Order of 3 February 2026

R e a s o n s :

1

The constitutional complaint concerns licenses granted by the Federal Office for Economic Affairs and Export Control to the third party summoned to join the proceedings as a party whose rights may be affected (Beigeladener, hereinafter: summoned third party) in the initial proceedings. These licenses concerned the export of military equipment – more precisely transmission components for tanks – intended to remain in Israel. The constitutional complaint raises the question whether a duty of protection that may exist vis-à-vis the Palestinian complainant and the requirement of effective legal protection were violated in the proceedings before the ordinary courts in which the complainant challenged the licenses in question as a third party (Drittanfechtungsverfahren).

2

The complainant is a Palestinian living in Gaza. His wife and daughter were killed in an Israeli air strike on 20 February 2024. His father and three brothers lost their lives in an Israeli air strike on 4 December 2024.

3

The summoned third party in the initial proceedings is a market-listed manufacturer of, inter alia, transmissions, drive systems and components for military vehicles.

I. 

4

1. In response to the Hamas-led terrorist attacks of 7 October 2023 on Israeli territory, in which approximately 1,200 people had been killed and approximately 250 individuals taken as hostages, the Israeli armed forces launched a series of military attacks on Gaza, including a ground offensive. On 9 October 2025, the Israeli government and representatives of Hamas agreed to a ceasefire; yet, attacks and violent confrontations continue. So far, it is difficult to precisely determine the number of victims and accurately judge the consequences of the military campaign. However, it is undisputed that the campaign resulted in a large number of civilian casualties and massive destruction of civilian infrastructure. The humanitarian situation in large parts of Gaza is widely described as remaining catastrophic.

5

2. The Israeli military campaign in Gaza led to widespread criticism on the international stage and is the subject of various proceedings before international courts.

6

a) Numerous reports and statements by United Nations bodies and agencies estimate that the conduct of Israel in Gaza constitutes a severe violation of international humanitarian law and contravenes the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter: the Genocide Convention) (cf. among many Human Rights Council, Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, Legal analysis of the conduct of Israel in Gaza pursuant to the Convention on the Prevention and Punishment of the Crime of Genocide, UN Doc. A/HRC/60/CRP.3, 16 September 2025; Report of the United Nations High Commissioner for Human Rights, Human rights situation in the Occupied Palestinian Territory, including East Jerusalem, and the obligation to ensure accountability and justice, UN Doc. A/HRC/55/28, 4 March 2024). On 25 March 2024, in a resolution binding under public international law, the United Nations Security Council, expressing deep concern about the catastrophic humanitarian situation in Gaza, demanded an immediate ceasefire (UN Doc. S/RES/2728 (2024)).

7

b) The European Council repeatedly called for compliance with international humanitarian law (cf., e.g., Conclusions of the European Council of 21 March 2024, no. 20 ff.; Conclusions of the European Council of 27 June 2024, no. 16 ff.; Conclusions of the European Council of 26 June 2025, no. 5 ff.; all available online at https://www.consilium.europa.eu/de/documents/public-register/euco-conclusions/). In May 2025, a majority of the foreign ministers of the EU Member States expressed their support for reviewing Israel’s compliance with the EU-Israel Association Agreement (Euro-Mediterranean Agreement) (2000 O.J. (L 147) 3 of 21 June 2000) (cf. Press Release of the High Representative of the European Union for Foreign Affairs and Security Policy, Kaja Kallas, of 20 May 2025, available at https://www.eeas.europa.eu/eeas/foreign-affairs-council-press-remarks-high-representative-kaja-kallas-after-meeting-2_en). On 23 June 2025, the European External Action Service presented a report which cited indications that Israel had violated international human rights in the course of its military campaign and thereby breached its obligations under Art. 2 of the Euro-Mediterranean Agreement (cf. European Commission, Proposal for a Council Decisions on the partial suspension of the Agreement between the European Union, of the one part, and Israel, of the other part, on the participation of Israel in the Union programme Horizon Europe – the Framework Programme for Research and Innovation, COM(2025) 620, 28 July 2025, p. 3). The European Council acknowledged the report in its meeting of 23 June 2025, but did not agree to take any measures (cf. Conclusions of the European Council of 26 June 2026, loc. cit., no. 5). Based on the report, the European Commission suggested on 28 July 2025 to partially suspend the agreement on Israel’s participation in the EU Research Programme ‘Horizon Europe’ (cf. Proposal for a Council Decision of 28 July 2025, loc. cit., p. 3) and on 17 September 2025 to partially suspend the Euro-Mediterranean Agreement (cf. European Commission, Proposal for a Council Decision on the suspension of certain trade-related provisions of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, COM(2025) 890, 17 September 2025).

8

c) On 12 August 2025, the Council of Europe’s Commissioner for Human Rights called for the Member States to assist in the prevention of human rights violations and in particular to restrict arms transfers (cf. statement of the Council of Europe’s Commissioner for Human Rights, Michael O’Flaherty of 12 August 2025, available at https://www.coe.int/en/web/commissioner/-/conflict-in-gaza-council-of-europe-member-states-should-refrain-from-arms-transfers-that-could-lead-to-human-rights-violations). In Resolution 2524 of 23 January 2024, Resolution 2582 of 28 January 2025 and Resolution 2623 of 2 October 2025 (all available at https://pace.coe.int/en/pages/official-documents), the Parliamentary Assembly of the Council of Europe called for strict compliance with international humanitarian law and the entry into and distribution of humanitarian aid in Gaza. In Resolution 2623 of 2 October 2025, the Assembly emphasised that the deliberate targeting of civilians and the widespread destruction of civilian infrastructure represented grave violations of international humanitarian law that could not be justified under the pretext of self-defence.

9

d) On 29 December 2023, the Republic of South Africa instituted proceedings against Israel before the International Court of Justice and requested the indication of provisional measures according to Art. 41 of the Statute of the International Court of Justice, claiming that Israel was violating its obligations under the UN Genocide Convention in Gaza. By order of 26 January 2024, the International Court of Justice – relying on the scope of the military campaign and its consequences (cf. ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), 26 January 2024, ICJ Reports 2024, 3 <20 ff. paras. 46-50>) as well as statements made by several senior officials of the Israeli government (ICJ, loc. cit., pp. 22 f., paras. 51-53) – concluded that at least some of the rights claimed by South Africa under the UN Genocide Convention were plausible (ICJ, loc. cit., p. 23, para. 54) and that there was a real and imminent risk that irreparable prejudice would be caused to those rights (ICJ, loc. cit., pp. 26 ff., paras. 65-74). The International Court of Justice therefore indicated a number of provisional measures. In particular, it ordered Israel to take immediate and effective measures to enable the provision of humanitarian assistance. South Africa’s request to order an immediate halt to all military operations was not accepted by the Court. On 28 March 2024 (cf. ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), 28 March 2024, ICJ Reports 2024, 513) and 24 May 2024 (cf. ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), 24 May 2024, ICJ Reports 2024, 649) the International Court of Justice reaffirmed and extended its provisional measures. Proceedings on the merits are still pending.

