerequisites for admission pursuant to § 93a(2) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). The constitutional complaint does not have general constitutional significance (§ 93a(2) letter a Federal Constitutional Court Act), nor is its admission necessary to enforce the complainant’s constitutional rights within the meaning of § 93a(2) letter b of the Federal Constitutional Court Act (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 90, 22 <24 ff.>; 96, 245 <248 ff.>). The constitutional complaint is inadmissible. It does not satisfy the procedural requirements of substantiation as laid out in § 23(1) second sentence, § 92 of the Federal Constitutional Court Act.

19

1. To meet the requirements of § 23(1) second sentence, § 92 of the Federal Constitutional Court Act, the complainant must present the facts of the case which they claim amount to a violation of fundamental rights in a coherent and substantiated manner (cf. BVerfGE 81, 208 <214>; 113, 29 <44>; 130, 1 <21>). Furthermore, the constitutional complaint must consider the underlying ordinary law, analyse the constitutional significance of the case and provide sufficient substantiation for the assumption that a violation of fundamental rights appears at least possible (cf. BVerfGE 28, 17 <19>; 89, 155 <171>; 140, 229 <232 para. 9>; 149, 346 <359 para. 23>). If the constitutional complaint is directed against judicial decisions, a substantiated argument for a violation of fundamental rights also requires a discussion of the reasoning underlying the challenged decision (cf. BVerfGE 105, 252 <264>; 140, 229 <232 para. 9>; 149, 346 <359 para. 24>). In this regard, the complainant must demonstrate in detail that the decision is based on the alleged violation of fundamental rights (cf. BVerfGE 89, 48 <60>) and thus must refute all the reasons that form the basis of the decision in its entirety in a substantiated manner (cf. BVerfGE 105, 252 <264>). If existing case-law of the Federal Constitutional Court addresses the constitutional questions raised in the constitutional complaint, the alleged violation of fundamental rights must be substantiated in accordance with the constitutional standards developed by the Court; a generalised claim of a constitutional violation is insufficient in this regard (cf. BVerfGE 101, 331 <345 f.>; 123, 186 <234>; 130, 1 <21>; 140, 229 <232 para. 9>; 142, 234 <251 para. 28>; 149, 346 <359 para. 23>).

20

In addition, in order to enable the Federal Constitutional Court to review the constitutional complaint without having to conduct further enquiry, the submission of additional documents may be required (cf. BVerfGE 93, 266 <288>; 149, 346 <360 para. 25>; Chamber Decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 5, 170 <171>; cf. also European Court of Human Rights (ECtHR), Mork v. Germany, Judgment of 9 June 2011, no. 31047/04, 43386/08, §§ 37, 39). A mere general reference to further documents is not sufficient, as it is not the task of the Federal Constitutional Court to examine the documents referenced and other annexes and search for constitutionally relevant facts or submissions (cf. BVerfGE 80, 257 <263>; 83, 216 <228>; BVerfGK 19, 362 <363>).

21

If the complainant wishes to deviate from the findings of fact or their interpretation by the ordinary courts, he must combine his alternative submission of the facts with a constitutional challenge of the facts established by the ordinary courts (cf. BVerfGE 83, 119 <124 f.>; Federal Constitutional Court, Order of the First Chamber of the Second Senate of 1 November 2024 - 2 BvR 684/22 -, para. 45 with further references).

22

Finally, the complainant’s submissions must be coherent and truthful (cf. Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 11 July 2018 - 2 BvR 1548/14 -, para. 16 with further references).

23

2. The constitutional complaint does not satisfy these requirements. The complainant’s submissions do not support his claim of a violation of his right to a fair trial in accordance with the rule of law protected by Art. 2(1) in conjunction with Art. 20(3) of the Basic Law or his general right of personality under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law (see a) below). Furthermore, it does not support his claim of a violation of his right to a lawful judge in accordance with Art. 101(1) second sentence of the Basic Law (see b) below). The complainant did not conclusively demonstrate the possibility of a violation of a fundamental right or a right that is equivalent to a fundamental right.

24

a) Based on the complainant’s submissions, there is no indication that the challenged decisions of the Regional Court or the Federal Court of Justice resulted in a violation of his right to a fair trial protected by Art. 2(1) in conjunction with Art. 20(3) of the Basic Law or his general right of personality under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law. Contrary to the view of the complainant, the use of the ANOM-data as evidence is not objectionable under constitutional law.

