Regarding the applicable formal requirements, ordinary law requires the Federal
Government under § 18(2) second sentence PUAG to notify the committee of inquiry
in writing of its reasons; thus, the written notification of rejection is of central importance. However, the Federal Government is not barred from presenting to the committee of inquiry, by way of supplementary measures, further elaborations on the reasons for its refusal. Depending on the relevant circumstances, the Federal
Government may even be obliged to take such measures and to explain to the committee of inquiry about the nature of the withheld information, the necessity of nondisclosure, and its own assessment regarding the required level of confidentiality. To
this end, the Federal Government must make itself available to the committee of inquiry for the purposes of discussing its position (cf. BVerfGE 67, 100 <138>). If the
committee of inquiry nevertheless has reason to believe that the withheld information
is pertinent to its investigation mandate, and thus sustains its request to receive the
relevant files, the Federal Government is hence under an obligation to assess the
reasoning put forward by the committee of inquiry; where such reasoning fails to
change the position taken by the Government, the latter must examine possible
courses of action to convince the committee of inquiry that its reasoning was not wellfounded (cf. BVerfGE 67, 100 <138>). The specific contextual setting of the written
notification of rejection must generally be taken account in the constitutional review of
the case; consequently, it is necessary to consider, in an overall assessment, all position statements that accompany the relevant notification.
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II.
According to these standards, the refusal of respondents no. 1 and 2 to hand over
the so-called NSA Selector Lists does not violate the Bundestag’s right to take evidence under Art. 44 GG.
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While taking into account the significance of the parliamentary right to take evidence
(1), priority must be accorded to the interest of respondent no. 1 in ensuring that state
functions be exercised in a duty-oriented manner and by the appropriate organ (2),
given that: the NSA Selector Lists requested under the Committee’s decision to take
evidence are not at the free disposal of respondent no. 1 due to agreements under international law; the assessment, that handing over the lists without consent could significantly interfere with the functioning of German intelligence services and their ability to cooperate, is reasonable; the respondent – in cooperation with the Committee of
Inquiry – has responded to the Committee’s request through other procedural means
in as precise a manner as possible without actually disclosing secrets (3). Moreover,
the respondents have satisfied their constitutional duty to substantiate their reasoning
(4).
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1. In principle, the committee of inquiry’s right to take evidence extends to the NSA
Selector Lists.
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a) The committee of inquiry has a particular interest in receiving information relating
to the handing over of the NSA Selector Lists in order to ensure that the intelligence
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