Taylor, G --- "Executive privilege in response to a demand for documents by the legislature in Germany" [2010] UMonashLRS 13

Last Updated: 23 November 2011

EXECUTIVE PRIVILEGE IN RESPONSE TO A DEMAND FOR DOCUMENTS BY THE LEGISLATURE IN GERMANY[*]
This is the pre-peer reviewed version of the following article: Taylor, G., 'Executive privilege in response to a demand for documents by the legislature in Germany' (2010) 21 King's Law Journal 399, which has been published in final form at: http://www.ingentaconnect.com/content/hart/klj/2010/00000021/00000002/art00010.

1. Introduction

In jurisdictions in which the legislature enjoys the power to call for documents held by the executive, conflict is pre-programmed. In the USA there is the famous decision in United States v Nixon[1] and several later controversial cases.[2] In Australia, too, there have been numerous cases involving a refusal by the executive to hand over documents required by Parliament.[3] In June 2009 the German Federal Constitutional Court handed down a decision[4] on the same topic.[5] It is an inherently interesting decision, involving as it does a parliamentary investigative committee set up to examine the response to the attacks of 11 September 2001 and also the Iraq war and the international fight against terrorism so far as they involved the German government and German nationals. Furthermore, the decision emanates from a jurisdiction which is unencumbered by the common law’s ideas of executive privilege in litigation, which in common law countries do tend to confuse the matter. This note is devoted to analysing the German court’s decision.

2. Background

Article 44 of the German Basic Law provides as follows:[6]

Article 44

[Committees of inquiry]

(1) The Bundestag shall have the right, and on the motion of one quarter of its Members the duty, to establish a committee of inquiry, which shall take the requisite evidence at public hearings. The public may be excluded.

(2) The rules of criminal procedure shall apply mutatis mutandis to the taking of evidence. The privacy of correspondence, posts and telecommunications shall not be affected.

(3) Courts and administrative authorities shall be required to provide legal and administrative assistance.

(4) The decisions of committees of inquiry shall not be subject to judicial review. The courts shall be free to evaluate and rule upon the facts that were the subject of the investigation.

It is worth noting, first of all, the fact that a ‘qualified minority’ of MPs—one-quarter—is all that it takes for such a committee of inquiry to be established. The excellent idea of putting this power in the hands of a sufficiently large minority as well as the majority was originally conceived by Max Weber.[7] If the legislature’s right to hold inquiries is to be worth anything, this is an essential provision in a system such as the German one in which there is only one elected House of Parliament and the government is formed by the majority of members of that House. The power to set up inquiries is thus available to the opposition as well as to the government. (In Austria, where a majority of members is required to set up an investigatory committee, such committees have naturally enough been little used, and it would be desirable if the German rule were to make its way to Austria.)[8] The German law of 19 June 2001, entitled An Act Governing the Law relating to Investigatory Committees of the German Bundestag, further permits a committee to make an order calling for evidence, including both witnesses and written evidence such as the executive’s files, if one-quarter of the members of the committee—which must have a make-up that reflects the party composition of the Bundestag itself—requires it.[9]

Pursuant to these provisions, the Bundestag established in April 2006 an investigatory committee with a very wide-ranging remit to look into the matters mentioned in the introduction. At this point there were three opposition parties in the Bundestag: the Free Democrats, a party of economic liberals; the Greens; and a party which is pleased to describe itself simply as ‘the Left’, which consists of the old East German communists and some former Social Democrats who have broken away from that party. Those three parliamentary parties, along with three members of the investigatory committee itself, were the plaintiffs in the action before the Federal Constitutional Court. The government, which was the defendant in the action, was at this time the so-called ‘Grand Coalition’ and consisted of the two largest parties, the centre-right Christian Democrats and the Social Democrats.

An official English translation of the committee’s terms of reference was produced and can be viewed online.[10] In brief, the committee was to investigate matters such as whether the German government or German territory were involved in secret prisons or abductions or transport of prisoners; the fate of German citizens at American hands; the provision of intelligence by German agencies to foreign powers; the state of knowledge of the German government regarding various matters; German intelligence operations in Iraq and the monitoring of journalists by the intelligence service; and whether any breaches of law occurred or recommendations should be made for the tightening of the law in the future.