25

aa) (1) In its case-law, the Federal Constitutional Court recognises that a prohibition against the use of evidence is an exception that requires justification under constitutional law. This is because a prohibition limits the ability of law enforcement agencies to prove or disprove the occurrence of a criminal act, which adversely affects the central objective of criminal proceedings - reaching a decision that is just and materially correct. Violations of fundamental rights which occur outside of the main hearing do not necessarily warrant the conclusion that the judgment delivered by the criminal court, which was based on the findings in the main hearing, also violates constitutional law and the right to fair trial or the general right of personality in particular (cf. BVerfGE 130, 1 <28>). Consequently, it is also the established case-law of the criminal courts that there is no fundamental principle in criminal procedural law which stipulates that every violation of the law on obtaining evidence automatically leads to an inadmissibility of such evidence in the context of criminal procedure. Consequently, the question whether a violation leads to an inadmissibility of the evidence must be answered on a case-by-case basis, taking into account the specific circumstances, especially the nature of the violation and its weight in a balancing of the relevant conflicting interests (‘Weighing of Interest Requirement’, cf. BVerfGK 14, 107 <111>; Federal Constitutional Court, Order of the First Chamber of the Second Senate of 1 November 2024 - 2 BvR 684/22 -, para. 97; -, Decisions of the Federal Court of Justice in Criminal Matters, Entscheidungen des Bundesgerichtshofes in Strafsachen – BGHSt 38, 214 <219 f.>; 44, 243 <249>; 51, 285 <289 f. para. 20>; […]). A prohibition against the use of evidence is the exception, not the rule, as it can only be assumed on the basis of an explicit legal rule or due to significant and overarching reasons in an individual case (cf. BGHSt 40, 211 <217>; 44, 243 <249>; 51, 285 <290 para. 20>). Assessing the consequences of a violation of law in the process of obtaining information or bringing it into the criminal proceedings and deciding whether such a violation leads to a prohibition against the use of evidence is primarily the task of the competent ordinary courts (cf. BVerfGE 130, 1 <31>; BVerfGK 4, 283 <285>; 9, 174 <196>; 14, 107 <111>; 18, 193 <203>; Federal Constitutional Court, Order of the First Chamber of the Second Senate of 1 November 2024 - 2 BvR 684/22 -, para. 97).

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(2) However, in an individual case, a prohibition against the use of evidence may be required by the Constitution. Thus, as was correctly pointed out in the constitutional complaint, a prohibition for constitutional reasons may result from the fact that a violation of law causes the accused to not have sufficient opportunity to influence the course and outcome of the proceedings, that the minimum standards for effectively establishing the truth are no longer met or that the use of the information results in a disproportionate interference with the general right of personality. Furthermore, the use of information which was obtained in violation of law may not be permitted if this would encourage the procurement of the evidence in violation of law. A prohibition against the use of evidence may therefore be required in case of severe, deliberate or objectively arbitrary procedural violations that involved a calculated or systematic disregard of the safeguards provided by fundamental rights (cf. BVerfGE 130, 1 <28> with further references).

27

(3) Generally, the same applies to the use of evidence that was obtained from sources outside of Germany and introduced into German criminal proceedings (Federal Constitutional Court, Order of the First Chamber of the Second Senate of 1 November 2024 - 2 BvR 684/22 -, para. 97). Of course, this does not mean that prior to using evidence obtained abroad through mutual assistance, the trial court in Germany is required to verify the legality of the collection of the evidence provided by the foreign state in order to be able to potentially establish a (derivative) prohibition against the use of the evidence – with a weighing the relevant interests if necessary – if the collection of the evidence proves illegal. Rather, in accordance with the established case-law of the Federal Court of Justice, which the constitutional complaint does not dispute on constitutional grounds, the courts of the requesting (German) state do not generally review the sovereign decisions of the requested state by the standard of the relevant laws of that state (cf. Federal Court of Justice, Order of 21 November 2012 - 1 StR 310/12 -, BGHSt 58, 32 para. 34 with further references; Order of 9 April 2014 - 1 StR 39/14 -, Neue Zeitschrift für Strafrecht – NStZ 2014, p. 608; Order of 2 March 2022 - 5 StR 457/21 -, BGHSt 67, 29 para. 26; Order of 9 January 2025 - 1 StR 54/24 -, juris, para. 18).

