will, in many cases, be too late to prevent the criminal offence. However, in view of
the necessary protection of high-ranking legal interests and safety interests, such delay is not acceptable, especially when taking the principle of proportionality into account.
As the Federal Intelligence Service is, when transferring personal data, bound to the
standard that a temporary injunction order must exist, there are no figures that show
how many transfers could have taken place if factual grounds to suspect a criminal offence were already sufficient to justify transfer of obtained data. However, there are
greater possibilities of transfer if the thresholds are lower. As it is a typical feature of
intelligence activities that information is only gathered on partial aspects of incidents,
the phrase "tatsächliche Anhaltspunkte" (factual grounds) set forth in § 20 of the Bundesverfassungsschutzgesetz (BVerfSchG, Federal Constitution Protection Act), in
§ 9.3 of the Federal Intelligence Service Act (BNDG) and in § 11.2 of the Gesetz über
den Militärischen Abschirmdienst (Military Counter-Intelligence Service Act) has been
deliberately chosen to designate the threshold for transfer. According to the Federal
Minister of the Interior, the decisive question is always how many partial aspects of an
incident must be covered before surveillance in the lead-up to a criminal offence is
completed and investigation can be taken up by the police or the public prosecutor.
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On the basis of tatsächliche Anhaltspunkte (factual grounds), the Federal Intelligence Service would transfer its intelligence earlier than under the prerequisite relying on the standard of a suspicion substantiated by specific facts. For instance, the
supply of "dual-use" goods violates the Foreign Trade and Payments Act and the Act
on the Control of Weapons of War only if the requirements for permission stipulated in
these Acts have been disregarded. In such cases, only the Office of Criminal Investigation in Customs Matters or the Federal Export Authority can ascertain if the law has
been violated by comparing the permits that have been issued. Only such a comparison may provide "bestimmte Tatsachen" (specific facts) to justify the suspicion that
the supplier plans, is committing or has committed one of the criminal offences listed
in § 3.3 of the G 10 Act.
115
The Federal Minister of the Interior also argued that taking § 100a of the Code of
Criminal Procedure as a standard is problematic because this approach confers examination criteria to the Federal Intelligence Office that are reserved to the judiciary
or at least to the public prosecutors' function. If the examination activities of the Federal Intelligence Office took such a shape, this would run counter to the very endeavour to deny the Federal Intelligence Office the authority to encroach upon the fundamental right to privacy that is reserved for the police, and more importantly, the
authority that is reserved for the public prosecutors or the judiciary. For the wording of
§ 3.3(1) of the G 10 Act, the parliament took § 2.1 of the G 10 Act, § 10.1 of the
BVerfSchG, and § 20.1 no. 7 of the Stasi-Unterlagengesetz (Stasi [GDR secret service] Records Act) as models.
116
The Federal Minister of the Interior concluded in his submission to the Court that the
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