As might be expected, government witnesses before the committee repeatedly refused to answer questions on the grounds of what we in the English-speaking world should call executive privilege, and files sent for by the committee were either not produced at all or were produced only in part. The plaintiffs challenged this before the Court, which decided that many of these refusals were unjustified under Article 44. This was so even having regard to the restrictions on its apparently unlimited terms which emerge from a closer look at its provisions and as a result of its interpretation within the whole constitutional system, which produce something like executive privilege even though no such concept is to be found in the Article itself. The interest of the decision lies not so much in the detail of the individual cases in which this occurred and was found unconstitutional, but in the Court’s reasoning and the principles it propounded.

3. The Court’s reasoning

The Court mentioned five circumstances in which the government could justify a refusal to provide information:

• where a demand falls outside the terms of reference;
• cases in which the demand is inconsistent with the doctrine of separation of powers;
• cases in which the welfare of the state demands the withholding of information;
• cases involving an infringement of the rights guaranteed by the Basic Law;
• where the power to send for documents and witnesses is being abused, for example simply as a means of delay.[11]
  

The Court said little of note on the first topic, which involves an obvious restriction,[12] and nothing on the fifth, which did not arise on the facts of the case. In what follows, therefore, I concentrate on the second, third and fourth topics. I shall then turn to the duty to justify the withholding of information which the Court also identified and which was the basis for the plaintiffs’ success in the case.

a. Separation of powers

The German Basic Law clearly gives effect to the doctrine of separation of powers.[13] At the same time, the fact that the executive is formed from a majority of the lower House of the legislature means, of course, that the separation between those two branches[14] cannot be as definite as it is in, for example, the USA. This means that the executive’s claim to a separate realm must be weaker than in the USA, where the executive does not depend for its maintenance in office on the will of the executive.[15] Nevertheless, even in the German system there is still obviously some distinction between legislature and executive and some area of freedom is required within which the executive must be allowed to govern without constant interference from and the revelation of its secrets and deliberations the legislature.

Building on its earlier case law, these considerations led the Court to the conclusion that the executive was entitled to a ‘core area of executive responsibility, which includes the functions of initiating action, deliberation and acting and which is in principle not open to examination by the legislature’s investigatory committees’.[16] This included not only discussions at Cabinet level, but also the preparatory work behind Cabinet and ministerial decisions. What had to be avoided under the principle of separation of powers, said the Court, was co-government by the legislature. That meant, in turn, that investigatory committees could not seek information about matters currently being considered; they were confined, so to speak, to already closed files, to the investigation of matters that had been the subject of a decision.

Even in relation to concluded matters, limits still existed in order to prevent the spectre of a co-governing legislature and the disappearance of the executive’s core functions. However, at this point the Court took a step back and mentioned at length the need for Parliament also to be able to conduct effective investigations. In cases involving closed files, therefore, there was no complete prohibition on parliamentary demands for information; rather, it was necessary to balance the legitimate interests of executive and legislature. The Court mentioned only two matters of importance in conducting this process of balancing: first, one had to consider how close the information sought was to the actual decision-making processes of government; discussions in Cabinet would receive special protection. Secondly, the parliamentary interest in receiving information would be particularly great if there were possible breaches of the law or similar abuses in the acts of the executive.[17] Both these points were closely related to the case in hand.

The Court was quite clear on the point that, once a decision has been taken, information can often be demanded by the legislature even if it concerns the decision-making processes of the government. In so doing it resolved a dispute in the case law between State constitutional courts, one of which—the Bavarian[18]—appeared on one interpretation of its judgment to have held that high-level government decision-making processes were closed to parliamentary scrutiny even after the decision was taken. This was denied by the State of Bremen’s Constitutional Court.[19] It is now clear that the latter was right and that a balancing process must be undertaken in these cases.

b. The welfare of the state

The phrase ‘welfare of the state’ is taken from § 96 of the Code of Criminal Procedure, made applicable to Parliament by the first sentence of Article 44(2) quoted above. The principle of state welfare states that information does not have to be divulged when doing so would harm the welfare of the state (including both the federal and State governments). The principle is used to protect state secrets.