10

e) On 1 March 2024, the Republic of Nicaragua instituted proceedings before the International Court of Justice against the Federal Republic of Germany, alleging that through its support of Israel, Germany breached its obligations under the UN Genocide Convention and international humanitarian law. The International Court of Justice rejected Nicaragua’s request for the indication of provisional measures – including the request to order Germany to provisionally cease all military support including the export of military equipment and arms – by order of 30 April 2024. At the same time, the International Court of Justice declined Germany’s request to dismiss the case on grounds of inadmissibility. Hence, the main proceedings in this matter are also still pending. For its dismissal of Nicaragua’s request in its order of 30 April 2024, the International Court of Justice relied on Germany’s legal framework on the export of military equipment and its protective mechanisms. It considered, inter alia, that the national legal framework for the export of weapons and other military equipment required a licensing process involving several ministries. For every licence that is granted, an assessment would be carried out by the Federal Government to ascertain whether there was a clear risk of the UN Genocide Convention or of international humanitarian law (cf. ICJ, Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany), 30 April 2024, ICJ Reports 2024, 560 <566 para. 17>). In addition, the International Court of Justice noted that there was a significant decrease in the scope of licenses granted for the export of arms and other military equipment to Israel (cf. ICJ, loc. cit., p. 566, para. 18).

11

f) On 21 November 2024, the International Criminal Court issued warrants of arrest for Israeli Prime Minister Netanyahu and former Israeli Minister of Defence Galant for crimes against humanity and war crimes (cf. press release of the International Criminal Court of 21 November 2024, available at https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges).

12

g) In the case Alhaj v. Germany and the United Kingdom before the European Court of Human Rights, the applicant – who claimed to be a Palestinian living in Gaza – requested that the Federal Republic of Germany and the United Kingdom be ordered to stop the export of arms and ammunition to Israel. The Court unanimously rejected the request for interim measures in an unpublished chamber decision in February 2025. It considered the applicant’s request to fall outside the scope of Rule 39 of the Rules of Procedure of the Court, in which the indication of interim measures is laid down (cf. European Court of Human Rights, Alhaj v. Germany and the United Kingdom, no. 4229/25, press release 063(2025) of 26 February 2025).

II. 

13

The Federal Republic of Germany is one of Israel’s largest suppliers of arms and other military equipment.

14

In 2023, the Federal Government licensed the export of military equipment valued at EUR 326,505,156.00 to Israel. 32.8% of these export licenses were granted for ‘cross-country vehicles with ballistic protection and parts for armoured vehicles, main battle tanks, armoured self-propelled howitzers and trucks’ (cf. Report by the Government of the Federal Republic of Germany on Its Policy on Exports of Conventional Military Equipment in 2023, Bundestag document, Bundestagsdrucksache – BTDrucks 20/14515, p. 81). In the proceedings before the International Court of Justice, the Federal Government stated that the vast majority of licenses had been granted in the immediate aftermath of the Hamas-led terrorist attacks: The value of goods for which export licenses were granted significantly decreased from approximately EUR 200 million in October 2023 to approximately EUR 24 million in November 2023 (cf. ICJ, Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany), 30 April 2024, ICJ Reports 2024, 560 <566 para. 18>). Most recently, licenses for the export of war weapons had only been granted in four cases for ammunition and portable anti-tank weapons, inter alia (cf. ICJ, loc. cit., p. 566, para. 18). In February 2024, the Federal Government also granted licenses for the export of a small amount of ammunition and propelling charges included in the War Weapons List (Kriegswaffenliste) to Israel (cf. [...] BTDrucks 20/11838, p. 8). No further licenses for the final export of goods included in the War Weapons List were granted (cf. [...] BTDrucks 21/1958, p. 2).

15

With regard to other military equipment, the Federal Government granted licenses for the export of material with a total value of EUR 163,767,512.00. 29.3% of these export licenses were granted for ‘parts for armoured vehicles, main battle tanks and armoured self-propelled howitzers (cf. Report by the Government of the Federal Republic of Germany on Its Policy on Exports of Conventional Military Equipment in 2024, BTDrucks 21/1450, p. 81).

16

For the first half of 2025, the Federal Government reported that licenses for the export of military equipment to Israel with a total value of EUR 86,809,879.00 had been granted. 59.9% of these export licenses had been granted for ‘cross-country vehicles with ballistic protection, materials or components to outfit vehicles with ballistic protection, parts for armoured vehicles and parts for main battle tanks’ (cf. Report by the Government of the Federal Republic of Germany on Its Policy on Exports of Conventional Military Equipment in the first half of 2025, 10 December 2025, p. 13, [...]).

17

On 8 August 2025, the Federal Government issued a press release, stating that in view of the ‘ever intensifying military operations of the Israeli armed forces’ and the ‘enduring suffering inflicted on the civilian population in Gaza’, it would, for the time being, refrain from issuing any new licenses for the export of military equipment that could be deployed in Gaza. Consequences for export licenses previously granted were not announced (cf. Press and Information Office of the Federal Government (Presse- und Informationsamt der Bundesregierung), Press Release 178 of 8 August 2025). On 17 November 2025 – after the ceasefire agreement had been reached – the Federal Government stated that it would resume examining applications for licenses for exports of military equipment to Israel as of 24 November 2025.

III. 

18

1. On 11 and 16 October 2024, the Federal Office for Economic Affairs and Export Control granted the export licenses at issue in the present case to the summoned third party in the initial proceedings. According to statements made by the Federal Government, the value of these licenses amounts to a total of approximately EUR 4.5 million. The licenses pertain to transmission-casings for tanks and other unspecified goods for re-export that were already owned by Israel. Pursuant to § 14(2) of the Foreign Trade and Payments Act (Außenwirtschaftsgesetz – AWG), the licenses are immediately enforceable.

19

2. The complainant learned of the granted export licenses through a report of the news magazine ‘DER SPIEGEL’ and subsequently lodged preliminary objection proceedings as a third party (Drittwiderspruch) challenging the two export licenses on 18 October 2024. On 24 October 2024, the complainant petitioned the Frankfurt am Main Administrative Court to order suspensive effect of the third party objection proceedings by way of interim legal protection pursuant to § 80a(1) no. 2, § 80(2) no. 3 and § 80(5) of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung – VwGO). He argued that the export licenses violated a specific duty of protection with regard to his right to life. As a result of the challenged export licenses, the Israeli armed forces were able to conduct illicit military operations using battle tanks at the complainant’s place of residence, thus endangering or harming his life and limb. For this reason, the complainant claimed that § 4(1) of the Foreign Trade and Payments Act in conjunction with § 8(1) of the Trade and Payments Act and § 8(1) of the Trade and Payments Ordinance (Außenwirtschaftsverordnung – AWV) had to be interpreted in conformity with the Constitution so as to convey third party protection. He argued that he had legal standing to challenge a decision by which the competent authority had granted an export license to a third party on the grounds that the competent authority had not properly accounted for his constitutional rights and claimed that, in the present case, the discretion afforded to the authorities was limited in such a way that revoking the export licenses previously granted was the only option.

