which must remain central to the overall profile of an intelligence service established
on the basis of Art. 73(1) no. 1 GG. However, the Federal Intelligence Service can
also be tasked with the separate responsibility of early detection of impending dangers originating from abroad if these dangers are sufficiently international in scope. It
is decisive that these dangers be of such nature and gravity that they can affect the
position of the Federal Republic of Germany in the international community and that
they be significant to foreign and security policy precisely for this reason. […]
b) [...]
129-131
2. […]
132-133
II.
However, the challenged provisions are formally unconstitutional since they violate
the requirement to expressly specify affected fundamental rights, which is enshrined
in Art. 19(1) second sentence GG ([…]). The Federal Intelligence Service Act refers
to Art. 10(1) GG in relation to interferences resulting from § 3 BNDG (cf.
§ 3(3) BNDG), but not in relation to interferences resulting from the provisions at issue here. Failure to adhere to the requirement to expressly specify affected fundamental rights cannot be justified by the fact that the challenged provisions enshrine
into law a long-standing administrative practice for the first time. In particular, it cannot be claimed that the requirement to expressly specify affected fundamental rights
does not apply if the law provides for fundamental rights restrictions that already exist
in prior legislation or only provides for minor deviations from them (cf. on this BVerfGE 35, 185 <188 and 189>). Administrative practice that lacks a legal basis constitutes neither applicable law nor a valid restriction of fundamental rights; unlike acts of
Parliament that adhere to the requirement to expressly specify affected fundamental
rights, such practice is not based on value decisions made by the parliamentary legislator. Nor can mere administrative practice serve as a warning that is equivalent to
the one provided by [a law adhering to] the requirement to specify affected fundamental rights. This holds true all the more for the covert practice of an intelligence
service.
134
The legislator violates the requirement to specify fundamental rights, precisely
where it considers these fundamental rights to be unaffected based on a certain interpretation of their scope of protection – in this case, the assumption that German
state authority is not bound by fundamental rights when acting abroad in relation to
foreigners. In such a case the legislator is not aware that it authorises interferences
with fundamental rights and is not willing to account for their consequences, yet this
is the very purpose of the requirement to specify affected fundamental rights (cf.
BVerfGE 85, 386 <404>; 113, 348 <366>; 129, 208 <236 and 237>). Moreover, the
legislator thus evades a public debate, which would serve to clarify the necessity and
scale of interferences with fundamental rights (cf. BVerfGE 85, 386 <403 and 404>;
129, 208 <236 and 237>).
135
37/87