Previous case law[20] had left it unclear whether this concept was merely an instance of the restrictions imposed by the separation of powers or a separate idea of its own. The Court’s decision solves this puzzle and makes it clear that the two concepts are in fact separate grounds upon which access can be refused.[21]

The Court, however, took seriously, as indeed it is directed to do by Article 44(2) (‘mutatis mutandis’), the differences between withholding documents in an ordinary criminal trial and when a demand by the legislature for state papers is made. The legislature, it pointed out, is part of the state; furthermore, it is ‘as a rule’ not lawful to keep information secret from Parliament if effective measures to prevent leaks can be taken. The fact that leaks might nevertheless still occur does not, the Court held, nullify this consideration given that leaks from the executive have been known to occur as well. Therefore, it is only ‘under very special circumstances’ that the principle of the welfare of the state can be used to deny information to the legislature.[22] In particular, it is not the case that contacts with foreign intelligence agencies are necessarily exempted from the reach of an investigatory committee.[23]

c. Basic rights

In relation to clashes between the basic rights and parliamentary requirements for information, the Court had resort to its tried-and-tested method of requiring a balancing between the right or rights which are alleged to be in peril and the needs of the Parliament. In so doing, it pointed out, it might be helpful if (as Article 44(1) expressly allows) the public were excluded from a committee’s proceedings in order to protect sensitive personal information or other measures to maintain secrecy were taken.[24] The aim should be that both the basic right and the parliamentary investigation each receive as much effect as can possibly be given to them.[25]

The special mention of the guaranteed right to secrecy of communication in Article 44 prevented committees from ordering the seizure of mail or the tapping of telephones.[26] It did not, however, prevent the committee from seeking files if they contained material which the executive had obtained in violation of the right of secrecy of communications applicable to it (Article 10 of the Basic Law). In criminal trials, the Court said, deterrence of the executive might require the suppression of illegally obtained information; the reverse was the case when such information is sought by a parliamentary committee for the purposes of revealing illegalities or abuses. This was obviously very likely to be so when the whole point of a committee was to investigate whether such illegalities and abuses had occurred.[27]

d. The duty to justify

The Court broke new ground in its formulation of a duty to justify the withholding of information. Such a duty had never been formulated previously. The reason for this is that the aforementioned Act Governing the Law relating to Investigatory Committees of the German Bundestag had been passed only in June 2001, and this was the first case to have arisen under it. §§ 18(2) and 23(2) of that law are the formal basis for the duty. They apply respectively to demands for material such as files and to the examination of witnesses, and each requires reasons to be given when access is refused.

However, this appears at first sight to be a weakness of the newly formulated duty. The Act is a simple statute and does not have constitutional status. The one-quarter minority which can set up a committee cannot prevent a change to the statute. It can be changed by a majority of the Bundestag at any time. One wonders whether this is what is referred to in the coalition agreement between the Christian Democrats and the Free Democrats entered into after the elections of September 2009. Given that the latter were one of the plaintiffs in the case under discussion, having been in opposition at the time, it may be hoped not. At all events, the coalition agreement states, rather wordily and certainly very unclearly, merely that ‘we have reached agreement on taking in hand the consideration of a reform of’[28] the Law of June 2001.

Perhaps the view that the Bundestag could abolish the duty it has created by statute is an unduly pessimistic and formalist one, however. The Court’s order and several crucial passages of its judgment[29] state that the lack of information given by the government about the reasons for its refusal offend not the statute of June 2001, but rather Article 44 itself. Is the Court trying to tell us that the obligation to give reasons in case of refusal set out in the statute are to be regarded as inevitable concomitants of the right to set up investigatory committees under Article 44, so that that obligation would survive the statute’s repeal? This may well be so. At another point in its judgment,[30] the Court indicated that the giving of reasons was necessary to enable a balancing exercise to be carried out between, for example, the legislature’s right to information and the executive’s power to govern, a process which does not have a statutory source but is, rather, based on the constitutional doctrine of separation of powers.

That may be a question to be resolved in the future. For the moment, the Court insists on there being a serious attempt to provide reasons, not merely a reference to one of the headings under which access can be refused. The Court gave examples: if the welfare of the state were the ground claimed, for example, the government would need to give ‘detailed and complete’ information to the committee, perhaps in a closed session, about the need for secrecy; if a claim were made that information were being sought from the core area of responsibility of the executive, it would be necessary to state in detail exactly why the information sought fell into that area and if necessary why it could not be presented to the legislature even after deliberations on the matter concerned had been closed.[31] The obligation could not as a rule be discharged by simply providing the withheld information to the chair of the committee, an expedient which was to be resorted to only after withholding had been adequately justified and if there were still questions from the committee about whether the withholding was correct. The Court took time to add that this was particularly so in relation to this committee given that its chair and deputy chair both belonged to government parties.[32]

Having thus identified the obligation to give reasons, the Court was easily able to hold that it had not been discharged. The witnesses who had refused to give evidence and the explanations accompanying the refusal of access, or full access, to files had done little more than quote the headings under which refusal may be sustained. They had not given any information about why each case fell under those headings.[33] To use an analogy:[34] the legislature had received merely a headline, when it should have received a detailed report.

