German Original translated by the European Parliament Translation Unit on behalf of
Members of the European Parliament Marketa Gregorova, Mikulas Peksa and Martin
Sonneborn.
Ministerial draft of the Federal Chancellery
Draft law amending the Federal Intelligence Service Act to implement the rulings
of the Federal Constitutional Court and the Federal Administrative Court
A. Problem and objective
The Federal Constitutional Court, in its decision of 19 May 2020 – 1 BvR 2835/17 (Foreignto-Foreign Telecommunications Surveillance by the Federal Intelligence Service), has
declared §§ 6, 7 and 13 to 15 of the Federal Intelligence Service Act (BNDG) to be
incompatible with Article 10(1) of the Basic Law (GG) and with Article 5(1) of the GG, and
has set the legislator a deadline of 31 December 2021 at the latest for constitutionally
compliant revision. The same applies to § 19(1) and § 24(1), first sentence, (2), first sentence
and (3) of the BNDG insofar as they provide justification for the processing of personal data.
The statutory remit of the Federal Intelligence Service is to obtain information on foreign
countries which is of foreign or security policy significance to the Federal Republic of
Germany. In so doing, the Federal Intelligence Service makes a vital contribution to the
security architecture of the Federal Republic of Germany.
Strategic telecommunications surveillance represents a substantial element of this work. It
enables the Federal Intelligence Service to monitor current events in real time and inform
political users and international partners about them.
Technical surveillance by intelligence services is gaining increasing significance in a
globalised and technically interlinked world. If comprehensive surveillance of sources of
threats is to be achieved, it is essential to the work of the Federal Intelligence Service to keep
up with technical developments in an increasingly interlinked world. The forms of
communication used are volatile and constantly changing.
When the Federal Intelligence Service Act was last amended in 2016, an attempt was made to
respond to this development by creating more legally certain and specific norms.
While the Federal Intelligence Service previously based the performance of strategic foreign
telecommunications surveillance solely on the statutory task allocation norm laid down in
§1(2) BNDG, the most recent amendment clarified the legal position and special legal
principles were established for strategic foreign telecommunications surveillance from within
the country as well as for cooperation in this regard with foreign public agencies of other
states. A special legal basis was created for the common holding of data with foreign public
agencies.
By means of its judgment of 19 May 2020 (1 BvR 2835/17), the Federal Constitutional Court
ruled for the first time that foreign nationals abroad can also invoke the protection afforded
by Article 10(1) of the Basic Law and Article 5(1) of the Basic Law.