The Berlin Administrative Court (VG Berlin) has provisionally suspended a telecommunications operator's obligation to establish data retention provisions.
Pursuant to EC Directive 2006/24/EC, Member States are obligated to enact legal provisions mandating the storage of telecommunications traffic data by providers of publicly accessible telecommunications services. This obligation has been transposed into German law via the Telecommunications Act (TKG). Telecommunications companies are required to procure and operate the necessary technology at their own expense. Effective January 1, 2009, any failure or inadequate implementation of this obligation is deemed an administrative offense, subject to a fine.
The applicant, a German subsidiary of a British telecommunications network operator, contended in its urgent application that the obligation to procure and operate surveillance technology at its own expense infringed its fundamental right to occupational freedom and was therefore unconstitutional. It would incur one-time costs of at least ...... Euros to establish the requisite technical infrastructure. Moreover, this would entail ongoing operational expenses of ..... Euros annually. This was considered particularly disproportionate, given that, due to its customer base (primarily large corporations, conglomerates, and federal and state authorities), requests from law enforcement agencies were highly improbable.
In its ruling, the 27th Chamber of the Administrative Court provisionally enjoined the Federal Network Agency from taking action against the applicant for its failure to provide data retention facilities.
The Chamber had previously referred the question of the constitutionality of the cost-bearing obligation under Section 110 TKG to the Federal Constitutional Court for adjudication in a separate 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 deems certain provisions of the Telecommunications Act (TKG) incompatible with the Basic Law. The Chamber, which had already, in preliminary injunction proceedings in november 2007 ((Decision of the 27th Chamber of the VG Berlin of november 8, 2007 – VG 27 A 315. 07)), prohibited the defendant from taking measures against the plaintiff for inadequate implementation of the described obligation, considered the uncompensated imposition on the plaintiff to undertake the inherently sovereign task of telecommunications surveillance in the context of criminal prosecution to be a disproportionate infringement of the plaintiff's fundamental rights to freedom of occupation (Art. 12 para. 1 sentence 1 GG) and to property in its established and operated business (Art. 14 para. 1 sentence 1 GG). The plaintiff, as a provider of telecommunications services, demonstrated no particular factual or responsibility nexus to potential criminal offenses facilitated by telecommunications. Furthermore, surveillance was deemed a task fundamentally extraneous to the plaintiff's corporate purpose. Instead, the plaintiff was constitutionally mandated (Art. 10 para. 1 GG) to ensure the confidentiality and eavesdropping security of its customers' telecommunications.
These considerations from the previous case are also pertinent to the present case within the framework of a balancing of consequences. It was therefore critical that the applicant would not be able to recover its expenditures for the procurement and operation of surveillance technology should the Federal Constitutional Court subsequently declare the cost regulation invalid. This is because there is no state liability for legislative wrongdoing. However, this potential financial detriment to the applicant, as well as the surveillance gap that would arise from suspending the obligation to implement data retention provisions, could be mitigated. The Federal Republic of Germany could commit to reimbursing the applicant's expenses should the Federal Constitutional Court invalidate the cost regulation. The court explicitly noted that the constitutionality of the data retention regulations themselves is not a factor in the decision rendered.
An appeal against this decision may be lodged with the Higher Administrative Court of Berlin-Brandenburg.
As this proceeding only applies to the applicant, other telecommunications providers impacted by data retention must initiate independent legal actions against these regulations to avert adverse legal consequences.
Decision of the 27th Chamber of the Berlin Administrative Court of October 17, 2008 – VG 27 A 232.08 –
Source: Press Release No. 37/2008 of the Berlin Administrative Court dated 21.10.2008
© Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
