(3) The reference to the Act re Article 10 of the Basic Law in § 5.2 no. 11 sentence 2
of the North Rhine-Westphalia Constitution Protection Act also does not comply with
the principle of the clarity of provisions and of the determinedness of provisions insofar as the range of the reference is not regulated with an adequate level of determinedness.
215
§ 5.2 no. 11 sentence 2 of the North Rhine-Westphalia Constitution Protection Act
refers to the “preconditions” of the Act re Article 10 of the Basic Law. The provision
hence largely leaves unclear the parts of the Act re Article 10 of the Basic Law to
which the reference is intended to be made. It does not reveal whether only the substantive encroachment threshold regulated in § 3 of the Act re Article 10 of the Basic
Law is to be understood by the preconditions of this Act, or whether further provisions
are also intended to be referred to. For instance, the procedural rules contained in §§
9 et seq. of the Act re Article 10 of the Basic Law could also be included among the
preconditions for an encroachment according to this statute. It would at least be conceivable to further refer to both the substantive encroachment thresholds and also to
all procedural precautions of the Act re Article 10 of the Basic Law, as has been proposed by the Government of the Land North Rhine-Westphalia. Accordingly, the provisions on dealing with collected data contained in § 4 of the Act re Article 10 of the
Basic Law and the provisions of §§ 14 et seq. of the Act re Article 10 of the Basic Law
on parliamentary control would also be covered, although these provisions contain
regulations which are not to be complied with until after an encroachment has taken
place, and hence linguistically can hardly be counted among the preconditions for encroachment.
216
It is not evident that the undetermined version of the Act is due to particular legislative difficulties. The legislature could easily have listed in the referring provision those
provisions of the Act re Article 10 of the Basic Law to which the reference was intended to be made.
217
b) § 5.2 no. 11 sentence 1 alternative 2 of the North Rhine-Westphalia Constitution
Protection Act also does not comply with the principle of proportionality. The latter demands that an encroachment on fundamental rights should serve a legitimate purpose and be suitable, necessary and appropriate as a means to this end (see BVerfGE 109, 279 (335 et seq.); 115, 320 (345); Federal Constitutional Court, Order of 13
June 2007 – 1 BvR 1550/03 et al. –, Neue Juristische Wochenschrift 2007, p. 2464
(2468); established case-law).
218
aa) The data collections provided for in the impugned provision serve the constitution protection authority in the performance of its tasks according to § 3.1 of the North
Rhine-Westphalia Constitution Protection Act, and hence serve to secure, in the runup to concrete dangers, the free democratic fundamental order, the continued existence of the Federation and of the Länder, as well as certain interests of the Federal
Republic directed at international relations. Here, according to the reasoning of the
Act, one of the goals pursued in particular with the revision of the Constitutional Pro-
219
36/60