quired level of confidentiality as well as on the purpose of use should rest with the
agency that shared the intelligence in the first place.
bb) Irrespective of these bilateral agreements and understandings, cooperation between the intelligence services relies on the “Third Party Rule”. According to this rule,
any information exchanged may not be disclosed to third parties or used for any other
purpose except with the consent of the party sharing the intelligence in the first place.
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(1) Law enforcement agencies and courts assume that the “Third Party Rule” is a
right that can be invoked for the purpose of refusing to provide information when
questioned (Auskunftsverweigerungsrecht) (cf. the Final Report of the Joint Commission of the Federation and the Laender on Right-Wing Terrorism, Abschlussbericht
der Bund-Laender-Kommission Rechtsterrorismus, of 20 April 2013, para 712; cf. furthermore BVerwG, Order of 26 November 2003 – 6 VR 4.03 –, juris). There is no
need to make a definite determination as to whether this principle of intelligence cooperation is also applicable in relation to parliamentary oversight bodies, let alone in
relation to regulatory authorities […]. In the present context, the intention expressed
by the agency sharing intelligence is, in any case, the decisive factor; it is upon this
agency to determine who it considers to be a “third party”.
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In this regard, the “Third Party Rule” does not constitute an absolute prohibition on
disclosing intelligence [received], but rather a prohibition reserving consent (Verbot
mit Zustimmungsvorbehalt). The originating agency essentially reserves the power of
control over the relevant information […]. The consent of the originating agency may
thus authorise disclosure of the relevant intelligence. Corresponding to the protection
of confidentiality, the receiving state – in this case, the Federal Republic of Germany
– is under an obligation to make all reasonable efforts to obtain consent to disclosure
(cf. Federal Court of Canada, Charkaoui (Re), 2009 FC 476, [2010] 3 F.C.R. 102,
para. 21; […]).
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(2) In any case, the “Third Party Rule” is a generally recognised rule of conduct for
international cooperation in the field of security and intelligence services (cf. Federal
Court of Canada, Charkaoui (Re), 2009 FC 476, [2010] 3 F.C.R. 102, Rn. 17 ff.; Ajluni
v. FBI, 947 F. Supp. 599 [N.D.N.Y. 1996] with reference to Ajluni v. FBI, No.
94-CV-325, 1996 WL 776996 [N.D.N.Y. July 13, 1996]). Art. 4 letter d and Art. 5 letter
b of the Agreement between the European Union (EU) and the North Atlantic Treaty
Organization (NATO) on the Security of Information (Official Journal of the EU L no.
80 of 27 March 2003, p. 36 et seq.) expressly states this rule. In § 6(1) PKGrG, the
“Third Party Rule” is also reflected in national law: according to this provision, the
Federal Government and the German intelligence services generally lack the power
of disposal in relation to information which the intelligence services receive from foreign authorities (on the identical wording of the former version of § 2b PKGrG, cf. BTDrucks 14/539, p. 7). In practice, German services furthermore affirm the “Third Party
Rule” when sharing intelligence with foreign services (cf. BTDrucks 17/11296, p. 9).
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Compliance with the “Third Party Rule” is not enforced by way of legal constraints;
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