documentation and effective review by the Federal Data Protection Commissioner
apply here, too (cf. above, C IV 6 d).
IV.
In part, § 14 sec. 1 sentence 1 nos. 1 and 3, sentence 2 BKAG, which governs the
transfer of data to public authorities of third countries – insofar as § 14a BKAG, which
applies to transfers of data to Member States of the European Union, a rule that is not
under scrutiny here, is not applicable –, also does not satisfy the constitutional requirements.
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1. The transfer of personal data to public authorities of third countries is, like the
transfer of data to domestic authorities, a change in purpose. Insofar, in accordance
with general standards, this change in purpose is to be assessed in light of the relevant fundamental rights with which the data collection interfered (see above, D I 2 a).
However, with a view to the due respect owed to foreign legal orders, the transfer of
data to third countries is subject to its own constitutional requirements.
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a) The result of a transfer of data to third countries is that, after the transfer, the
guarantees of the Basic Law can no longer be applied as such and the standards prevailing in the respective receiving country apply instead. This does not, however, generally prevent a transfer to third countries. With its Preamble, Art. 1 sec. 2, Art. 9 sec.
2, Art. 16 sec. 2, Arts. 23 to 26 and Art. 59 sec. 2 GG, the Basic Law links the Federal
Republic of Germany to the international community and has programmatically
aligned the German state authority towards international cooperation (cf. BVerfGE
63, 343 <370>; 111, 307 <318 and 319>; 112, 1 <25, 27>). This includes dealing with
other countries even if their legal order and judicial conception does not fully conform
to the German domestic conception (cf. BVerfGE 31, 58 <75 et seq.>; 63, 343 <366>;
91, 335 <340, 343 et seq.>; 108, 238 <247 and 248). Such an exchange of data also
aims to maintain intergovernmental relations in mutual interests and the Federal Government’s freedom of action in the area of foreign policy (cf. BVerfGE 108, 129
<137>).
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As a starting point, the German state authority, when deciding on the transfer of personal data to third countries, remains bound by the fundamental rights (Art. 1 sec. 3
GG); the foreign state authority is only committed to its own legal obligations.
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Insofar, limits to the transfer of data emerge, on the one hand, in view of the preservation of data protection guarantees. The limits in the Basic Law on the domestic collection and processing of data may not be undermined in their substance by an exchange of data between security authorities. The legislature must thus ensure that
this protection of fundamental rights is not eroded through the transfer of data collected by German authorities to third countries and to international organisations, just as
it must not be eroded by the receipt and use of data from foreign authorities that was
obtained in violation of human rights.
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