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Right of Bundestag members to be informed of exports of military equipment after the Federal Security Council grants permits
Press Release No. 91/2014 of 21 October 2014
Judgment of 21 October 2014
2 BvE 5/11
In a judgment released today, the Second Senate of the Federal Constitutional Court ruled on the scope and limits of Parliament’s right to be informed of permits issued by the Federal Government for armaments exports. As a general rule, the Federal Government, if asked, is required to inform Bundestag Members that the Federal Security Council (Bundessicherheitsrat) has approved a given armaments export transaction or not. There is no constitutional requirement to provide any further information, such as the reasons for the decision. Nor is there any requirement to provide information about procedures that are still pending, such as advance queries, because the Federal Government’s autonomous process of forming a decision has not yet been completed at that stage.
The applicants in this dispute between constitutional bodies (Organstreit) were Bundestag Members Hans-Christian Ströbele, Katja Keul and Claudia Roth. In July 2011, they submitted questions to the Federal Government – the respondent in the proceedings – about exports of weapons to Saudi Arabia and Algeria. The respondent refused to answer any questions relating to specific approvals, pointing in particular to the need to keep decisions of the Federal Security Council secret. The applicants held that this refusal violated their rights as members of Parliament.
[Background: Pursuant to Art. 26 sec. 2 sentence 1 of the Basic Law (Grundgesetz – GG), arms intended for warfare may only be produced, transported and distributed with the permission of the Federal Government. Details are laid down by the War Weapons Control Act. According to established practice, particularly delicate decisions are made by the Federal Security Council, a cabinet committee chaired by the Chancellor. Pursuant to its (classified) rules of procedure, its sessions are confidential. According to practice, the Federal Government presents an annual report on arms exports, which contains statistical information on export permits issued and gives figures for the types of arms concerned as well as their destination. Decisions on preliminary inquiries whether individual export projects have prospects of being permitted, however, are not part of the report.]
Key Considerations of the Court:
The applications to the Court are in part well-founded.
1. Under Art. 38 sec. 1 sentence 2 and Art. 20 sec. 2 sentence 2 GG, the German Bundestag has a right to ask questions of, and to receive information from, the Federal Government, and in general this aligns with a corresponding duty of the Federal Government to give answers. Parliamentary oversight over the government first of all is an exercise of the principle of separation of powers, as Parliament cannot exercise its right of oversight without being a party to the government’s knowledge. Second, the bond of answerability between the people and the power of the state also operates through Parliament’s oversight over the government’s policies. Keeping secrets from Parliament limits that body’s options for oversight, and may thereby impair or disrupt the necessary democratic legitimation
2. Nevertheless, the Bundestag and its individual members do not have an unlimited entitlement to be informed. Their right is limited by the principle of separation of powers, by the welfare of the state, and by third parties’ fundamental rights.
a) Under Art. 26 sec. 2 sentence 1 GG, weapons designed for warfare may be manufactured, transported or marketed only with the permission of “the Federal Government”.
aa) However, it does not follow either from this allocation of responsibility, or from the significance of arms exports for foreign policy, that such exports are automatically exempt from all parliamentary oversight. Nevertheless, the government’s responsibility to Parliament and the people does presuppose a core sphere of autonomous executive decision-making. The deliberations and decision-making of the Federal Security Council are a part of that core sphere. Parliamentary oversight extends only to procedures that have already been completed.
In the present instance there is no need for a decision whether the Federal Government was and is entitled to establish the Federal Security Council and to transfer to that Council or to individual federal ministers the authority to decide on applications for the export of arms. This is because in legal relations with the Bundestag and its members, the Council’s decisions are to be attributed to the Federal Government, pursuant to Art. 26 sec. 2 sentence 1 GG.
bb) The formation of opinion within the Federal Government does not conclude simply with a positive answer to an advance query; it concludes only with the final decision of the Federal Security Council on a formal application for permission. Answering an advance query provides information only about whether an intended export is eligible for approval – not an assurance, still less a partial approval. Consequently, the Federal Security Council and the participating ministries are not bound by a positive response to an advance query.