20

3. By order of 16 December 2024 - 5 L 3799/24.F -, the Frankfurt am Main Administrative Court rejected the application. It held that the complainant lacked legal standing. He could not claim that his individual rights had been violated, because the legal provisions in question did not convey actionable individual rights. [...]

21

[...]

22

4. The complaint’s appeal against this order was rejected by the Higher Administrative Court of Hesse (Hessischer Verwaltungsgerichtshof) by order of 19 September 2025 - 6 B 2457/24 -.

23

a) It held that the export licenses did not constitute administrative acts with effects for third parties (Verwaltungsakte mit Drittwirkung), with the consequence that the application under § 80a(3) second sentence, § 80(5) first sentence first alternative, § 80(2) first sentence no. 3 of the Code of Administrative Court Procedure was formally inadmissible. [...]

24

b) Furthermore, the Higher Administrative Court held that in any case, the Administrative Court’s finding that the complainant lacked the necessary legal standing was justified.

25

aa) It concluded that foreign trade and payments law, and § 4(1) of the Foreign Trade and Payments Act in particular, did not convey individual rights protection on third parties. [...]

26

[...]

27

bb) It further found that neither Art. 2(2) first sentence of the Basic Law (Grundgesetz – GG) nor a duty of protection arising from it granted the complainant standing within the meaning of § 42(2) of the Code of Administrative Court Procedure.

28

(1) The Higher Administrative Court held that such a duty of protection appeared to be genuinely unsuitable to grant a third party standing to initiate objection proceedings (Drittanfechtungsbefugnis) with regard to export licenses under foreign trade and payments law. The duty of protection had no ‘definite content’ that could amount to a specific claim of protection against interferences with constitutional rights. Rather, it encompassed an array of possible protective actions, meaning that the complainant could not compel the revocation of the export licenses at issue on the basis of an alleged violation of such a duty. Within the required scope of protection, the Federal Government enjoyed discretion in deciding how to address potential risks that exported goods might be used in ways alleged to violate public international law. If the state’s duty of protection did not mandate a specific measure, such as the revocation of the export licenses in the present case, it could not convey standing in administrative third-party objection proceedings either. Instead, the affected person would have to initiate general proceedings before the administrative courts, in which they could seek to compel a certain action or forbearance from the state to address the alleged lack of protection.

29

(2) The Higher Administrative Court further held that, in any case, the Administrative Court did not misinterpret the constitutional standards that applied to a potential duty of protection. In general, the fundamental right to life and physical integrity under Art. 2(2) first sentence of the Basic Law in conjunction with Art. 1(2) of the Basic Law and the Basic Law’s principle of openness to international law could give rise to a duty of protection requiring the state authorities to work toward ensuring that third countries comply with provisions of international humanitarian law that serve the protection of life and the applicable human rights. Yet, where this danger originated from the actions of a foreign state, this general mandate to protect could only give rise to a specific duty of protection if there was a serious risk that international humanitarian law and/or international human rights are systematically violated by the actions of the foreign state. In addition, a duty of protection required the existence of a sufficient link to the sovereign powers of the Federal Republic of Germany, establishing the necessary nexus of responsibility. When assessing whether there was a serious risk of systematic violations of public international law and deciding how to address it, the legal view of the German state bodies competent to decide in matters of foreign affairs and security policy would need to be carefully considered insofar as their legal view proved to be tenable.

30

In the case at hand, the Higher Administrative Court found no sufficient link to German sovereign powers. It stated that according to the standards developed by the Federal Constitutional Court in the decision on the deployment of drones from Ramstein Air Base, such a link required a specific contribution of some significance going beyond mere factual causation. Conversely, a purely – possibly even indirect – causal relationship would not suffice to give rise to a duty of protection of the state. Otherwise, an unlimited obligation to act would be imposed on German sovereign power, which foreign states might perceive to be intruding on their sovereignty. It held that the necessary nexus of responsibility between the claimed threat and German sovereign power could not be established in the present case. When assessing the specific circumstances of the individual case, it had to be taken into account that granting export licenses was, from a normative standpoint, a neutral form of state action. The export licenses at issue in the present case had no direct connection to the claimed threat because the decision on how the equipment was actually deployed lay beyond the decision-making powers of German state authorities. Thus, German state authorities had not made a conscious – let alone a deliberate – contribution to killings in breach of public international law. Unlike in the case of Ramstein Air Base, there was no genuine possibility for German state authorities to act and exert influence with regard to the claimed threats in the case at hand. When, where and how the exported military equipment would be used depended on the demand, the technical circumstances, the delivered amount and the time of delivery, the deployment profile, the rate of depletion of stocks, as well as the strategic considerations and priorities of Israeli military command. [...]

31

The court held that a mere causal relationship was not enough to establish a sufficient link between a threat and German sovereign power. If – as in the present case – the complainant did not challenge the practice of issuing export licenses in general, but rather two specific export licenses, it had to be established that these specific licenses entailed a serious risk of systematic violations of public international law. If the licenses did not give rise to a sufficiently discernible threat to the complainant’s legal interests protected under Art. 2(2) first sentence of the Basic Law, it could not be assumed that the constitutional duty of protection entitled the complainant to demand specific measures with regard to those licenses.

32

The Higher Administrative Court continued by stating that an assessment of the Israeli military operation in Gaza under public international law was not necessary, because the required link between the export licenses and the potential harm to the complainant’s legal interests could not be established. Given that the Israeli military deployed tanks in different scenarios and locations, it was just as possible that the transmission components which form the subject of the present proceedings would not be used in Gaza and that they would not affect the complainant in the way he feared. It could not be predicted when potential risks might materialise and, as the factual circumstances were constantly changing, it was possible that they would not materialise at all. There was thus only a latent danger to the complainant’s individual rights. Since a sufficient link to the sovereign powers of the Federal Republic of Germany could not be established, it was not necessary to decide whether there were strong indications that the military operations of the Israeli armed forces gave rise to a serious risk of systematic violations of international humanitarian law and international human rights.

