ate with foreign intelligence services. Adherence to [mutually assured] confidentiality
provides the basis for this cooperation. (cf. Federal Administrative Court, Bundesverwaltungsgericht – BVerwG, Order of 20 July 2015 – 6 VR 1.15 -, juris, para. 11). This
requires entering into obligations under international law which are governed by the
Federal Government’s power of initiative and leeway to design as part of its foreign
and security policy (cf. BVerfGE 90, 286 <358>).
(a) Pursuant to Art. 32 GG the Federation has the competence to exercise sovereign authority in external relations (cf. BVerfGE 2, 347 <378 and 379>). Foreign policy is one of the functions of the Federal Government (cf. already BVerfGE 1, 372
<394>; cf. also BVerfGE 68, 1 <85 and 86>; 90, 286 <357>).

129

Drawing on traditional doctrines of state theory, the Basic Law grants the Federal
Government a widely construed discretion for the autonomous exercise of its functions in the field of foreign policy. Thus, reasons of ensuring the duty-oriented exercise of state functions (Funktionsgerechtigkeit) alone already limit the role of Parliament in this area (cf. BVerfGE 104, 151 <207>; 131, 152 <195>).

130

It is true that, according to Art. 59(2) first sentence GG, international treaties regulating the political relations of the Federation or relating to subjects of federal legislation
shall require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment of federal law. However, maintaining relations with foreign states, the representation of the state in international organisations,
intergovernmental bodies and systems of mutual collective security (Art. 24(2) GG),
as well as ensuring the overall state responsibility for the external representation of
Germany, generally fall within the sphere of competence of the executive branch of
government, most notably the Federal Government. This principal allocation of acts in
matters of foreign relations to the executive government’s sphere of competence is
based on the consideration that, from an institutional and long-term perspective, it is
usually only the Federal Government that has sufficient personnel, material and organisational resources to respond to changing foreign policy situations in a swift and
appropriate manner; in respect of this, the Federal Government is best-suited to fulfil
the state function of dealing with foreign policy matters in a responsible manner
(BVerfGE 68, 1 <87>; 131, 152 <195>).

131

Extending, by way of interpretation, the Bundestag’s rights of approval and of participation, while disregarding the specific order of the Basic Law governing the distribution and balancing of state powers, would unjustifiably curtail the Federal Government’s capacity to act in matters of a foreign and security policy nature; it would also
result in a distribution of state powers in a manner that was no longer duty-oriented
(cf. BVerfGE 90, 286 <363; 104, 151 <207>; 131, 152 <195 and 196>); to a large extent, such an interpretation would shift political power from the executive government
to the Bundestag in an area which, from a functional perspective, does not qualify as
a matter of the legislature within the meaning of Art. 20(2) second sentence GG (cf.
BVerfGE 68, 1 <87>).

132

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