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News: Fundamental rights – Constitutional complaint against virus protection warning of the Federal Office for Information Security (BSI) not taken for decision

written and translated by Ali Tahir Sen

KasperskyTM ‘s constitutional complaint based on the BSI‘s war­ning that it could “conduct offensive operations itself, or be forced to attack target systems against its will, or be spied on as a victim of a cyber operation without its knowledge, or be misused as a tool for attacks against its own customers” was not accepted for decision by the Federal Constitutional Court for lack of compliance with the principle of subsidiarity of the constitutional complaint (Art. 94 II 1 GG, § 90 II BVerfGG).


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News: BVerfG - Verfassungsbeschwerde gegen Kaspersky Warnung nicht zu Entscheidung genommen


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The manually created German subtitle was translated to English by YouTube.

On March 15, 2022, the Federal Office for Information Security (BSI) published a warning against the anti-virus software of the software manufacturer KasperskyTM in accordance with § 7 BSIG. In this, it first describes the objectives of antivirus software and that doubts about its reliability entail particular risks due to the “extensive system authorization” and a “permanent, encrypted and non-verifiable connection to the manufacturer’s servers”.

As part of this warning, the BSI recommended as a “recommendation for action” that the anti-virus software of the KasperskyTM company should be replaced by alternative products. For this reason, Kaspersky Labs GmbH, represented by its managing director, filed an appeal against

First, the Federal Constitutional Court (order of June 2, 2022 – 1 BvR 1071/22 No. 2) states, in accordance with established case law, that constitutional complaints against decisions on interim relief require exhaustion of the legal remedy on the merits, unless it is asserted that the specialized court caused a violation of the law precisely by the way in which it handled the application. In this regard, the Federal Constitutional Court states:

This may be the case if the constitutional requirements for the granting of interim relief arising from Article 19 IV 1 GG or Article 2 I GG in conjunction with Article 20 III GG have been misunderstood (see BVerfG, Order of the 3rd Chamber of the First Senate of September 2014 – 1 BvR 23/14 – No. 23) or if the right to a hearing under Article 103 I GG has been violated (see BVerfG, Order of the 3rd Chamber of the First Senate of September 2014 – 1 BvR 23/14 – No. 23). Chamber of the First Senate of September 8, 2014 – 1 BvR 23/14 -, margin no. 23).

BVerfG, 02.06.2022 – 1 BvR 1071/22 No. 2

If the conduct of the main proceedings is unreasonable, the complainant may refer to the main proceedings for the complaint of violations of fundamental rights. The conduct is unreasonable,  

if the appeal on the main proceedings before the specialized courts appears to be futile from the outset or if the factual situation or the situation under non-constitutional law has been sufficiently clarified for constitutional assessment and the conditions exist under which the requirement of exhaustion of legal remedies may be waived pursuant to § 90 II 2 BVerfGG […]. Generally, as a result of the preliminary examination of the points of appeal by the non-constitutional courts, the Federal Constitutional Court should have at its disposal factual material that has already been examined in detail and the assessment of the factual and legal situation by the non-constitutional courts that are closer to the matter […]. However, a later decision must also not threaten the appellants with irreparable damage that can no longer be corrected (see BVerfG, Order of the 2nd Chamber of the First Senate of September 19, 2017 – 1 BvR 1719/17 -, No. 8).

BVerfG, 02.06.2022 – 1 BvR 1071/22 No. 3

However, the BVerfG denies this in the specific case. The violation of Articles 12 I, 14 I, 3 I GG complained of by the complainant does not refer to the summary proceedings before the specialized courts and the violation of procedural rights to be observed there is not asserted. In the view of the BVerfG, the specialized court proceedings are also not futile, since the VG and OVG “merely” reached the conclusion in the course of summary review that the warning issued by the BSI is lawful and the main issue has not yet been decided. For this reason, in the opinion of the BVerfG, exhaustion is not unreasonable.

The BVerfG also denies an exceptionally admissible constitutional complaint based solely on specific constitutional questions. In this regard, it states:

Rather, it is also a matter here of the actual circumstances of the guarantee of security in the information technology of the virus protection software distributed by the complainant, which require clarification and preparation by the specialist courts. For this reason, the constitutional complaint is not admissible on grounds of general importance pursuant to § 90 II 2 BVerfGG even before the possibility of legal protection by the specialist courts has been exhausted.

BVerfG, 02.06.2022 – 1 BvR 1071/22 No. 7

In the opinion of the BVerfG, the unreasonableness of contesting the main action due to imminent, serious and unavoidable disadvantages within the meaning of Section 90 II BVerfGG was not sufficiently demonstrated. Thus, a reference to the expected duration of proceedings on the merits is not sufficient, according to the BVerfG:

rather […] to demonstrate that a referral to the main action would threaten inevitable and irreparable damage (see BVerfG, Order of the 2nd Chamber of the First Senate of September 19, 2017 – 1 BvR 1719/ 17 -, No. 8). In this case, the figures provided on any sales losses not only deviate significantly from the information provided in the proceedings before the specialist courts in relation to the same point in time, without the constitutional complaint plausibly clarifying this contradiction. More recent figures are also not submitted. In addition, it is stated that sales had already decreased before the warning due to the outbreak of the war in Ukraine, but that this could be compensated for with active communication and marketing measures. However, the effect of communication and marketing after the warning in question is not explained.

BVerfG, 02.06.2022 – 1 BvR 1071/22 No. 8

The BVerfG refrains from giving further reasons (§ 93d I 3 BVerfGG).

written and translated by Ali Tahir Sen

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