Therefore any obligation for the Federal Government to give answers concerning advance queries would interfere with a multi-departmental decision-making process that is still pending. The Federal Security Council, which is not legally bound to its decision on the advance query, would be exposed to Parliamentary influence over its decision on the subsequent permit application. This would de facto empower Parliament to co-govern on a decision that is under the authority of the Federal Government alone. Parliament’s task of oversight would be distorted into a steering capacity to which it is not entitled in this sphere, according to Art. 26 sec. 2 sentence 1 GG.
cc) However, if asked, the Federal Government must inform the Bundestag and its members about any positive permit decision. According to the arguments by the respondent, in government practice the final decision is made by the Federal Security Council; this represents the point at which the Council’s decision leaves the core sphere of autonomous executive decision-making.
dd) The Federal Government is under no obligation to give information about the contents and course of deliberations within the Federal Security Council, or about the votes of its members. The Council’s members must be able to a particular degree to rely on its deliberations’ being kept confidential, because the decisions require a detailed assessment of the recipient countries that involve such matters as their political and military stability. Consequently, to disclose the course of deliberations would constitute a significant interference in the core sphere of autonomous executive decision-making. This interest in secrecy prevails over Parliament’s interest in obtaining information.
b) A further limit on the Bundestag’s entitlement to information is the welfare of the state, which may be endangered if information that requires secrecy becomes public.
aa) Disclosing information about whether the Federal Security Council has responded to an advance query could distort relations with the intended buyer country. For example, that country’s still-secret intentions to acquire military equipment might become public; moreover, if a negative assessment became known, it could amount to a public spurning of the country concerned. If the reasons for denying a permit or an advance query also had to be disclosed – such as the risk that weapons might be used in actions to break the peace or in human rights violations – foreign policy interests might be seriously impaired. It might furthermore become possible to derive inferences about sources of information that the Federal Government has a justified interest in keeping secret.
Decisions on arms exports regularly also have a diplomatic dimension above and beyond relations with the buyer country. If these decisions become public prematurely, they could make it easier for other countries to estimate German foreign policy and thus narrow the leeway for negotiation and accommodation. The same applies if the reasons for approving or denying a permit became known.
Early disclosure furthermore entails the danger that a third country might attempt to prevent the transaction, or that competing foreign companies might attempt to divert the transaction to themselves by offering more advantageous terms. This can justify the Federal Government’s interest in secrecy for the sake of the welfare of the state at least in such cases in which completing the export transaction is in the Federal Republic’s foreign policy interest. Moreover, maintaining a national defence sector is a legitimate goal of the state.
bb) The far-reaching effects of a positive decision on a permit by the Federal Security Council does not preclude the possibility that for the above reasons of the welfare of the state, the Federal Government may in exceptional cases also refuse to answer whether such a decision was made. There is no need to decide here when such a refusal to answer may be justified.
c) The Federal Government’s duty to answer is further limited by the fact that the business and trade secrets of the military equipment firms involved are protected by their fundamental rights (Art. 12 sec. 1 GG).
aa) The scope of protection under Art. 12 sec. 1 GG is not limited in this regard by Art. 26 sec. 2 sentence 1 GG. The Basic Law does not disapprove of preparing and initiating a transaction for the export of armaments, but rather, at most, of carrying one out without a permit.
bb) An interference with German military equipment companies’ freedom of occupation by disclosing business and trade secrets is justified insofar as the Federal Government releases information about the Federal Security Council’s decision to approve a specific transaction for the export of arms, and in that context provides information about the kind and number of weapons, the recipient country, the German companies involved, and the total volume of the transaction. Any further disclosures would as a general rule be a disproportionate interference with the companies’ freedom of occupation. That is particularly the case for disclosures which are so specific that they can be used to infer confidential information, such as the price per unit of a certain defence product.
