The Berlin Administrative Court (VG Berlin) has provisionally suspended the obligation of a telecommunications operator to set up arrangements for data retention.
Due to the EC Directive 2006/24/EC, the member states are obliged to enact legal regulations according to which the storage of telecommunications traffic data is carried out at providers of publicly accessible telecommunications services. This obligation has been implemented in Germany in the Telecommunications Act (TKG). The telecommunications company must purchase and operate the necessary technology at its own expense. As of 1 January 2009, the lack of or insufficient implementation of this obligation is punishable as an administrative offence with a fine.
The applicant, a German subsidiary of a British telecommunications network operator, had claimed in her emergency application that the obligation to purchase and operate the surveillance technology at its own expense violated its fundamental right to freedom of occupation and was therefore unconstitutional. It would have to incur one-off costs of at least ........ Euros in order to create the necessary technical conditions. In addition, this would result in ongoing operating costs amounting to ..... euros per year. This was particularly unreasonable because, in view of its clientele (primarily large companies, corporations as well as federal and state authorities), hardly any enquiries from law enforcement agencies were to be expected.
In its order, the 27th Chamber of the Administrative Court provisionally prohibited the Federal Network Agency from initiating measures against the applicant for failing to maintain data retention facilities.
The chamber had already submitted the question of the constitutionality of the obligation to bear costs under § 110 TKG to the Federal Constitutional Court for a decision in another case(decision of the 27th chamber of the VG Berlin of 02.07.2008 - VG 27 A 3.07) . The 27th Chamber of the Administrative Court considers individual provisions of the Telecommunications Act (TKG) to be incompatible with the Basic Law. The chamber, which had already prohibited the defendant in preliminary legal protection proceedings in November 2007 (decision of the 27th chamber of the VG Berlin of 8 November 2007 - VG 27 A 315. 07), the chamber had already prohibited the defendant from taking measures against the plaintiff due to the lack of implementation of the obligation described above. The chamber considered the plaintiff's being called upon to take over the genuinely sovereign task of monitoring telecommunications in the context of criminal prosecution without compensation to be a disproportionate encroachment on the plaintiff's fundamental rights to freedom to exercise one's profession (Article 12 (1) sentence 1 of the Basic Law) and to ownership of the established and exercised business (Article 14 (1) sentence 1 of the Basic Law). The plaintiff, as a provider of telecommunications services, was not particularly close in fact and responsibility to the criminal offences potentially prepared by telecommunications. Surveillance was also a task foreign to the plaintiff's corporate purpose. Rather, the plaintiff was constitutionally obliged (Article 10.1 of the Basic Law) to make the telecommunications of its customers confidential and tap-proof.
These considerations in this case were also to be taken into account in the present case within the framework of a weighing of consequences. Accordingly, it was decisive that the applicant could not obtain compensation for its expenses for the acquisition and operation of the surveillance technology if the Federal Constitutional Court later declared the cost regulation to be null and void. This was because there was no state liability for legislative wrongdoing. However, this possible damage to the applicant, as well as the gap in surveillance that would arise if the obligation to set up provisions for data retention were suspended, could be avoided; for the Federal Republic of Germany could undertake to reimburse the applicant's expenses in the event that the Federal Constitutional Court declared the cost regulation to be null and void. Whether the regulations on data retention themselves are constitutional is, according to the court's explicit indication, irrelevant for the decision reached.
An appeal against the decision can be lodged with the Higher Administrative Court of Berlin-Brandenburg.
Since these proceedings only affect the applicant, other telecommunications providers affected by data retention must take action against the regulations in independent proceedings in order to avoid legal disadvantages.
Order of the 27th Chamber of the Berlin Administrative Court of 17 October 2008 - VG 27 A 232.08 -
Source: Press release No. 37/2008 of the Administrative Court of Berlin of 21 October 2008.
© Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