28

Furthermore, the trial court is generally not required to assess the collection of evidence by the requested state by the standards of German law, which from the outset are not applicable to the collection of evidence abroad (cf. Federal Court of Justice, Order of 2 March 2022 - 5 StR 457/21 -, BGHSt 67, 29 para. 26). In the context of mutual legal assistance, the structures and substantive content of foreign legal orders and perspectives must generally be adhered to even if they are not necessarily consistent with domestic views in an individual case (cf. BVerfGE 113, 154 <162 f.>; BVerfG, Order of the Second Chamber of the Second Senate of 4 December 2019 - 2 BvR 1258/19 and 2 BvR 1497/19 -, para. 55; Federal Court of Justice, Order of 2 March 2022 - 5 StR 457/11 -, BGHSt 67, 29 para. 26; Judgment of 9 January 2025 - 1 StR 54/24 -, juris, para. 18).

29

Evidence which has been obtained by way of mutual legal assistance may, however, including for constitutional reasons, be inadmissible if the evidence was obtained in the requested state in disregard of national or European minimum standards regarding the rule of law. The limits on the use of evidence established by the Federal Court of Justice with reference to the national and European ordre public are breached if the collection of evidence abroad did not meet the indispensable minimum level of fundamental rights protection and the minimum standards under international law insofar as it binds the Federal Republic of Germany in accordance with Art. 25 of the Basic Law. This is especially the case if the collection of evidence violated the prohibition of torture or inhuman and degrading treatment or if it caused an interference with the essence of fundamental rights in another way relevant to human dignity. The essence of procedural fairness and the principle of proportionality are also indispensable principles in this regard (cf. Federal Court of Justice, Judgment of 9 January 2025 - 1 StR 54/24 -). As with the – considerably more intrusive and, with regard to possible violations of fundamental and human rights by foreign states, inherently riskier – case of extradition proceedings between Germany and other states (cf. on this BVerfGE 109, 13 <35 f.>; 109, 38 <61>; 140, 317 <349 para. 68>; Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 4 December 2019 - 2 BvR 1258/19 und 2 BvR 1497/19 -, para. 59), the principle of mutual trust must also be observed when information collected through telecommunications surveillance is obtained (cf. Federal Court of Justice, Judgment of 9 January 2025 - 1 StR 54/24 -, juris, para. 29). In accordance with the principle of mutual trust, it may be assumed that principles of the rule of law and human rights protection have been observed in the foreign state, as long as this is not refuted by the facts of the case (cf. BVerfGE 140, 317 <349 para. 68>).

30

aa) On the basis of these standards, which themselves are not called into question by the constitutional complaint, the challenges raised therein are not persuasive.

31

(1) To the extent that the complainant contends that the ordinary courts did not sufficiently consider whether the procedures to obtain the ANOM-data complied with indispensable constitutional principles in accordance with Art. 79(3) in conjunction with Art. 1 and Art. 20(3) of the Basic Law and a minimum level of fundamental rights protection because ‘nearly nothing is known’ regarding the means by which the data was obtained, this is contradicted by the complainant’s own statement of the facts. According to this, it is known that at the direction of the FBI, the software on ANOM-devices was equipped with a ‘backdoor’ function that ensured that every message sent via the messenger service was sent to a so-called iBot server without the user’s knowledge, in the form of an encrypted copy that could be uniquely matched to the respective device. These messages would then first be decrypted by the FBI in a temporary storage on that server, then re-encrypted into that storage and finally forwarded to the transfer server with a few days’ delay. In this way, the communication of ANOM-users was supposed to be monitored continuously. In accordance with the factual submissions of the complainant, it is known that a still unknown EU Member State made the iBot server available for the storage of messages on the basis of a bilateral mutual legal assistance treaty with the USA and transmitted them to the USA without decrypting and evaluating them itself. According to the findings of the Federal Court of Justice, the process was conducted by the third country on the basis of court orders obtained in accordance with its procedural law. These findings may have been called into question by the constitutional complaint, but could not be challenged in a legally effectively way (cf. Federal Constitutional Court, Order of the First Chamber of the Second Senate of 1 November 2024 - 2 BvR 684/22 -, para. 45).

