The German Federal Constitutional Court and the Compatibility Between the Fundamental Rights and the «preventing crimes national legislation» with Community Law Roots

Abstract

The constitutionality of the Telecommunications Law that transposed the directive known as «Data Retention Directive» has been challenged by means of a Verfassungsbeschwerde before the Bundesverfassungsgericht on the basis it could violate the rights to personal data protection and secrecy of communications. Waiting for the final decision the Bundesverfassungsgericht has stayed of its taking into effect. This decision affects to a legal norm whose origin is a Community Law norm that aims to prevent important crimes, in particular terrorist attacks and has been made by a Court characterized in the last years by demanding the legislation to be respectful with the fundamental rights. Both circumstances are taken into account in this work that analyses two recent Bundesverfassungsgericht sentences that declare unconstitutional several Länder antiterrorism laws because of violating the «right to informative auto-determination». Those both sentences, given the resemblance of their object and their temporal proximity, settle parameters that would be applied to the Telecommunications law. Nevertheless it is necessary to take into account the status of the Bundesverfassungsgericht before the Community Law that rejects the Bundesverfassungsgericht judge this law as a mere national law but as a national law with Community Law roots. From the confluence of both sentences it can be deduced that it is expectable a similar decision to the made one regarding the European Arrest Award Law in spite of that it does not seem the best solution for this case. Actually the best decision that the Bundesverfassungsgericht could make would be to refer to the Court of Justice of the European Communities for a preliminary rule.