10
WEBER AND SARAVIA v. GERMANY DECISION
second sentence, of the Basic Law. The provision did not contain sufficient
safeguards to guarantee that the duty of the Federal Intelligence Service to
report to the Federal Government, which included the transmission of
personal data, would be performed solely for the purposes which had
justified the collection of the data (Zweckbindung). Furthermore, the
provision failed to comply with the identification requirements
(Kennzeichnungspflicht) flowing from Article 10. Ensuring that personal
data were not used for illegal purposes was possible only if it remained
discernible that the data concerned had been obtained by means of an
interference with the secrecy of telecommunications. Likewise, there were
no safeguards ensuring that the Federal Government did not keep or use the
personal data transmitted to them for purposes other than those listed in
section 3(1). The court ruled that, pending the entry into force of legislation
in compliance with the Constitution, section 3(3), second sentence, was to
be applied only if the personal data contained in the report to the Federal
Government were marked and remained bound up with the purposes which
had justified their collection.
(e) Section 3(5) of the amended G 10 Act: Transmission of data to other
authorities
36. Section 3(5), first sentence, provided that the data obtained in the
circumstances described in subsection 1 of section 3 had to be transmitted to
the Offices for the Protection of the Constitution of the Federation and of
the Länder, to the Military Counter-Intelligence Service, to the Customs
Investigation Office (Zollkriminalamt), to the public prosecutors’ offices
and to certain police services for the purposes laid down in subsection 3 of
section 3 in so far as this was necessary for the recipient authorities to carry
out their duties.
37. Pursuant to section 3(5), second sentence, the decision to transmit
data was to be taken by a staff member who was qualified to hold judicial
office.
38. The Federal Constitutional Court found that the federal legislature’s
exclusive legislative power under Article 73, point 1, of the Basic Law (see
paragraph 15 above) to regulate matters concerning foreign affairs also
covered the transmission to other authorities of information obtained by the
Federal Intelligence Service in the performance of its tasks as provided for
in section 3(5) of the amended G 10 Act. The federal legislature merely had
to provide guarantees that the further use of the data did not disregard the
primary function of the monitoring measures.
39. The Federal Constitutional Court further found that section 3(5) was
not fully compatible with Articles 10 and 5 § 1, second sentence, of the
Basic Law. It held that Article 10 did not prohibit the transmission to the
authorities listed in section 3(5), first sentence, of information which was
relevant for the prevention and investigation of criminal offences. This