33

cc) Finally, the Higher Administrative Court held that standing under § 42(2) of the Code of Administrative Court Procedure was also not to be granted based on the European Convention of Human Rights (hereinafter: ECHR), given that the present case did not fall within the scope of application of the ECHR set out in its Art. 1. [...]

34

5. On 5 December 2025 – after the constitutional complaint had been filed – the Federal Office for Economic Affairs and Export Control issued an administrative order rejecting the third-party objection of the complainant against the export licenses granted to the summoned third party on 11 and 16 October 2024. The Federal Office argued that the complainant did not have standing to lodge objection proceedings because he failed to sufficiently show a violation of his own rights.

35

On 10 December 2025, the complainant initiated principal legal action against the export licenses that had been granted to the summoned third party in the initial proceedings on 11 and 16 December 2024. These principal proceedings are currently still pending.

IV. 

36

With his constitutional complaint, the complainant challenges the orders of the Frankfurt am Main Administrative Court of 16 December 2024 and of the Higher Administrative Court of Hesse of 19 September 2025, as well as the export licenses granted by the Federal Office for Economic Affairs and Export Control to the summoned third party in the initial proceedings on 11 and 16 October 2024. He asserts a violation of his fundamental rights under Art. 2(2) first sentence of the Basic Law and Art. 19(4) first sentence of the Basic Law.

37-49

[...]

V. 

50

1. The Ministry of Justice and for the Rule of Law of the Land of Hesse (Hessisches Ministerium der Justiz und für den Rechtsstaat), the Federal Ministry for Economic Affairs and Energy and the summoned third party in the initial proceedings were given the opportunity to submit statements.

51

a) The Ministry of Justice and for the Rule of Law of the Land of Hesse did not make a statement.

52

b) The Federal Ministry for Economic Affairs and Energy submitted a statement on behalf of the Federal Government.

53

aa) The Federal Government considers the constitutional complaint to be inadmissible. […]

54

bb) It holds the constitutional complaint to be, in any case, unfounded. [...]

55-59

[...]

60

c) The summoned third party in the initial proceedings is of the opinion that the constitutional complaint does not have prospects of success.

61-62

[...]

63

2. By written submission of 18 December 2025, the complainant applied for a preliminary injunction to be issued. When assessed with due consideration, the complainant’s request is to be understood as seeking suspensive effect of his legal action against the decision of the Federal Office to be ordered for the duration of the proceedings before the Federal Constitutional Court.

64-66

[...]

67

3. On 8 January 2026, the complainant made further submissions after being notified of the content of the submitted statements and elaborated on the reasons for his constitutional complaint. [...]

68

4. On 9 January 2026, the Association of Jewish Lawyers in Germany (Jüdischer Juristenverband in Deutschland e.V.) submitted an Amicus Curiae Brief. It considers the constitutional complaint to be unfounded.

69

5. The chamber had access to the files of the initial proceedings.

VI. 

70

The constitutional complaint is not admitted for decision. The prerequisites of § 93a(2) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) are not met.

71

The legal questions raised by the constitutional complaint do not have general constitutional significance. They can be answered based on the previous case law of the Senate without difficulty (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 51, 268 <284 f.>; 90, 22 <24 f.>; 96, 245 <248>). Admission for decision is also not required in order to enforce the complainants’ rights indicated in § 90(1) of the Federal Constitutional Court Act, as the constitutional complaint does not have sufficient prospects of success (cf. BVerfGE 90, 22 <25 f.>; 96, 245 <250>; 108, 129 <136>).

72

1. Whether the constitutional complaint may already be inadmissible because the principal proceedings before the ordinary courts are still pending, and thus the requirement of subsidiarity under § 90(2) first sentence of the Federal Constitutional Court Act may not be met, need not be decided, because the constitutional complaint has no prospects of success for other reasons.

73

2. Neither the claim of a violation of Art. 19(4) first sentence of the Basic Law nor the claim of a violation of the duty of protection under Art. 2(2) first sentence of the Basic Law fulfil the substantiation requirements under § 23(1) second sentence and § 92 of the Federal Constitutional Court Act. The complainant did not sufficiently demonstrate that the ordinary courts, in considering whether he had legal standing under § 42(2) of the Code of Administrative Court Procedure, unreasonably restricted his right of access to the courts by failing to recognise the significance and scope of the duty of protection that may have existed vis-à-vis the complainant under Art. 2(2) second sentence of the Basic Law or by denying such a duty in an objectively arbitrary manner.

74

a) Art. 19(4) first sentence of the Basic Law grants recourse to the courts for any alleged violation of subjective rights resulting from acts or omissions of public authority. This does not merely guarantee the right to have recourse to the courts in a formal way, but also the effectiveness of legal protection. Citizens have a claim to judicial review being as effective as possible. Access to justice may not be unreasonably restricted in a way that cannot be objectively justified (cf. BVerfGE 35, 263 <274>; 40, 272 <274 f.>; 44, 302 <305>; 77, 275 <284>; 143, 216 <225 f. para. 21>; 149, 346 <363 para. 34>). However, Art. 19(4) first sentence of the Basic Law requires that a right for which legal protection must be granted already exists – it does not itself establish such rights (cf. BVerfGE 83, 182 <194 f.>). Thus, Art. 19(4) first sentence of the Basic Law grants legal recourse to the courts only to those individuals whose rights have been violated by an act or omission of public authority. In this regard, neither the violation of purely economic interests nor the violation of legal provisions benefitting the individual purely because they safeguard an interest of the general public, i.e., which only grant reflexive protection, suffices (cf. BVerfGE 31, 33 <39 f.>; 83, 182 <194>; 113, 273 <310>). Art. 19(4) first sentence of the Basic Law does not entail an individual right to an actio popularis or a general right to have the lawfulness of administrative activity reviewed – instead, it establishes a system of individual legal protection (Federal Constitutional Court, Order of the Third Chamber of the First Senate of 1 October 2008 - 1 BvR 2466/08 -, para. 22; Order of the Third Chamber of the First Senate of 10 June 2009 - 1 BvR 198/08 -, para. 13).

75

b) When assessed in light of these requirements, the challenged court decisions do not give rise to the possibility of a violation of Art. 19(4) first sentence in conjunction with Art. 2(2) first sentence of the Basic Law. The interpretation and application of ordinary law in individual cases – § 42(2) of the Code of Administrative Court Procedure and the relevant provisions of Foreign Trade and Payments Law in the case at hand – falls to the ordinary courts; the Federal Constitutional Court may only intervene if specific constitutional rights are violated. However, the fact that a decision objectively misapplied ordinary law does not necessarily amount to a violation of specific constitutional law. Rather, the courts must have failed to observe fundamental rights. The structuring of specific proceedings, the determination and evaluation of the underlying facts, the interpretation of the ordinary law and its application to the specific case may not be examined by the Federal Constitutional Court as long as there are no indications that they are based on a fundamentally incorrect conception of the relevance and scope of a fundamental right, in particular of the extent of its scope of protection, which has substantial impact in the examined case or which gives rise to a violation of Art. 3(1) of the Basic Law in its manifestation as a prohibition of arbitrariness (cf. BVerfGE 18, 85 <92 f.>; 30, 173 <196 f.>; 57, 250 <272>; 74, 102 <127>; 85, 248 <258>; 109, 38 <58 f.>; 110, 226 <270>).