In the requisite balancing of interests, the defence company’s interest in secrecy until the Federal Security Council reaches a final decision takes precedence over the legislators’ justified interest in information. During the phase when the transaction is being initiated, the information that a certain recipient country would like to acquire a certain defence product is particularly relevant to competition. No doubt the legislators’ interest in information is likewise especially high at this stage, but it is not deserving of protection because it is directed towards a manner of co-government that conflicts with the principle of separation of powers.
Once the Federal Security Council has reached a decision on a permit, the companies concerned are less in need of protection. For information that goes beyond the Federal Security Council’s decision on the permit and the basic data on the arms export transaction, however, the balance generally continues to lie in favour of the companies.
d) Measures adopted by Parliament to protect secrecy cannot resolve the conflict of interests described above.
aa) Restricting the right to ask questions to members of a parliamentary oversight body would indeed permit a substantially greater degree of secrecy, but would in turn interfere with the rights of the Members of Parliament not represented there. If such a power is delegated in the interest of particular confidentiality, the delegation must be absolutely necessary and restricted to a few exceptions with limited applications. Those requirements are not met here. The receipt of additional information would be counterbalanced by a significant restriction of parliamentary oversight and of the rights as parliamentarians of those Members of Parliament not represented in the body. Furthermore, withdrawing oversight from the parliamentary public would also eliminate oversight by the citizenry, which serves to keep Parliament effectively responsible to the voters.
bb) The conflict of interests also cannot be resolved by releasing information subject to the Bundestag’s Rules on Document Security. Members of Parliament would be unable to mention information obtained under the terms of the Rules on Document Security in the process of forming public opinion. Yet public awareness is essential to exercising Parliament’s supervisory function. In political reality, the right to ask questions is quite predominantly a resource used by the opposition, which must fundamentally rely on publicity in order to be effective.
e) The Federal Government’s duty to answer parliamentary questions about positive permit decisions by the Federal Security Council is not met simply by the Reports on Military Equipment Exports released annually. Not only the structure and content of the information in a Report on Military Equipment Exports, but also its timing, are decided not by Parliament, but by the Federal Government. The Federal Government’s Reports on Military Equipment Exports are furthermore not sufficiently specific to satisfy Parliament’s justified interest in being informed.
f) Subject to the above bounds, a general invocation of the need to keep deliberations of the Federal Security Council secret is sufficient; there is no need for a separate statement of reasons for refusing an answer. However, there is an obligation to state reasons if the Federal Government intends to deny information about a permit that has been granted, or about general features of the export transaction that are to be communicated in this context.
3. The respondent has in part violated the applicants’ rights under Art. 38 sec. 1 sentence 2 GG and Art. 20 sec. 2 sentence 2 GG.
a) The additional question by applicant Hans-Christian Ströbele during question time in the German Bundestag on 6 July 2011 was directed in part to whether the Federal Government had knowledge of violations of human rights and citizens’ rights in Saudi Arabia. An answer cannot be refused on the grounds of the principle of departmental responsibility – here, the lack of authority of the Federal Ministry for Economic Affairs and Technology – because the Members of Parliament have a right to ask questions of the Federal Government as a whole.
b) In answering written question 7/193 from Member of Parliament Hans-Christian Ströbele dated 14 July 2011, the respondent was under an obligation to tell the applicant whether the Federal Security Council had approved the delivery of 200 tanks of the Leopard model to Saudi Arabia. However, the respondent was not required to provide any information beyond that point.
c) In response to written question 7/132 from applicant Katja Keul of July 2011, the respondent should have provided information as to whether, and if so, when, the Federal Security Council approved the sale of the relevant military goods to Algeria. However, the respondent was under no obligation to disclose the reasons for the Federal Security Council’s decision, if such a decision was reached.