sential regulatory element that requires an unambiguous, specific definition which
has an external effect. […]
b) Neither in itself nor in conjunction with the order to open a data file under § 12 ATDG does § 1 sec. 2 ATDG satisfy the special requirements that must be met in the legal specification of the participation of further law enforcement agencies in the
counter-terrorism database.
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aa) By itself, § 1 sec. 2 ATDG does not provide a sufficiently unambiguous legal definition from which the participating authorities can be determined directly. It is true
that the requirements for specificity do not per se exclude the legislature’s option to
define the agencies authorised to use a database only generally and in the abstract,
depending on the database’s nature and purpose. If the set of these agencies can be
determined with sufficient specificity directly from the law, it may do no harm if the individual agencies are not mentioned expressly (cf. BVerfGE 130, 151 <199, 203>).
But that is not the case here. § 1 sec. 2 ATDG describes the participating agencies
only in terms of broad criteria that require discretionary judgment. […]
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bb) Nor does a sufficiently clear specification of the participating agencies proceed
from § 1 sec. 2 ATDG in conjunction with the order to open a data file under § 12 no.
2 ATDG. There are no general objections to delegating the final determination of
these authorities to the executive branch. However, since defining the agencies that
participate in the counter-terrorism database is of specific relevance to fundamental
rights, it is not sufficient to draft an order to open a data file as a mere administrative
rule that has no legally binding effect on the persons whose data are affected or on
the courts, and that also is not issued and promulgated as a law or regulation. If the
legislature chooses to place the decision about the participating agencies in the
hands of the executive, Art. 80 sec. 1 GG requires it to do so in the form of a regulation.
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2. Not in every respect compatible with the constitutional requirements are the provisions which determine the group of persons who the database may cover. Some of
these provisions violate the principle of specificity and the prohibition of disproportionate measures. Others are in need of an interpretation to narrow them in conformity
with the Constitution.
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a) However, there are no objections to § 2 sentence 1 no. 1a ATDG. This provision
requires data about persons who may belong to or support a terrorist organisation to
be collected, and therefore covers those who are the focus of an effective defence
against terrorism. Since this provision is linked to provisions of criminal law that criminalise certain activities long before legally protected interests are actually violated,
and since it only requires “factual indications” – if applicable, even for support actions
– this clause indeed gives the authorities substantial leeway for subjective assessments, and it is subject to many other uncertainties. However, this structure is acceptable in the context of the counter-terrorism database, which (apart from serious emergencies) only serves to initiate the receipt of information, and which, in that context, is
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