32

The only information lacking is the identity of the state which hosted the iBot server and the specific circumstances and content of the court orders. However, in light of the standards laid out above, it is not clear why this information is relevant to the present case. While a review of these orders may have provided information as to whether the retention and transmission of the data to the USA complied with the law of the unknown EU Member State, in light of the standards laid out above, that information is ultimately not relevant. It is also unclear how deficiencies in the procedure or the content of these unknown court orders could have led to the conclusion that the collection of ANOM-data no longer complied with basic rule of law requirements. This is because, according to the factual findings submitted, the circumstances of the process of data collection as well as its extent, ultimately limited to the users of ANOM-devices, was dictated by the FBI; the Member State itself did not conduct an analysis of the data or made use of its content. The Federal Court of Justice’s determination that as a consequence, the courts orders could not have contributed to ‘mass surveillance without specific grounds’ is also correct from the perspective of constitutional law.

33

To the extent that the complainant contends in this context that the principle of mutual trust could not apply in the present case because, as a result of the secrecy on the part of the USA regarding the Member State and the court orders issued in that state, the procedure of obtaining the evidence was a ‘black box’ for him, he fundamentally misunderstands the meaning and the – normal – consequences of the ‘distribution of the burden of proof’ that exists in this regard. If there are no indications that the foreign state to which the request for legal assistance was made could have violated the principles of the rule of law and human rights protection when obtaining the evidence, it must be assumed that this is not the case. If no special circumstances are apparent which exceptionally lead to a prohibition against the use of evidence, then the fundamental and, as shown above, constitutionally required principle that all evidence introduced in the main hearing may be used applies. In this regard, it is irrelevant whether the accused or the competent (German) court was able to make a thorough assessment of the collection of evidence abroad.

34

(2) The factual findings submitted by the complainant also do not support his further claim that, based on the facts as reported by the USA, the procedure for collecting evidence abroad occurred in violation of the minimum standards for the rule of law safeguarded by Art. 79(3) in conjunction with Art. 20(3) of the Basic law and the indispensable level of fundamental rights protection both in the USA (see a) below) and in the unknown Member State of the EU (see b) below).

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(a) (aa) Regarding the procedure in the USA, the complainant first claims that it is already questionable whether the FBI, as a law enforcement agency, was even allowed to take action with regard to crimes committed exclusively abroad under US law. For a number of reasons, the complainant’s claims do not amount to a possible constitutional violation. Firstly, this merely raises the question of a violation of US law, without sufficiently substantiating it. Secondly, the constitutional complaint does not demonstrate in a comprehensible manner how such an alleged violation of US law by the FBI would justify an assumption that the procedure in the USA violated the minimum standards for the rule of law in accordance with Art. 79(3) in conjunction with Art. 20(3) of the Basic Law. Thirdly, the constitutional complaint does not demonstrate in a comprehensible manner that, from the point of view of the USA, the procedure actually concerned crimes committed exclusively abroad (see further on this <b>, below).

36

(bb) Furthermore, the constitutional complaint seeks to establish a violation of the minimum standards for the rule of law enshrined in Art. 79(3) in conjunction with Art. 20(3) of the Basic Law on the basis that the only purpose for conducting the surveillance of ANOM-devices in a state other than the USA could have been to evade the limitations imposed by the Fourth Amendment of the US Constitution (protection of privacy) and by the Wiretap Act, which the complainant contends would have applied if communications infrastructure in the USA had been used. According to the constitutional complaint, the FBI thus evaded the limitations placed on it by law. This argument is also not coherent. If the provisions of US law cited in the constitutional complaint only apply – as the complainant claims – to the access to communications infrastructure in the USA, then telecommunications surveillance which takes place outside of this infrastructure must be outside their scope of application from the outset. The initial premise of the constitutional complaint therefore does not demonstrate an unlawful circumvention of the law, but merely that the FBI did not act within the scope of application of the cited provisions. Therefore, it does not have to be decided whether a circumvention of the law that is unlawful under US law automatically means that the collection of evidence also does not meet minimum standards for the rule of law. This at least appears doubtful.

37

(b) With regard to the collection of evidence in the unknown EU member state, the constitutional complaint argues that the surveillance did not occur in pursuit of a legitimate aim and that this automatically leads to a violation of the principle of proportionality, which forms part of the minimum standards for the rule of law. Because this state did not conduct their own analysis of the data, so the complainant argues, it merely provided ‘support’ to the USA and thus did not pursue any aims of its own. Further, the passing on of this data to the USA occurred in violation of the existing law on mutual assistance, as the exchange of data between the USA and EU member states by way of mutual legal assistance is limited to the passing on of data for the purposes of prosecution and prevention of criminal offences, in accordance with the ‘Agreement between the United States of America and the European Union on the protection of personal information relating to the prevention, investigation, detection, and prosecution of criminal offences’ (Official Journal EU no. L 336 of 10 December 2016, p. 3 ff.). Here, the complainant contends that there is no indication that the USA used or intended to use the collected ANOM-data for this purpose. Because of the geo-fence that had been put in place, data which concerned the USA was not even transmitted.

