to the Judgment of the First Senate of 19 May 2020
- 1 BvR 2835/17 (Federal Intelligence Service – foreign surveillance)
1. Under Art. 1(3) of the Basic Law, German state authority is bound by
fundamental rights; this is not restricted to German territory.
The protection afforded by individual fundamental rights within Germany can differ from that afforded abroad.
In any event, Art. 10(1) and Art. 5(1) second sentence of the Basic Law,
which, in their dimension as rights against state interference, afford
protection against telecommunications surveillance, also protect foreigners in other countries.
2. The current legal framework on the surveillance of foreign telecommunications, on the sharing of intelligence thus obtained with other bodies, and on the cooperation with foreign intelligence services violates
the requirement to expressly specify affected fundamental rights,
which is enshrined in Art. 19(1) second sentence of the Basic Law. The
legislator deliberately considered fundamental rights not to be affected, yet they are applicable in this context, too. The current legal framework also does not satisfy key substantive requirements arising from
3. Art. 10(1) of the Basic Law protects the confidentiality of individual
communications as such. Persons asserting a violation of their own
fundamental rights are not excluded from the protection afforded by
the fundamental rights of the Basic Law merely because they act on
behalf of foreign legal entities.
4. Legislation on foreign intelligence is covered by the legislative competence for foreign affairs within the meaning of Art. 73(1) no. 1 of the
Basic Law. On the basis of this competence, the Federation can confer
upon the Federal Intelligence Service not only the task of providing intelligence to the Federal Government in foreign and security policy,
but also the separate task of the early detection of dangers with an international dimension that originate from abroad, as long as this does
not give rise to operational powers. These dangers must be of such
nature and gravity that they can affect the position of the Federal Republic of Germany in the international community and they must be
significant to foreign and security policy precisely for this reason.