The Commission does not find that there has been a violation of ARticle 6 ECHR, but that there has been an interference with ARticle 8 ECHR and that such has a legal basis. Interestingly, it applies a ‘European consensus test’ in order to determine whether these policies are truly necessary in a democratic society. It normally applies this test when assessing policies that are claimed to be necessary in terms of the proteciton of ‘health and morals’, such as laws limiting freedoms of homosexuals, transexuals or extreme forms of sex, such as BDSM, or medical-ethical policies concerning abortion, euthanasia and artificial insemination. In such analysis, the Court/Commission assess to what extent the Member State has a unique policy, which other Member States apperantly do not deem necessary in a democratic society. In this case, the Commission applies the same test to the mass surveillance legislation in place in Germany. ‘From a comparative survey of the regulations of a similar kind in the different Convention States it becomes indeed clear that some system of that sort is deemed necessary in a democratic society in the sense of the Convention . The Corrrnission finds that this is indeed the case . Certainly, there can be discussions about the best way to hândle the problem . However, it is left to the State to regulate the functioning of such system within, of course, the limits set . by Art . 8(1) . . The German legislation, which is rather detailed in restricting the iriterferences compared with other systems (2) is, in the view ôf the .Cbmmission, within these limits .’

Consequently, the Commission does not find a violation of Article 8 ECHR either. It makes referrence to both the preamble and Article 17 ECHR to underline the importance of laws that protect the constitutional democracy of states against internal and external enemies. ‘From the point of view of the Convention it should be added that some compromise .between the requirements for defending the constitutional democracy and the individual rights seems to be -nherent in the system of the Convention . The preâmble expressly states that the Fundamental Freedoms are best maintained on the one hand by an effeçtive’political-democracy and on the other by a common understanding and observance of the Human Rights upon which they depend, Art. 17 makes it clear that nothing in the Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth therein. The balance found by the German legislation seems to be in line with the basic thought underlying the Convention one hand by an effeçtive’political-democracy and on the other by a common understanding and observance of the Human Rights upon which they depend, Art. 17 makes it clear that nothing in the Convention may be interpreted as implying for any State, group or person any right to engage in.any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth therein. The balance found by the German legislation seems to be in line with the basic thought underlying the Convention.’

Judge Sperduti, in a dissention opinion, disagrees with the case being declared admissible, because the Commission and the Court should be able to assess whether a concrete action by the executive branch has led to an interference of the applicants and whether, if so, such interence was in accordance with Article 8 paragraph 2: ‘we have left the ground covered by the Commission’s constant practice in the case of individual applications concerning Art . 8 . That practice consisted in exarnining the measures actually taken by the public authorities, vrhich might have violated the Convention because, for instance, they had been taken and applied for a purpose other than that for which they liad been intended.’ Sperduti continues with stressing that the Commission, consequently, had to assess the legal regime in abstracto and that the applicants seemed not so much/not only concerned with their rights actually being interfered with as with the potential for abuse of power by the executive branch, as they could operate in the shadow. Sperduti continues with a careful analysis of this matter and concludes that perhaps, the case should also be assessed under Article 15 ECHR. Judge Busuttil has abstained for make a determination on the victim-status of the applicants, referrign tot the reasoning ofr judge Sperduti. Judge Frowein, in an afterthougt, bluntly stresses that the Commission has engaged in an in abstracto assessment of the legal system.