performance of its duties and thus parliamentary oversight over governmental activities is concerned, having knowledge of such contents is not pivotal to an extent that it
could actually claim priority over interests relating to the welfare of the state and over
the government’s functioning.
4. Respondents no. 1 and 2 have sufficiently substantiated their position as required
under constitutional law. They have provided substantiated reasons, orally and in
writing, as to the existence of confidentiality requirements on which the refusal to
hand over the lists was based.
181
a) It is true that simply referring to conflicting obligations under international law
does not, by itself, directly provide a basis for refusing to hand over the lists to the
Committee of Inquiry (cf. para. 112). Within the domestic order, neither international
treaty law nor international customary law is accorded the rank of constitutional law.
In consequence, international law cannot be directly invoked for the purpose of refusing the Committee of Inquiry’s request. It must be taken into account, however, that
the respondents additionally based the refusal to hand over the lists on the consequences for the intelligence services’ functioning and their ability to cooperate, as
well as for the security situation of the Federal Republic of Germany, that would arise
if the relevant obligations under international law were violated. The respondents
view a handing over of the NSA Selector Lists as a threat to the autonomous and
duty-oriented exercise of their constitutional functions.
182
When viewed in isolation, the reasoning provided in the written notification of rejection of 17 June 2015 that a disclosure without the consent of the US Government
would violate the applicable Confidentiality Agreement at first does not prove to be
sufficiently specific; this is owed to the fact that it neither restates nor references the
applicable provisions. Similarly, the written notification fails to specify the contractual
parties’ common understanding of these provisions, and thus their interpretation, in a
comprehensible manner.
183
However, when also taking into consideration the way in which respondent no. 1
and respondent no. 2 provided information prior to the written notification of rejection,
it emerges that the need for obtaining the consent of the United States of America
was explained in detail to the Committee of Inquiry. The Confidentiality Agreement
and the MoA were made available to the Committee of Inquiry; the questions that
arose in relation to the interpretation and application of these instruments were discussed, several times and in detail, in the course of the Committee’s sessions.
184
In their submissions to the Committee of Inquiry, the respondents have also set out
that they had made efforts to obtain the United States of America’s consent, elaborating also on the nature of these efforts. In addition, the respondents have continuously
provided updates to the Committee of Inquiry on the course and outcome of the consultation procedure. Therefore, the respondents have ensured a sufficient level of
transparency as well as the involvement of the Committee of Inquiry in the relevant
procedure.
185
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