Federal Constitutional Court - Press office -
Press release no. 87/2009 of 30 July 2009
Order of 1 July 2009 – 2 BvE 5/06 –
Response to “minor interpellations” by the Federal Government
not constitutional
The decision of the European Court of Human Rights of 6 June 2006, which
among other things addressed a complaint filed by members of the Swedish
parliament who had been spied on by Swedish intelligence services, was
the specific reason for a request for information filed by four members
of the German Bundestag and the parliamentary group Alliance 90/The
Greens. On 13 June 2006 and on 1 August 2006, the five Applicants
submitted so-called “minor interpellations” to the Federal Government in
order to learn whether and, if so, what information was collected by the
German Federal Intelligence Service (Bundesnachrichtendienst – BND) and
the intelligence services of the Länder ( individual federal states)
about members of the Bundestag. The Federal Government refused to
respond, partly on the grounds that as a matter of principle it only
issues statements on the manner of working, on the strategy and the
current knowledge of the federal intelligence services, constituting
classified information, within the relevant committees of the Bundestag.
The Federal Government also pointed out that it had reported on the
matter to the Parliamentary Control Committee on 5 April 2006, that it
had issued statements to the Council of Elders of the Bundestag
regarding the legal requirements of and limitations on the observation
of members of parliament by the intelligence services, and that it would
only comment on such matters in the relevant specific committees of the
Bundestag. The Federal Government refused to provide information in
response to individual questions on the grounds that the work of the
intelligence services would be jeopardised. As regards the questions
concerning matters preceding the 9th electoral term of the Bundestag,
the Federal Government referred to the statutory deletion obligations,
as a result of which the corresponding data was not longer available.
Any existing information on past files relating to the periods in
question could not be obtained on the basis of a “minor interpellation”
within the time frame available under § 104 of the Rules of Procedure of
the Bundestag.
In Organstreit proceedings (proceedings on a dispute between supreme
federal bodies), the four members of the Bundestag and the parliamentary
group Alliance 90/The Greens as Applicants requested a finding that in
its responses to the “minor interpellations,” the Federal Government had
violated their rights and those of the Bundestag. They also requested an
obligation to be imposed on the Federal Government to provide the
information requested, or alternatively to provide the information to
the extent and in a form consistent with the objective secrecy interests
of the Federal Republic of Germany.
The Second Senate of the Federal Constitutional Court held in its
decision of 1 July 2009 that the Federal Government had refused to
provide the information requested by the Applicants in the “minor
interpellations” of 13 June 2006 and 1 August 2006 on grounds that do
not stand up to scrutiny under constitutional law, thus violating the
Applicants’ rights under Article 38.1 sentence 2 of the Basic Law
(Grundgesetz – GG), and those of the Bundestag under Article 20.2
sentence 2 GG. In particular, it was held that reference to reporting
made to other parliamentary control bodies did not release the Federal
Government from its obligation to report to the Bundestag. In addition,
the sweeping refusal to provide information on grounds of its classified
nature was not consistent with the requirements of constitutional law.
The applications are in part inadmissible since their grounds do not
address the responses to the questions mentioned and insofar as they
concern an obligation of the Federal Government to provide information.
The decision is essentially based on the following considerations:
It is clear from the case-law of the Federal Constitutional Court and
undisputed by the parties that a right to submit questions and to obtain
information accrues to the Bundestag against the Federal Government
pursuant to Article 38.1sentence 2 and Article 20.2 sentence 2 GG. The
individual members of parliament and the parliamentary groups as
associations of members of parliament may avail themselves of the right
in accordance with the rules of procedure of the Bundestag, and in
principle the Federal Government is under an obligation to respond. Nor
is there any doubt that the obligation of the Federal Government to
respond is subject to limitations. However, such limitations require
evaluation in each individual case. In particular, insofar as questions
concern matters that are classified in the interest of the Federal
Republic or one of the Länder (state interests), the question arises
whether and how this interest can be aligned with the relevant
parliamentary claim for information.