76

c) The complainant failed to show a violation of specific fundamental rights. To the extent that the challenged decisions have denied admissibility of the legal action on the basis that the complainant lacked standing, they are clearly not based on an unreasonably narrow interpretation of the prerequisites of third party objection proceedings against administrative orders and of the requirements laid down in § 42(2) of the Code of Administrative Court Procedure concerning the admissibility of legal review by the administrative courts, even when taking into account the protection afforded by Art. 2(2) first sentence of the Basic Law.

77

When taking into account the extent and scope of a duty of protection that may arise from Art. 2(2) first sentence of the Basic Law (see aa) below), the complainant failed to sufficiently show that the considerations on which the challenged decisions based their interpretation of the relevant provisions of foreign trade and payments law and regarding the question of legal standing violated constitutional law (see bb) below).

78

aa) The fundamental right to life and physical integrity under Art. 2(2) first sentence in conjunction with Art. 1(2) of the Basic Law and the Basic Law’s principle of openness to international law entails a general mandate of protection with regard to international humanitarian law and the applicable human rights. Under certain circumstances, this general mandate of protection may give rise to a specific duty of protection directed at working towards ensuring that a foreign state complies with provisions of international humanitarian law that serve the protection of life and the applicable human rights; this duty of protection may also apply vis-à-vis non-German citizens living abroad (cf. Federal Constitutional Court, Judgment of 15 July 2025 - 2 BvR 508/21 -, paras. 82 ff. – Ramstein – Deployment of drones).

79

However, state organs are generally free to decide within their own responsibility how they choose to fulfil this general mandate and any specific duties of protection that may arise. Art. 2(2) first sentence of the Basic Law, Art. 1(2) of the Basic Law and the Basic Law’s principle of openness to international law do not prescribe specific steps or measures that must be taken with regard to fulfilling the general mandate of protection or a specific duty of protection that exists with regard to the protection of human rights and international humanitarian law. Rather, in fulfilling such duties of protection, the legislator and the executive are afforded a wide margin of assessment, appreciation and design, which also leaves room to take into account conflicting public and private interests and which must be respected by the Federal Constitutional Court (cf. BVerfGE 77, 170 <214 f.>; 77, 381 <405>; 79, 174 <202>; 88, 203 <262>; 96, 56 <64>; 106, 166 <177>; 121, 317 <356>; 142, 313 <337 para. 70>). This broad leeway to design is subject to only limited review by the courts, the extent of which depends on the specific nature of the matter in question, the legislator’s ability to make a sufficiently certain assessment and the significance of the legal interests in question (cf. BVerfGE 56, 54 <80 f.>; 77, 170 <215>; 85, 191 <212>; 92, 26 <46>; 157, 30 <114 para. 152> – Climate change).

80

Furthermore, in foreign policy matters, the Basic Law grants the Federal Government wide latitude for autonomous decision-making in the exercise of its functions. To this extent, both the role of Parliament as the legislator and of the courts as the judicial authority are limited, ensuring that the Federal Republic of Germany’s ability to act in foreign and security policy matters is not restricted in a way that would constitute a division of state powers not appropriate to the respective state functions (cf. BVerfGE 68, 1 <87 f.>; 90, 286 <363 f.>; 104, 151 <207>; 118, 244 <259>; 137, 185 <235 para. 138>; 152, 8 <23 f.> – Operation Counter Daesh). The goal of safeguarding the Federal Republic of Germany’s capacity to act and form coalitions in the context of foreign policy and of ensuring its participation in international cooperation is guaranteed by the constitution. The Federal Republic of Germany’s capacity to form coalitions is a constitutional interest which must also be taken into account when specifying potential extraterritorial duties of protection (cf. Federal Constitutional Court, Judgment of 15 July 2025 - 2 BvR 508/21 -, para. 105). Thus, it is the state bodies of the Federation competent for foreign affairs and security policy who are generally tasked with deciding how Germany’s duty of protection vis-à-vis foreign states or other actors is satisfied (cf. BVerfGE 66, 39 <60 f.>; 143, 101 <153 para. 170>; Federal Constitutional Court, Judgment of 15 July 2025 - 2 BvR 508/21 -, para. 110; Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 15 March 2018 - 2 BvR 1371/13 -, para. 46).

81

bb) Taking these standards into account, it cannot be concluded from the complainant’s submissions that the considerations in the challenged court decisions with regard to the question of standing under § 42(2) of the Code of Administrative Court Procedure violated specific constitutional law.

82

The interpretation of ordinary law by the ordinary courts, according to which the relevant provisions in § 8(1) of the Foreign Trade and Payment Act and § 8(1) of the Foreign Trade and Payments Ordinance, each in conjunction with § 4(1) of the Foreign Trade and Payments Act, do not convey protection on third parties, is not objectionable under constitutional law.

83

First, there is not even a rudimentary indication of a violation of the general guarantee of equality under Art. 3(1) of the Basic Law in its manifestation as a general prohibition of arbitrariness – at which the complainant hinted implicitly. The ordinary courts have made a detailed assessment of the wording, aim and legislative history of the provisions in § 8(1) of the Foreign Trade and Payment Act and § 8(1) of the Foreign Trade and Payments Ordinance, each in conjunction with § 4(1) of the Foreign Trade and Payments Act. Their conclusion, according to which the provisions in § 8(1) of the Foreign Trade and Payments Act and § 8(1) of the Foreign Trade and Payments Ordinance, each in conjunction with § 4(1) of the Foreign Trade and Payments Act, do not convey protection on third parties, are in line with the prevailing view in legal scholarship ([...]).

84

The constitutional standards with regard to the right to life and physical integrity (Art. 2(2) first sentence of the Basic law) as established by the Federal Constitutional Court and as applied by the Higher Administrative Court do not require that the provisions in § 8(1) of the Foreign Trade and Payments Act and § 8(1) of the Foreign Trade and Payments Ordinance, each in conjunction with § 4(1) of the Foreign Trade and Payments Act, are interpreted so as to afford protection to third parties and standing under § 42(2) of the Code of Administrative Court Procedure (see (1) below). Furthermore, the complainant has failed to sufficiently show that fundamental rights demanded an affirmation of standing in the present case because, as he claims, revoking the challenged export licenses was the only way for the state authorities to comply with their potential duty of protection (see (2) below).

