to find its place in the international community as a partner that abides by the rule of
law ([…]). This is reflected in the Basic Law’s preamble and in particular in Art. 1(2)
GG and Arts. 24 and 25 GG. Even though the question whether fundamental rights
would be binding outside of German territory was not addressed during the deliberations preceding the adoption of the Basic Law and even though the type of surveillance measures targeting other countries that are possible today were unimaginable
at the time, it cannot be inferred from the Basic Law’s legislative history that fundamental rights protection was always meant to end at the national border. Rather, the
Basic Law’s aim to provide comprehensive fundamental rights protection and to place
the individual at its centre suggests that fundamental rights ought to provide protection whenever the German state acts and might thereby create a need for protection
– irrespective of where and towards whom it does so.
b) Under Art. 1(3) GG, fundamental rights as rights of the individual against state
interference are not only binding in constellations in which the German state acts visà-vis the affected persons as a sovereign power that has the monopoly on the use of
force ([…]). Above all, such a restriction, which would largely rule out the binding effect of fundamental rights in the context of foreign surveillance, cannot be inferred
from the fact that Art. 1(3) GG does not refer to German state authority as such, but
names the different state functions legislature, executive and judiciary. This does not
restrict the instances in which fundamental rights are binding, but rather makes it
clear that fundamental rights provide protection vis-à-vis all state authority known to
the traditional doctrine of the separation of powers – they also provide protection visà-vis the legislature in particular, which was not self-evident at the time ([…]). […]
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State authority is bound comprehensively and universally by the fundamental rights,
irrespective of the specific functions, the types of action or the respective object of
the exercise of state functions ([…]).State authority must be understood broadly, covering not only orders and prohibitions or measures based on sovereign powers. Fundamental rights are binding in relation to any decision that can claim to be made on
behalf of all citizens at the relevant level of decision-making within the state. This includes both sovereign and non-sovereign measures, statements and actions. Thus,
any action of state organs or organisations constitutes an exercise of state authority
that is bound by fundamental rights within the meaning of Art. 1(3) GG because such
actions are performed in the exercise of their mandate to serve the common good
(BVerfGE 128, 226 <244>). The binding effect of fundamental rights and the political
responsibility for decisions are inextricably linked (cf. BVerfG, Order of the First Senate of 6 November 2019 - 1 BvR 16/13 -, para. 42 – Right to be forgotten I).
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c) The binding effect of fundamental rights on the German state, even when it acts
abroad, is not limited to a mere objective legal duty ([…]). Rather, it corresponds with
a legal right afforded anyone recognised as a protected fundamental rights holder by
the fundamental right in question. The Basic Law does not provide for fundamental
rights that are binding vis-à-vis individual fundamental rights holders without also providing the individual with a corresponding subjective right. It is a key part of funda-
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