Basic Law.
The Federal Republic of Germany is not prohibited from drawing legislative consequences relating to domestic affairs from intelligence about foreign countries that is
gathered by making use of its authority under Article 73 no. 1 of the Basic Law, to the
extent that the Federal Republic has a competence of its own for issuing such legislation. In the areas touching upon the fight against crime, however, it is of importance
that Article 73 no. 10 of the Basic Law confers to the Federal Republic of Germany
specified and, at the same time, limited legislative authority concerning the cooperation between the Federal Republic and the Länder in the areas of criminal investigation, for the establishment of a Federal Office of Criminal Investigation and for
the international fight against crime. This does not mean the fight against international criminal offences but the fight against crime on an international level, like e.g. the
co-operation of German and foreign authorities in criminal investigations. Apart from
that, police law falls under the authority of the Länder, as it is concerned with the resistance to threats. Therefore, the question whether a required separation between
the police and the intelligence services can be derived from the legislative competencies is not of importance in this context (also cf. BVerfGE 97, p. 198 [at p. 217]).
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From all this, it follows that the challenged regulations must be embedded in a context of regulation and use that refers to foreign surveillance for them to arise out of the
legislative competence from Article 73 no. 1 of the Basic Law. Contrary to this, Article
73 no. 1 of the Basic Law does not entitle the Federal parliament to confer authority to
the Federal Intelligence Service that is aimed at preventing, hindering or prosecuting
criminal offences as such. This does not preclude the possibility that parallel or overlapping activities may exist in the various areas of observation and information, as
long as the missions and activities of the different agencies, which are clearly delimited by the division of authority, remain separate.
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b) The regulation in § 1.1 and § 3.1 sent. 2 nos. 1 to 6 of the 1994 Fight against
Crime Act can be identified as belonging to the legislative competence over foreign
affairs. This is obvious as regards the threat of an armed aggression (no. 1), which,
apart from this, also belongs to the area of competence over defence, but also applies to the areas of threat specified under nos. 2 to 6.
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Certainly, the doubts that the complainants have expressed concerning the authority of the Federal parliament do not lack all merit. The new areas of threat have, in fact,
been integrated into the G 10 Act in the framework of the Fight against Crime Act.
Moreover, they are defined by specified activities that are relevant under criminal law,
albeit not by elements of criminal offence as in § 3.3 of the G 10 Act. Moreover, § 3.5
of the G 10 Act obliges the Federal Intelligence Service to transfer information that is
relevant under criminal law to authorities concerned with crime prevention and prosecution. Finally, the preparatory materials to the law in question contain statements
that provide indications that the Federal Intelligence Service was expected to be involved in the fight against crime.
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