XI.
The provision of § 9.2(3) of the G 10 Act, which provides for the control of the monitoring measures by the Commission, is inconsistent with Article 10 of the Basic Law.
It does not sufficiently ensure that the control covers the entire process of screening
and utilisation of the data. Without such control, the challenged regulations that contain authorisations could not continue to exist. It is true that § 9.2(3) of the G 10 Act
provides that the Commission decides about the permissibility and necessity of measures restricting telecommunications privacy. It is not clear, however, what is to be
understood by measures restricting telecommunications privacy. The subsequent
provision of § 9.2(4) of the G 10 Act, according to which the responsible Federal Minister is to immediately cancel any orders which the Commission declares impermissible or unnecessary, could be interpreted to mean that the authorisation to control only
refers to the ministerial order.
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Such a view, which is incompatible with Article 10 of the Basic Law, is not only in the
range of possibility. Rather, the Federal government expressed exactly such an interpretation in a letter to the G 10 Commission dated 9 December 1996. In spite of its diverging interpretation of the law, the Commission accepted this view and has since
refrained from controlling in the cases of §§ 3.3, 3.5, 3.6 and § 3.8 of the G 10 Act.
Due to the strict requirements placed on specificity when personal data is involved,
the regulation therefore requires that the scope of its application be clarified. This
clarification is to be made by the parliament.
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Moreover it must be ensured that the G 10 Commission, in view of the fact that the
Fight against Crime Act has considerably expanded the Federal Intelligence Service's monitoring activities, is provided with the staff needed to effectively fulfil its mission. Moreover, it must be ensured that sufficient control exists also in the administrative sector on the level of the Länder (Federal states) level, as far as the data
obtained by eliminating telecommunication privacy is transferred to Land (Federal
state) authorities pursuant § 3.5 of the G 10 Act.
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XII.
To the extent that this judgement obliges the parliament to create consistency with
the Basic Law, its time limit for doing so is 30 June 2001.
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In the meantime, § 3.1 sent. 2 no. 5 of the G 10 Act may only be applied if counterfeiting committed abroad results in a threat to monetary stability in the Federal Republic of Germany. § 3.3(2) of the G 10 Act is to be applied with the limitation that the
personal data contained in the Commission's report to the Federal government is
marked and that it remains bound to the objectives that justified the collection of the
data in the first place. § 3.4 of the G 10 Act is to be applied with the limitation that the
personal data may be marked and may not be used for other objectives than those
specified in § 3.1 of the G 10 Act.
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§ 3.5(1) in conjunction with § 3.3(1) of the G 10 Act is applicable with the limitation
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75/77