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Austria / Constitutional Court / G47/2012 ua

Claim according to Art. 144 Constitutional Act because of violation of constitutionally guaranteed rights

Policy area:
Information society
Deciding Body type:
National Court/Tribunal
Deciding Body:
Austria / Constitutional Court
Decision date:

Key facts of the case:

A claim was brought to the Constitutional Court stating that the Telecommunications Act 2003 is unconstitutional and violates the rights enshrined in Art. 7, 8, 11 and 12 CFR. According to the complaint, the Act seriously encroaches on fundamental rights through the ordered storage obligation of the providers of public communication services and the access to this data (information) by security and law enforcement authorities. The applicant claims lack of proportionality of the regulations in view of the range of the interference, the circle and the type of data concerned and the consequent severity of the interference with the right to informational self-determination, as well as that information is not only intended to investigate serious crimes.

Outcome of the case:

In the federal law, with which a telecommunications law is enacted (telecommunications law 2003 - TKG 2003), BGBl I No. 70/2003 in the version BGBl I No. 27/2011 , the following provisions are repealed as unconstitutional:


- §92 Abs3 Z6b;

- in §93 (3) the phrase "including inventory data";

- in §94 Paragraph 1 the phrase "including information about inventory data";

- in §94 (2) the phrase "including information about inventory data";

- in §94 (4) the word sequences "including the transmission of stock data," and "and the more detailed provisions regarding the storage of the logs prepared in accordance with §102c";

- in section 98 (2) the phrase "even if this requires access to stored data stored in accordance with section 102a (3) Z6 litd";

- in §99 Paragraph 5 Z2 the word sequence ", even if this was stored as stock data according to §102a Paragraph 2 Z1, Paragraph 3 Z6 lita and b or §102a Paragraph 4 Z1, 2, 3 and 5 at the latest six months before the request,";

- in §99 Abs5 Z3 the phrase ", even if this requires access to stored data according to §102a Abs3 Z6 litd";

- in §99 Abs5 Z4 the word sequences "also" and "as stock data according to §102a Abs2 Z1 or §102a Abs4 Z1, 2, 3 and 5";

- §102a;

- §102b;

- §102c paragraph 2, 3 and 6;

- in §109 paragraph 3 Z22, 23, 24, 25 and 26.

II. §134 Z2a and §135 Abs2a of the Code of Criminal Procedure 1975 (StPO), BGBl No. 631, as amended by BGBl I No. 33/2011 , are revoked as unconstitutional.

III. The Federal Law on the Organization of Security Administration and the Exercise of the Security Police (Security Police Act - SPG), BGBl No. 566/1991 , repeals the following provisions:

- In §53 Abs3a Z3 in the version BGBl I No. 33/2011 , the phrase "even if it is necessary for the use of stock data according to §99 Abs5 Z4 in conjunction with §102a TKG 2003,";

- in §53 Paragraph 3b in the version of Federal Law Gazette I No. 13/2012 , the phrase ", even if the use of stock data in accordance with §99 Paragraph 5 Z3 in conjunction with §102a TKG 2003 is necessary,".