38

This argument is also not coherent. The constitutional complaint already fails to sufficiently substantiate that criminal prosecution of individuals affected by the surveillance in the USA was not possible under US law because of a lack of a link to the USA. First and foremost, however, the constitutional complaint does not address the question of whether the data collected which concerned the USA was relevant in proceedings in the USA against individuals who were involved in the development and marketing of ANOM-data in the belief that it was a functioning encrypted messaging service. The complainant himself shows that such criminal proceedings did take place in the USA. Consequently, it does not have to be decided here whether the violation of the rules of mutual legal assistance between the USA and the unknown EU member state assumed by the constitutional complaint – which appears doubtful – would have been capable of indicating a failure to meet the minimum standards for the rule of law.

39

(3) Insofar as the complainant claims that, due to the lack of information available about the surveillance of ANOM-devices, he did not have sufficient opportunity to influence the course and outcome of the proceedings, his argument also does not establish a prohibition against the use of evidence for constitutional reasons. In fact, the complainant did have sufficient opportunity to influence the course and outcome of the criminal proceedings against him because he was able, at any given time, to make a statement regarding the communications surveillance affecting him and, in particular, to call into question the authenticity of those communications - which, tellingly, he explicitly does not. But even if one were to take the view of the complainant that a lack of information about the proceedings for collecting evidence abroad could lead to a prohibition against the use of evidence for constitutional reasons, there was no such lack of information in the present case. As shown above, even based on the claims of the complainant, there is only a lack of information regarding the identity of the EU member state which hosted the iBot server as well as the orders of the courts in that state on which the retention and transmission of the data to the USA was based. However, this only concerns the question whether the retention and transmission of data was permissible in accordance with the national law of that state. According to the standards laid out above, this is not relevant for the question whether a prohibition against the use of evidence exists in Germany.

40

(4) The analysis of the Federal Court of Justice that the violation it found with regard to Art. 31 of the Directive regarding the European Investigation Order in criminal matters did not lead to a prohibition against the use of evidence under the so-called ‘weighing of interests’ in the present case is unobjectionable under constitutional law. It is particularly relevant in this regard that in accordance with the analysis of the ordinary law by the Federal Court of Justice, which is unobjectionable under constitutional law, the requirements for telecommunications surveillance in Germany under § 100a of the Code of Criminal Procedure were clearly fulfilled. Especially in light of this, the violation of § 91g(6) of the International Mutual Assistance Act (Gesetz über die internationale Rechtshilfe in Strafsachen - IRG) alleged in the constitutional complaint – which the Chamber merely presumes – does not lead to a prohibition against the use of evidence for constitutional reasons. That administrative bodies or courts could have intentionally disregarded their legal obligations in this context is not apparent on the basis of the claims made in the constitutional complaint.

41

b) A violation of the right to one’s lawful judge, which the complainant also continues to allege, is not possible on the basis of the claims made by the complainant. Based on those claims, the Federal Court of Justice did not act in a manifestly untenable manner in regard to its duty of referral to the CJEU.

42

aa) Where a German court fails to comply with its duty to refer a matter to the CJEU for a preliminary ruling, the right to one’s lawful judge guaranteed to the person seeking legal protection in the initial proceedings may be violated (cf. BVerfGE 73, 339 <366 et seq.>; 126, 286 <315>; 135, 155 <231 para. 177>). Yet the Federal Constitutional Court only intervenes in relation to interpreting and applying provisions governing the allocation of jurisdiction between courts if the relevant provisions are interpreted and applied in a manner that no longer appears comprehensible and is therefore considered manifestly untenable when critically appraising the Basic Law’s central notions (cf. BVerfGE 29, 198 <207>; 82, 159 <194>; 126, 286 <315>; 135, 155 <231 para. 179>).

