with foreign intelligence services and generally recognised by all intelligence services; according to this rule, based on informal arrangements, intelligence obtained
from foreign intelligence services may not be shared with third parties without the
consent of the intelligence service in question (cf. BVerfGE 143, 101 <150 para. 162;
151 para. 164>). The Federal Government can also invoke this rule, insofar as it has
given assurances on the basis of which intelligence was shared by a foreign intelligence service and the question of whether this intelligence can be shared with “third
parties” arises; for example, the Federal Government refused to provide certain information to a committee of inquiry of the Bundestag, i.e. a third party, on the grounds
that it had given such assurances to the United States of America (cf. BVerfGE 143,
101 <152 para. 167; 155 et seq. para. 176 et seq.>).
The bodies conducting the constitutionally required comprehensive oversight of the
Federal Intelligence Service must be designed as independent oversight bodies that
are strictly committed to secrecy and not integrated into Parliament and its political
communication channels, so as to ensure that the third party rule cannot provide
grounds for refusing to cooperate with them. There is no general definition setting out
whether an oversight body must be considered a “third party” within the meaning of
the third party rule; rather, this is determined on the basis of its organisational design
and agreements between intelligence services (cf. BTDrucks 18/12850, pp. 98 and
99). The third party rule is an administrative practice that is not legally binding, but is
merely based on agreements with other intelligence services; it is thus flexible and
the Federal Government can influence its practical significance ([…]). The Federal
Government and the Federal Intelligence Service do remain bound by the assurances they have given. However, in the future, it must be ensured, through the way
the oversight bodies are designed and through changes in agreements with foreign
services, that the bodies conducting legal oversight are no longer considered “third
parties” (cf. also European Commission for Democracy through Law [Venice Commission], Report on the Democratic Oversight of Signals Intelligence Agencies, CDLAD[2015]011, p. 5 [no. 13]; Council of Europe, Parliamentary Assembly, Resolution
1838 [2011], p. 2 [no. 7]; Council of Europe, Commissioner for Human Rights, Democratic and effective oversight of national security services, 2015, p. 13 [Recommendation no. 16]).
294
On the one hand, it must be guaranteed that, despite the third party rule, constitutionally required oversight also extends to the Federal Intelligence Service’s handling
of information obtained from foreign intelligence services; on the other hand, the Federal Intelligence Service must be able to continue to cooperate with other intelligence
services (see paras. 246 and 247 above), which is especially important for safeguarding the Federal Republic of Germany’s interests in foreign and security policy. The
practice of other intelligence services shows that this is possible; their oversight bodies have full access to all documents necessary to scrutinise the intelligence services
that are subject to their oversight (regarding the rights to information granted to the
Investigatory Powers Tribunal in the United Kingdom cf. ECtHR, Big Brother Watch
295
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