lar, they do not exceed the limits of the federal powers.
1. Insofar as the Counter-Terrorism Database Act governs the exchange of information between the Federal Criminal Police Office, the Land Criminal Police Offices, the
Federal Office for the Protection of the Constitution, the Land authorities for the protection of the Constitution, and other law enforcement agencies, the Federal Government can base its legislative powers on the competences under Art. 73 sec. 1 nos.
10a to 10c GG, which concern the cooperation among the authorities. […]
97
The competence for regulating the cooperation among the various law enforcement
agencies is not limited to criminal prosecution. […]
98
The fact that the Counter-Terrorism Database Act governs the cooperation among
police and constitutional protection agencies not only in a substantive way, but also
across the agencies, does not mean that one cannot rely on Art. 73 sec. 1 no. 10 GG.
[…]
99
2. Insofar as § 1 sec. 1 ATDG includes the Federal Intelligence Service, the Military
Counter-Intelligence Service, the Customs Criminological Office and the Federal Police as additional authorities, the power to do so is founded on Art. 73 sec. 1 no. 1 and
no. 5 GG.
100
The competence to include the Federal Intelligence Service derives from the Federal Government’s authority to regulate foreign affairs under Art. 73 sec. 1 no. 1 GG.
However, the powers thus conferred on the Federal Government need to be seen in
the context of the distribution of other legislative competences. They do not entitle the
legislature to confer on the Federal Intelligence Service the power to prevent, hinder
or prosecute offences per se, merely because the cases have a foreign connection
(cf. BVerfGE 100, 313 <368 et seq.>). Provisions can only be based on the legislative
powers under Art. 73 sec. 1 no. 1 GG if they are part of a legal and practical context
that concerns intelligence activities abroad, and that provides political intelligence to
the Federal Government (cf. BVerfGE 100, 313 <370 and 371>). The participation of
the Federal Intelligence Service in the counter-terrorism database is compatible with
these requirements. […]
101
The Federal Government can base the participation of the Military CounterIntelligence Service on Art. 73 sec. 1 no. 1 GG (defence) and that of the Federal Police and the Customs Criminological Office on Art. 73 sec. 1 no. 5 GG (protection of
customs and borders). […]
102
By contrast, no provision that would directly allow the other agencies participating in
the counter-terrorism database to download the data entered by these federal agencies could be based on Art. 73 sec. 1 nos. 1 and 5 GG. Nor does the CounterTerrorism Database Act include such a provision. Rather, if properly understood, § 5
sec. 1 and 2 ATDG requires separate data collection rules, at the Land level if applicable, for the use of the database by each of the agencies accessing it (cf. BVerfGE
125, 260 <315>; 130, 151 <193>).
103
20/45