The question whether the legislature is entitled to regulate the
parliamentary claims for information by reason of constitutional law
such that the Federal Government would only have to provide information
about the work of the federal intelligence services that it considered
to be classified information to a certain committee of the Bundestag,
can remain unanswered. The reason is that there is no such provision:
the Parliamentary Control Committee is an additional instrument of
parliamentary control of the government, which does not supersede the
parliamentary claims for information (see also Bundestag document
(Bundestagsdrucksache – BTDrucks) 8/1599 p. 6). Otherwise, by
establishing the Parliamentary Control Committee, the Bundestag would
have deprived itself of essential possibilities to obtain information,
and the control of the Federal Government would have deteriorated rather
than improved as regards the work of the federal intelligence services.
The above considerations apply insofar as the view taken by the
Respondent relates to other committees of the Bundestag. In particular,
the parliamentary right to raise questions is not superseded by the
institution of a committee of inquiry or by the fact that the Council of
Elders addresses such questions (§ 6 of the Rules of Procedure of the
Bundestag (Geschäftsordnung des Deutschen Bundestages – GO-BT)).
The refusal to provide information based solely on its classified nature
ultimately constitutes a violation as well. The Federal Government has
to place the Bundestag in a position to perform its duty of
parliamentary control of the acts of government effectively, also in
view of the requirement of mutual consideration in relations between
constitutional bodies. Apart from cases in which secrecy is evidently
necessary, it is only on the basis of detailed grounds appropriate to
the relevant situation that the Bundestag is able to judge and decide
whether it accepts a refusal to respond, or what further steps it will
take in order to enforce its request for information in whole or at
least in part.
Nor is it apparent that the information requested by the Applicants is
classified insofar as the questions concern information about the
collection, storage and disclosure of data on members of the Bundestag
by the federal intelligence services. It is not evident that the
response to these questions entails the disclosure of details on the
manner of work, strategies, methods and the current knowledge of the
intelligence services as argued by the Respondent, which would
jeopardise their ability to operate and perform their duties (Bundestag
document 16/2098 on question 5). The sweeping argument that a response
to the questions would permit conclusions about the work of the
intelligence services which would jeopardise their ability to operate
and perform their duties, does not contain any specific indication
whatsoever which renders the refusal to provide information plausible.
The observation of members of parliament by the intelligence services
involves considerable risks with regard to their independence (Article
38.1sentence 2 GG) and with regard to the participation of the relevant
political parties in the formation of the political will of the people
(Article 21 GG), and hence for the entire process of the formation of a
democratic will. The corresponding need of the Bundestag to obtain
information is of substantial significance. If the protection of
classified information is to prevail over that need as a conflicting
interest, specific grounds have to be stated.
The Respondent also violated the Applicants’ constitutional rights by
responding to the question whether it was aware of cases in which
information about members of parliament had been collected, stored or
disclosed by other services, especially in LänderA, to the effect that it
would not comment on matters falling within the competence of the
Länder. The Federal Government was under an obligation to provide not
merely a sweeping response, but, rather, detailed grounds based on the
questions, which evidently related also to the sphere of responsibility
of the Federal Government. The questions concerned the work of the
authorities directly subordinate to the Respondent as well as the
latter’s current knowledge about the activities of other intelligence
services.
The reference made to the statutory deletion obligations does not
suffice as grounds for the refusal to provide information either. Since
the parliamentary claim for information also extends to matters lying in
the past with regard to their potential political significance, matters
which concern the sphere of responsibility of previous Federal
Governments, the present Federal Government could be under an obligation
of reconstruction insofar as is reasonable. The mere reference to
statutory deletion obligations meant the Respondent failed to state
adequately that it was unable to procure the information requested. Nor
did the Respondent state that the information could only be obtained
with unreasonable effort.
The reference to the impossibility of providing a response within the
period set out in the Rules of Procedure of the Bundestag failed to take
into account the fact that the 14-day period laid down in § 104.2
half-sentence 1 of such Rules of Procedure, can be extended in
consultation with the party raising the question (§ 104.2 half-sentence
2 of the Rules of Procedure of the Bundestag).
This press release is also available in the original german version.
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