85

(1) In recognition of their general mandate of protection with regard to human rights and international humanitarian law, the legislator and the executive have created a protective legal framework for armament exports, which takes human rights and international humanitarian law into account (see (a) below). The complainant failed to show that a requirement could be derived from the Constitution to find that this framework conveys third party protection against licenses granted for the export of military equipment (see (b) below).

86

(a) With regard to armament exports, the legislator has established comprehensive provisions in the War Weapons Control Act (Gesetz über die Kontrolle von Kriegswaffen, Kriegswaffenkontrollgesetz – KrWaffKontrG), the Foreign Trade and Payments Act in conjunction with the Foreign Trade and Payments Ordinance and the Act on the Arms Trade Treaty (see (aa) below). In addition, the Federal Republic of Germany is bound by the standards set by European Union law in Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing the control of exports of military technology and equipment (see (bb) below). Furthermore, the Federal Government has adopted Political Principles for the Export of War Weapons and Other Military Equipment, which provide guidance for the exercise of discretion in the field of armament export law, and support other forms of international cooperation for the control of armament exports (see (cc) below).

87

(aa) The legal regime for the control of the export of weapons designed for warfare is enshrined in the German Constitution. According to Art. 26(2) first sentence of the Basic Law, weapons designed for warfare may be manufactured, transported or placed on the market only with the permission of the Federal Government. Pursuant to Art. 26(2) second sentence, details shall be regulated by a federal law. According to § 6(1) of the corresponding implementation act (War Weapons Control Act, Federal Law Gazette, Bundesgesetzblatt – BGBl I 1990, p. 2506), no entitlement to be granted a license to manufacture, transport or place on the market weapons designed for warfare exists. Pursuant to § 6(3) no. 2 of the War Weapons Control Act, no license shall be granted if there is reason to assume that granting the license would violate the obligations of the Federal Republic of Germany under public international law or endanger their fulfilment. Weapons designed for warfare within the meaning of this provision comprise the items, substances and organisms listed in the War Weapons List provided as an Annex to the Act (§ 1(1) and (2) War Weapons Control Act). These are items, substances and organisms intended to be used in warfare.

88

The placing on the market of other military equipment – which is at issue in the present case – is regulated by the Foreign Trade and Payments Act as amended in 2013 (BGBl. I p. 1482) in conjunction with the Foreign Trade and Payments Ordinance (BGBl. I p. 2865). Unlike the export of weapons designed for warfare, the export of goods regulated by the Foreign Trade and Payments Act is, in principle, not restricted. It is subject to licensing proceedings only if prescribed by the Foreign Trade and Payments Act or the Foreign Trade and Payments Ordinance (§ 1(1) Foreign Trade and Payments Act), in particular if there is a danger to the legal interests identified in § 4(1) of the Foreign Trade and Payments Act. § 4 (1) nos. 1, 2 and 3 of the Foreign Trade and Payments Act authorise the government to enact an ordinance by which actions in the field of foreign trade and payments transactions may be restricted in order to guarantee the essential security interests of the Federal Republic of Germany, to prevent a disturbance of the peaceful coexistence of nations or to avert a substantial disturbance to the foreign relations of the Federal Republic of Germany.

89

The Foreign Trade and Payments Ordinance enacted, inter alia, on this basis prescribes in its § 8(1) no. 1 an obligation to obtain license for the export of goods listed in Part I, Section A of Annex 1 to the Foreign Trade and Payments Ordinance (so-called export list). Under Part I, Section A no. 0006 a), this applies, among others, to parts of land vehicles which have been specifically constructed or adapted for military purposes, e.g. tanks and armoured vehicles. In view of the substantive prerequisites for granting licenses to export goods included in the export list, § 8(1) of the Foreign Trade and Payments Act prescribes that the license must be granted if the purpose of the provision – here the protection of the essential security interests of the Federal Republic of Germany, as well as the prevention of a disturbance of the peaceful coexistence of nations or the foreign relations of the Federal Republic of Germany – is not endangered or endangered only to a minor degree. In other cases, the license may be issued if the national economic interest in the transaction or action outweighs any impairment of these purposes.

90

Additionally, Art. 7(3), 7(1) letter b nos. i. and ii. of the Arms Trade Treaty of 2 April 2013 prescribe that the export of weapons and military equipment shall not be authorised if there is, inter alia, an overriding risk that the exported goods could be used to commit or facilitate a serious violation of international humanitarian law or of international human rights law and if no measures can be undertaken to mitigate those risks (cf. Art. 7(2)). The treaty, which was ratified by the Federal Republic of Germany (cf. Act on the Arms Trade Treaty of 2 April 2013 (Gesetz zu dem Vertrag vom 2. April 2013 über den Waffenhandel), BGBl II 2013, no. 31) entered into force on 24 December 2014.

91

As is apparent from the legislative materials, it was the explicit intention of the legislator to address the risks to international humanitarian law and international human rights inherent in armament exports when enacting the provisions of the Foreign Trade and Payments Act and the Act Implementing the Arms Trade Treaty (cf. BTDrucks 17/11127, pp. 21 f.; BTDrucks 17/13708, p. 1). At the same time, the legislator meant to provide the executive with the necessary instruments to react adequately and with the required flexibility to the manifold and complex array of cases of foreign trade and payments transactions by authorising the executive to issue ordinances under § 4(1) of the Foreign Trade and Payments Act (cf. BTDrucks 17/11127, p. 21). In the field of armament exports, this authorisation provides the Federal Government with the necessary leeway in foreign and security policy matters (cf. also § 12(1) Foreign Trade and Payments Act).

92

(bb) In addition to the domestic provisions on armament exports, the Federal Republic of Germany has entered into corresponding obligations under European Union law. Council Common Position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment of 8 December 2008 (2008 O.J. (L 335), 99 of 13 December 2008) binds the member states of the European Union pursuant to Art. 29 of the Treaty on European Union. It lays down eight criteria on which member states must base their decision on granting export licenses. This includes, in particular, the respect for human rights and international humanitarian law in the recipient country. Export licenses must be denied, inter alia, if there is a clear risk that the exported goods might be used to commit serious violations of international humanitarian law (Criterion Two). The Council Common Position is complemented by the Common Military List of the European Union, which contains a detailed catalogue of the military equipment to which the obligation to obtain an export license applies (2000 O.J. (C 85), 1 of 13 March 2020, p. 1).

