1. In the formal sense, there are no problematic constitutional considerations as
against the provisions found in § 1.1 and § 3.1 of the G 10 Act. The legislative competence for the matters regulated by these provisions belongs to the Federal Republic
of Germany. The Federal Republic’s competence follows from Article 73 no. 1 of the
Basic Law, which exclusively confers legislation in foreign affairs and defence to the
Federal Republic of Germany.
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a) The concept of foreign affairs addressed Article 73 no. 1 of the Basic Law can only be defined taking the overall division of legislative competencies between the Federal Republic and the Länder into consideration. On the one hand, the concept of foreign affairs must not be interpreted in a way that undermines the division of authority
between the Federal Republic and the Länder. On the other hand, the concept of foreign affairs must be integrated into the exclusive attribution of various competencies
to the Federal Republic. Both perspectives exclude a comprehensive understanding
of the concept of foreign affairs that encompasses all matters that touch upon relations with foreign countries. Otherwise, neither the dividing line between the distinct
authority of the Federal Republic and the Länder could be maintained, nor would the
Federal competencies, which are mentioned e.g. in Article 73 nos. 3, 5 and 10 or in of
Article 74.1 no. 4 of the Basic Law (which also deal with matters that bear on relations
with foreign countries) make any sense.
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The attribution of authority in Article 73 no. 1 of the Basic Law must be seen, rather,
in the context of relations with foreign states, which shall, pursuant to Article 32.1 of
the Basic Law, be conducted by the Federal Republic. According to this interpretation, foreign affairs in the meaning of Article 73 no. 1 of the Basic Law are the issues
that are of importance for the relationship of the Federal Republic of Germany to other states or to intergovernmental institutions, especially as regards the organisation of
foreign policy. The Federal Constitutional Court’s holding, that only affairs that result
from the position of the Federal Republic of Germany as an international actor vis-àvis other states may be regarded as foreign affairs, must also be understood along
these lines (cf. BVerfGE 33, p. 52 [at p. 60]).
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This definition does not restrict the concept of foreign affairs to contacts under international law. The definition does not take matters that are regulated under international law, but the German state and its external relations as a starting point. For the
German state's external relations, events abroad whose authors are not foreign
states themselves may also be of importance. Such events should not, by means of
this definition, be excluded from the area of foreign affairs. It is therefore undisputed
that the creation of an agency concerned with comprehensive surveillance as regards
foreign countries falls under the competence of Article 73 no. 1 of the Basic Law. In
contrast, the aforementioned decision only aims at differentiating between the concept of foreign affairs and reactions on the domestic territory to cross-border activities
of private individuals (in this case, a law that prohibits the introduction of films that are
hostile to the Constitution from abroad into the Federal Republic of Germany); for this
reason, the prohibition was not based on Article 73 no. 1, but on Article 73 no. 5 of the
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