43

The duty of referral under Art. 267(3) TFEU is applied in a manifestly untenable manner where – in the view of the relevant court – an issue of European law is decisive in proceedings before a court against whose decisions no judicial remedy is available, yet the court does not even consider a referral despite having doubts how to correctly resolve the decisive issue and thereby develops European Union law on its own authority (fundamental disregard of the duty of referral; cf. BVerfGE 82, 159 <195>; 126, 286 <316>; 128, 157 <187>; 129, 78 <106>; 135, 155 <232 para. 181>; 147, 364 <380 para. 41>).

44

This also applies if case-law of the CJEU exists, but it appears possible that the existing case-law does not exhaustively address the decisive issue, or that further development of the jurisprudence by the CJEU is more than just a remote possibility (incomplete case-law). In such cases, Art. 101(1) second sentence of the Basic Law is violated where the court against whose decisions no judicial remedy is available untenably exceeds the margin of assessment necessarily afforded to it (cf. BVerfGE 82, 159 <195 f.>; 126, 286 <317>; 128, 157 <188>; 129, 78 <106 f.>; 135, 155 <232 f. para. 183>). This applies, in any case, if the ordinary courts arbitrarily assume the existence of an acte clair or an acte éclairé. In this respect, it is incumbent upon the court to sufficiently research the relevant substantive European Union law. Where case-law of the CJEU is applicable to the case at hand, it must be analysed and reflected in the decision rendered by the court (cf. BVerfGE 82, 159 <196>; 128, 157 <189>; 135, 155 <233 para. 184>). On this basis, when applying and interpreting the relevant substantive European Union law (cf. BVerfGE 135, 155 <233 para. 184>), the ordinary court must reach the reasonable conclusion that the applicable legal standards are either clear from the outset (acte clair) or clarified beyond reasonable doubts in the case-law of the CJEU (acte éclairé; cf. BVerfGE 129, 78 <107>; 135, 155 <233 para. 184>). In the case of incomplete case-law, Art. 267(3) TFEU is applied in an untenable manner, particularly when the ordinary court concludes that the legal situation is clear from the outset or clarified beyond reasonable doubts without providing objective reasons supporting its conclusion (cf. BVerfGE 82, 159 <196>; 135, 155 <233 para. 185>; 147, 364 <381 f. para. 43>).

45

bb) In accordance with these standards, the Federal Court of Justice was not required to refer to the CJEU the question of a possible prohibition against the use of evidence (under European Union law) in case of a violation of the duty to provide information under Art. 31 of the Directive regarding the European Investigation Order in criminal matters or a violation of Art. 14(7) of the Directive regarding the European Investigation Order in criminal matters.

46

With regard to prohibitions to use evidence in case of a violation of the duty to provide information under Art. 31 of the Directive regarding the European Investigation Order in criminal matters, the CJEU has already expressed its point of view in its decision of 30 April 2024 (cf. CJEU, M.N. <EncroChat>, 30.04.2024, C-670/22, EU:C:2023:817, paras. 107 ff., 124 f.). The Federal Court of Justice expressly based its decision, which is challenged here, on this case-law of the CJEU (cf. Federal Court of Justice, Judgment of 9 January 2025 - 1 StR 54/24 -, juris, para. 23). The constitutional complaint shows no deviation from the case-law of the CJEU on a decisive issue and nothing more than a remote possibility that the CJEU will further develop its jurisprudence. In any case, the constitutional complaint does not indicate that the Federal Court of Justice has exceeded its margin of assessment.

47

A violation of the duty of referral to the CJEU with regard to a possible prohibition against the use of evidence under European Union law due to a violation of Art. 14(7) second sentence of the Directive regarding the European Investigation Order in criminal matters is already precluded by the fact that the Federal Court of Justice considered this question not to be decisive in the present case. Even if the Federal Court of Justice had applied this provision, according to its findings, no violation would have been found. This is because in the present case, the Federal Court of Justice affirmed that the proceedings had been fair overall and that the rights of the defence had been sufficiently safeguarded.

48

2. Finally, the Chamber points out that, independent of the complainant’s submissions in the present case, it does not currently have any information about the collecting of ANOM-data that could provide indications for the assumption that the data obtained is in principle inadmissible as evidence under constitutional law.

49

3. In accordance with § 93d(1) third sentence of the Federal Constitutional Court Act, no further reasons are given.

50

As the constitutional complaint is not admitted for decision, the application for a preliminary injunction becomes moot (§ 40(3) of the Rules of Procedure of the Federal Constitutional Court).

51

This decision cannot be appealed.