collection of data through surveillance measures but merely presumes that such collection takes place ([…]), § 7(1) BNDG provides a basis for further processing the
data thus obtained, which amounts to a separate interference (cf. BVerfGE 100, 313
<366 and 367>). Moreover, § 7(2) BNDG sets out restrictions regarding data collection, thus making data collection from abroad appear permissible even in the absence
of any further statutory basis. Ultimately, § 7(1) and (2) BNDG aims to provide legitimation for data collection conducted by the Federal Intelligence Service from abroad.
D.
These interferences with fundamental rights are not justified under constitutional
law. For formal reasons alone, the provisions authorising these interferences do not
satisfy the constitutional requirements for statutory bases authorising interferences
with the affected fundamental rights. While they are based on a legislative competence that is sufficient, they violate the requirement to expressly specify affected fundamental rights (Zitiergebot), which is enshrined in Art. 19(1) second sentence GG.
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I.
There are no major constitutional concerns regarding the legislative competence for
enacting the provisions. The federal legislator was competent to enact the challenged
provisions on the basis of Art. 73(1) no. 1 GG.
1. […]
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a) It is undisputed that the establishment of an agency responsible for comprehensive foreign surveillance is covered by the competence for foreign affairs within the
meaning of Art. 73(1) no. 1 GG (cf. BVerfGE 100, 313 <369>). This also includes the
conferral of powers that are required to carry out such tasks. However, the legislator
can only assign certain tasks to such an agency.
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aa) The meaning of foreign affairs in Art. 73(1) no. 1 GG cannot be determined without considering the overall division of legislative competences. […]
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[…]
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bb) The Federation cannot task the Federal Intelligence Service with foreign surveillance for national security purposes in general. Art. 73(1) no. 1 GG does not entitle
the federal legislator to grant powers that are aimed at preventing, averting or prosecuting criminal acts as such (cf. BVerfGE 100, 313 <370>; 133, 277 <319
para. 101>). It can only confer tasks and powers on the Federal Intelligence Service
that are significant to foreign and security policy and thus have an international dimension.
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Yet this does not limit the federal legislator to tasking the Federal Intelligence Service with providing intelligence to the Federal Government for the purpose of safeguarding its capacity to act in matters of foreign and defence policy (cf. BVerfGE 100,
313 <368 et seq.>). It is true that this is the primary function of foreign surveillance,
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