93

(cc) With the Political Principles (Political Principles of the Federal Government for the Export of War Weapons and Other Military Equipment (Politische Grundsätze der Bundesregierung für den Export von Kriegswaffen und sonstigen Rüstungsgütern) in the version of 26 June 2019, Annex 1a to [...] BTDrucks 21/1450, pp. 46 ff.) the Federal Government has issued guidelines meant to inform the exercise of discretion that may be required when deciding on issuing export licenses. They prescribe that the human rights situation in the recipient country must be included as a criterion of particular importance in the balancing of interests when deciding on granting a license for armament exports. In assessing the human rights situation, the determinations of the European Union, the Council of Europe, the Organisation for Security and Cooperation in Europe and the United Nations as well as the reports of international human rights organisations are to be taken into account. The guidelines further provide that export licenses should generally not be granted if there is ‘sufficient evidence’ (hinreichender Verdacht) that the military equipment in question will be misused to commit persistent and systematic human rights violations in the recipient country (cf. Political Principles, loc. cit., p. 47). Additionally, the special interest of the Federal Government in the continued ability of the German defence technology sector to cooperate in an EU and NATO context must be taken into account when granting export licenses. Legitimate security interests of third countries – such as the exercise of the right to self-defence under Art. 51 of the Charta of the United Nations– may also be taken into account, as may global security considerations, e.g. protecting against terrorist threats or securing maritime shipping routes. The conduct of the recipient country vis-à-vis the international community and the adherence to international obligations – international humanitarian law in particular – constitute further significant aspects in the balancing of interests (Political Principles, loc. cit., p. 50).

94

On an international level, the Federal Government regularly reports to the United Nations Register of Conventional Arms and the United Nations Standardised Reporting Instrument for Military Expenditures (cf. [...] BTDrucks 21/1450, p. 19). Additionally, Germany is one of the founding members of the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, a political agreement between 42 states that aims to strengthen international cooperation in the field of armament export control (cf. [...] BTDrucks 21/1450, pp. 18 f.).

95

These comprehensive measures show that both the legislator and the executive perceive the export of weapons designed for warfare and other military equipment as a potentially dangerous activity that may affect compliance with international obligations – international humanitarian law and international human rights in particular – as well as the security policy interests and policy interests related to Germany’s military alliances. Through the various legal provisions and political initiatives, the legislator and the executive – to whom the mandate of protection with regard to human rights and international humanitarian law is addressed – have established an overall framework intended to effectively prevent the development of a dangerous situation in the context of the export of arms and military equipment that could cause the general mandate for the protection of human rights and international humanitarian law to give rise to a specific duty of protection.

96

(b) § 8(1) of the Foreign Trade and Payments Act and § 8(1) of the Foreign Trade and Payments Ordinance, each in conjunction with § 4(1) of the Foreign Trade and Payments Act, just as Art. 7(1) and 7(3) of the Arms Trade Treaty and Council Common Position 2008/944/CFSP, dictate that, when assessing an application for licenses for armament exports, it must be examined whether the export of the military equipment subject to the licensing procedure entails risks for compliance with international humanitarian law and international human rights. The license must be denied if such a risk is sufficiently high.

97

The constitution does not require that this extensive protective scheme is generally extended so as to grant legal standing to third parties that would enable them to institute proceedings against export licenses that have already been granted. Due to the wide margin of assessment, appreciation and design afforded to public authority, the general mandate of protection for human rights and international humanitarian law generally does not require granting third parties legal standing to individually challenge specific measures taken in the area of armament and security policy.

98

As long as the general mandate of protection for human rights and international humanitarian law has not given rise to a specific duty of protection, it does not establish a multiparty legal relationship in the field of armament export law which would benefit individuals residing abroad and would require the provisions of foreign trade and payments law to be given a subjective element. A legal regime that is structured in a purely objective way and thus does not grant legal standing to third parties can be sufficient to fulfil the mandate of protection, if potential risks to human rights and the adherence to international humanitarian law have been appropriately accounted for – as is the case here.

99

The applicable provisions of EU and public international law – the Council Common Position 2008/944/CFSP and the Arms Trade Treaty – also do not include any obligations to the effect that the member states or the states party to the treaty would be required to lay down in their respective national law a third party right for potentially affected individuals resident abroad to challenge decisions concerning armament exports.

100

In the – as far as discernible – only decision on the question of possible obligations of the state parties to the European Convention on Human Rights regarding the control of the export of military equipment, the European Commission of Human Rights held that the Convention did not grant individuals a right to compel the regulation of armament exports and that the deployment of weapons by a third state, potentially to the detriment of legal interests, was not attributable to the exporting state – even if the exporting state had not put in place an adequate export control system (European Commission of Human Rights, Tugar v. Italy, Decision of 18 October 1995, no. 22869/93).

101

(2) Moreover, the complainant did not sufficiently demonstrate that the ordinary courts failed to comply with constitutional standards when they denied the complainant’s third-party-standing to challenge the specific export licences outside of the legal framework on armament exports and directly based on a duty of protection.

102

Whether the general mandate of protection for human rights and international humanitarian law even gave rise to a specific duty of protection in the present case, because – as the complainant claims – the Israeli military offensive posed a serious risk of systematic violations of public international law and a corresponding link existed between the alleged threat to his legal interests and the actions of the Federal Republic of Germany in the form of granting the export licenses, need not be decided.

103

In its decision of 19 September 2025, the Higher Administrative Court placed particular emphasis on the fact that public authority enjoyed a wide margin of assessment, appreciation and design and was generally free to decide on how to address potential risks for compliance with public international law that could arise from the use of exported goods. Whereas individuals had the option to request state authorities to refrain from unduly interfering with their constitutional rights, a duty of protection did not normally allow individuals to request state authorities to take specific measures. Consequently, if the state’s duty of protection did not mandate a specific measure – like the revocation of the export licenses in the present case –, it could not confer third-party-standing in administrative court proceedings either.

104

When taking into account the extent and scope of a potential duty of protection (see (a) below), the complainant failed to show in a sufficiently substantiated manner that the specific considerations of the ordinary courts are based on a fundamentally incorrect understanding of the significance and scope of a duty of protection that may arise from Art. 2(2) first sentence of the Basic Law (see (b) below).

105

(a) Even in a domestic context, the state authorities only violate their duties of protection if they do not take any measures, if the measures taken are obviously unsuitable or manifestly inadequate, if they fall considerably short of the aim of protection (cf. BVerfGE 56, 54 <81>; 77, 170 <214 f.>; 77, 381 <405>; 79, 174 <202>; 92, 26 <46>; 125, 39 <78 f.>; 142, 313 <337 f. para. 70>; 151, 202 <299 para. 148> – European Banking Union; 157, 30 <114 para. 152>; 163, 363 <430 f. para 129> – EPO) or if they are based on an insufficient determination of the facts or an untenable assessment thereof (cf. BVerfGE 61, 82 <114 f.>; 84, 34 <50>; 88, 203 <254>; 95, 1 <15>).

