ply with the requirements that must be met in this context: i.e. a threshold for the
transfer that is established in § 3.5(1) as well as in § 3.1(1) of the G 10 Act, and a
particular review by an official who is qualified to hold judicial office established in
§ 3.5(2) of the G 10 Act.
4. The challenged provisions are, on the other hand, not fully consistent with the
principle of proportionality.
263
a) What is lacking, however, is not the suitability and necessity of the regulation for
achieving the desired objective.
264
It is obvious that the transfer of data to agencies whose mission is, inter alia, the prevention, resolution or prosecution of criminal offences, aids the fulfilment of this mission. Nor has the circle of receivers been expanded to include agencies that cannot
contribute to achieving the objective of the Act. Those agencies that are not entrusted
with tasks concerning the prosecution of criminal offences but only perform administrative or intelligence services functions, have, in any case, within the boundaries of
their mission, the possibility to prevent criminal offences.
265
There is no apparent means that would constitute a less intrusive encroachment
while at the same time promising similar chances for success. Within the boundaries
set by the authority they have been granted, the receiving agencies could not otherwise receive this information, which the Federal Intelligence Service can acquire due
to its broader authorisation to monitor telecommunications. Moreover, the parliament
has ensured compliance with the principle of necessity by limiting the duty to transfer
data to that data which is necessary for the execution of the receiving agency's duties.
266
b) The parliament, however, has not complied with the requirements that the principle of proportionality, in its narrower sense, places on regulations that permit encroachment upon fundamental rights.
267
aa) The more narrowly construed principle of proportionality prohibits encroachments upon fundamental rights of an intensity that is out of proportion to the importance of the matter and the harm the individual citizen must suffer (cf. BVerfGE 65,
p. 1 [at p. 54]). Rather, an adequate relationship between the importance of the fundamental rights in question and the seriousness of the restrictions on these fundamental rights must be established. In an overall balancing between the severity of the
encroachment on the one hand, and the importance and urgency of the reasons that
justify the encroachment on the other hand, the bounds of reasonableness must still
be respected (cf. BVerfGE 67, p. 157 [at pp. 173, 178]; established case law).
268
The severity of the encroachment upon telecommunications privacy that results
from the transfer permitted by the G 10 Act is best characterised by the fact that the
transfer of personal data constitutes another break of telecommunications privacy
that can result in an even greater impairment than the original encroachment (that
took place with the monitoring). The effect of data transfer is not limited to the expan-
269
66/77