The question of whether telecommunications network operators are allowed to install Chinese components is not new. This has been discussed for years. Now the Federal Ministry of the Interior is getting serious: The house wants to examine all security-relevant components of the network. This is about the components that are already installed. In a letter, the Ministry of the Interior has asked the network operators to submit a list of components by the beginning of April.

Helene Bubrowski

Political correspondent in Berlin.

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If the examination reveals that certain components impair public order or security in the Federal Republic, further use may be prohibited. In concrete terms, this means that these components must be expanded. It is not about the entire hardware, but about components that are security-relevant because they play a role in network control, such as a router. The classic distinction between core network and peripheral network is technically outdated.

No compensation provided

As a spokesman for the Federal Ministry of the Interior asserted, the examination is not directed against certain providers. However, according to an initial assessment, the house of Federal Interior Minister Nancy Faeser (SPD) already assumes that there will be prohibitions and that they will affect the products of the two Chinese manufacturers Huawei and ZTE. However, prohibition does not mean that the technology must be free of these components the next day.

This is practically impossible and is not so easy from a legal point of view. The decision must be proportionate, i.e. also take into account the economic situation of the companies concerned. The law does not provide for compensation in the event of prohibition. A proportionate solution could be, for example, that a company has to remove certain components within a period of five years. Since the technology has to be constantly renewed, this would in fact mean that critical components may no longer come from Chinese manufacturers in the future.

There is no Lex Huawei

The initiative of the Federal Ministry of the Interior is not quite as far as some media had written on Monday evening. There is no Lex Huawei. There is no need for a new law for this prohibition. The possibility of subsequently removing existing components that are already in use is already provided for in Section 9b of the BSI Act, but has not yet been applied. It is different with the testing of new components before a first use: It takes place, but has so far brought to light no evidence of espionage or other harmful actions. The Chinese manufacturers always point this out.

Therefore, the prohibition is legally quite sensitive. The decision of the Federal Government is subject to judicial review. And it can be assumed that Chinese companies will take advantage of this. For the determination that the use of certain critical components is likely to affect the public order or security of the Federal Republic of Germany – according to the requirements of the law – there is no need for a smoking gun, i.e. no clear evidence, but it is also not sufficient to merely assume that China could tap data.

There is a fine line between them: it takes into account whether the manufacturer of the components is directly or indirectly controlled by the government of a third country. It is also a question of whether the use of the critical component is in line with the security policy objectives of the Federal Republic of Germany, the EU or NATO. In this respect, the pressure from the United States is likely to play a role at least indirectly.