106

Consequently, in domestic cases, too, under a constitutional duty of protection, individuals may only request public authority to provide safeguards to fundamental rights in a way that is not manifestly unsuitable or inherently inadequate. Yet, a duty of protection generally does not give rise to specific actionable rights enforceable by individuals before the courts (cf. Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 15 January 2020 - 2 BvR 1763/16 -, para. 35). It is only under very exceptional circumstances that the latitude afforded to public authority is limited so that only one specific measure can fulfil the duty of protection (cf. BVerfGE 46, 160 <164 f.>; 77, 170 <215>). If the complainant alleges that public authority can fulfil its duty of protection only by taking one specific measure, he would have to conclusively present this fact and indicate the specific measure to be taken (cf. BVerfGE 77, 170 <215>; Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 15 March 2018 - 2 BvR 1371/13 -, para. 32). Furthermore, the complainant would have to demonstrate how these measures would effectively improve the situation (cf. Federal Constitutional Court, Order of the First Chamber of the First Senate of 11 January 2016 - 1 BvR 2980/14 -, paras. 19 f.; Order of the Second Chamber of the First Senate of 16 November 2023 - 1 BvR 607/22 -, para. 14).

107

In an extraterritorial context, further restrictions may arise. Due to the limitations placed on the exercise of German sovereign power by public international law, the state cannot exercise the same means of protection with regard to individuals resident in foreign countries as it can in a domestic context (cf. BVerfGE 157, 30 <127 para. 178>). Even in cases in which the general mandate to protect human rights and international humanitarian law has given rise to a specific duty of protection, the scope of such a duty vis-à-vis individuals resident in foreign countries does not necessarily have to be the same as that of the duty towards individuals who live within Germany (cf. BVerfGE 157, 30 <126 para. 176>; Federal Constitutional Court, Judgment of 15 July 2025 - 2 BvR 508/21 -, para. 110). Its content may, under certain circumstances, require modification and differentiation (cf. BVerfGE 100, 313 <363>; 154, 152, Headnote 1 – Surveillance of foreign telecommunications by the Federal Intelligence Service; 157, 30 <126 para. 176>; Federal Constitutional Court, Judgment of 15 July 2025 - 2 BvR 508/21 -, para. 110). This may even include restricting the application of some of the aforementioned criteria that would be applicable to the protective measures in domestic cases – for example whether it is acceptable that they may fall considerably short of the aim of protection – or not applying them at all (cf. BVerfGE 157, 30 <129 para. 181>).

108

(b) Because the complainant in the present case specifically petitioned the court to revoke the export licenses of 11 and 16 October 2024 granted to the summoned third party in the initial proceedings, he had to show that the ordinary courts had fundamentally failed to recognise that the only way in which public authority could fulfil a possible duty of protection – even when taking into account that the scope of the duty of protection may have been limited due to the extraterritorial nature of the case – was to revoke the challenged export licenses.

109

The constitutional complaint does not satisfy this requirement. The complainant has not demonstrated a fundamental failure by the ordinary courts to recognise the extent and scope of the duty of protection when determining the facts of the case and interpreting and applying the law.

110

In a way that is unobjectionable under constitutional law, the ordinary courts determined that the legislator and the executive did not fail to take action, but have created a general framework of protection in order to effectively address the risks of armament exports for human rights and to ensure compliance with international humanitarian law. The same applies to their finding that the legislator and the executive took specific measures with regard to the Israeli military offensive and the catastrophic humanitarian situation in Gaza.

111

The Federal Government is in constant dialogue with the Israeli Government, both bilaterally and as a member of the European Union. It works towards ensuring compliance with international humanitarian law and international human rights provisions and provides extensive humanitarian aid. The Federal Government has not only taken general protective measures, but has also adapted its practice of granting licenses to export weapons designed for warfare and military equipment intended to remain in Israel throughout the course of the continued Israeli military offensive in Gaza. It becomes apparent from the reports of the Federal Government on armament exports (see paras. 14 through 16 above) that the Federal Government has recently not granted any licenses for the export of goods included in the war weapons list intended to remain in Israel and that the export of other military equipment, after an initial increase directly after the Hamas-led terrorist attacks in the autumn of 2023, has also decreased considerably. During certain periods, the Government suspended the assessment of applications for export licenses almost entirely and obtained assurances from Israel that weapons designed for warfare and military equipment would only be used in a manner compatible with international humanitarian law. Therefore, it is not evident that the Federal Government, in its practice of granting export licenses, negligently and arbitrarily turns a blind eye to potential risks to human rights.

112

The ordinary courts have further found that the goods forming the subject matter of the export licenses challenged by the complainant were not immediately deployable war weapons, but rather other military equipment listed on the export list. They held that there were no certain indications as to when and where these goods would be processed further, what such processing would entail and which additional components would be necessary to enable the use of the exported goods. Furthermore, the courts held that it remained unclear when and where the vehicles into which the exported goods might be installed would be deployed, what the purpose of such a deployment would be and how it could potentially lead to risks directly impacting the complainant. The deployment of the goods covered by the export licenses was contingent on numerous intermediate steps and the specific mode of deployment depended solely on decisions made by the Israeli armed forces.

113

In light of this – and as the ordinary courts have established in a manner not objectionable under constitutional law – the complainant did not sufficiently address the requirements for the very specific circumstances under which a potential duty of protection may be narrowed down in such a way as to give rise to a claim that a specific measure must be taken.

114

While the complainant extensively addresses the criticism raised against the conduct of Israel and elaborates in great detail on the grave suffering of the civilian population in Gaza, he fails to address in a sufficiently differentiated manner the wide margin of assessment, appreciation and design granted to public authority and the standards of review that must be applied to it by the courts in light of the principle of the separation of powers. He does not present a detailed discussion of the fact that the scope of a duty of protection vis-à-vis foreign nationals resident abroad is not necessarily the same as that of the duty of protection towards individuals living in Germany. He further fails to sufficiently take into account that the Federal Government retains a margin for autonomous decision-making in the exercise of its functions in foreign policy matters, within which, when making decisions on the control of armament exports, it must also take into account other fundamental rights positions, such as of persons benefitting from export licenses and is free to consider, in its balancing decision, the foreign and security policy interests including the policy interests related to military alliances of the Federal Republic of Germany and its military allies (cf. Art. 24(2) of the Basic Law). The decision on how these interests should be balanced with regard to armament exports can therefore include a large number of relevant criteria, which may need to be reconciled with each other.

115

As the constitutional complaint is not admitted for decision, the application for a preliminary injunction becomes moot, § 40(3) of the Rules of Procedure of the Federal Constitutional Court (Geschäftsordnung des Bundesverfassungsgerichts – GOBVerfG).

116

In accordance with § 93d(1) third sentence of the Federal Constitutional Court Act, no further reasons are given.

117

This decision cannot be appealed.