4. Commentary

When a demand for files is made, it often turns out to be the case that the executive has all the trump cards. In the case under discussion, too, it was unfortunate that a rather hollow victory was achieved by the legislature. The Court’s judgment was handed down on the day before the last sitting of the investigative committee. An election was scheduled (and did occur) only a few months later, at the end of September 2009. A motion was nevertheless introduced into the Bundestag before the election by the Free Democrats calling upon the government to respect the Court’s judgment and hand over the files[35] (a somewhat cheeky request given that compliance with it would, needless to say, have gone beyond what the Court actually required). The motion was rejected in late August by the majority coalition government and also, surprisingly, by the ‘Left’ party.[36] In a debate on the Court’s decision the Free Democrat speaker rather hopefully called upon the government to surrender the files voluntarily.[37] Needless to say this did not occur, and at the time of writing a search did not reveal any further action in the newly constituted Bundestag elected in late September 2009—in which, it will be recalled, the Free Democrats, in opposition before the election and among the plaintiffs in the case under discussion, form part of the new coalition government.

The Court’s decision is to some extent necessarily vague. It is, first of all, difficult to know precisely when a decision-making process is concluded so that the embargo on parliamentary demands for documents ends. This question had earlier been the subject of a sharp division of opinion in the Bavarian Constitutional Court, four dissenting judges taking the view that although the legal process of decision-making had not concluded, as a matter of practice the decision had already been taken by the government and was no longer open to being changed.[38] The Court did not deal with this problem in the case under discussion. It requires very little ingenuity to think of further situations in which it is debatable whether a decision can be said to have been taken or not, and indeed what the ‘decision’ is: for example, is taking the decision to build a new road and then deciding upon its precise route one decision or two?

This distinction between open and closed files, so to speak, is certainly of long standing in German law: it goes back to the Weimar Republic.[39] Nevertheless one wonders whether the reasoning behind it is quite as convincing as it appears at first sight. The problems involved in determining which matters count as open and which as closed—when a decision can be said to have been taken—might be thought to be symptomatic of a problem with the distinction itself: as a means of enforcing the separation of powers, it misses the mark. If it is feared that the Parliament might start to try to become a sort of shadow government, why not just ask directly whether the parliamentary demand is of such a nature that it amounts to an attempt to take over the functions of the executive? It is surely possible that some parliamentary investigations will not amount to that even though a decision is still to be taken. Surely there are some circumstances in which plans and concepts of the executive can properly be investigated by a parliamentary committee.

It is sometimes suggested by commentators in Germany that the power of Parliament to demand documents should, as a general rule, have preference over the executive’s needs, given that Parliament is the directly elected body and the executive, in the German system, is not directly elected but merely chosen from the majority of the legislature.[40] Certainly this argument is weaker in Germany than it is in the United Kingdom with its tradition of absolute parliamentary supremacy and omnipotence. Such ideas are quite foreign to post-Nazi Germany, in which power is divided between organs of government by the supreme constitution and supremacy belongs to the Basic Law as the constitution, the law and the people as sovereign rather than to any constitutional creature, even one as exalted as the legislature.[41] Furthermore, as a practical matter most people do not vote for particular MPs, but for a party leader (candidate for head of the executive); it would hardly be going too far to say that the executive is in form indirectly but in reality directly elected, while the legislature is in form directly but in reality indirectly elected through the mediation of political parties and their leaders. Then again, it might be argued that democracy is as much about the rights of minorities as it is about majorities—as the German provision enabling one-quarter of MPs to set up an investigatory committee vividly illustrates—and thus the opposition also has a form of qualified but directly conferred democratic mandate to hold the government accountable, albeit not to govern.

However one thinks about these issues of theory, it is still true that in Germany the executive is dependent upon the continued confidence of Parliament for its very maintenance in office—surely the ultimate in co-government. Indeed, if a purely parliamentary system were in place without the vast power of the political parties, Parliament might even on occasion decide to use its legal powers to the full and dismiss a government that refused to hand over files. And we may also ask: if Parliament can debate governmental plans, as it surely can, why can it not investigate them as well?

In other democracies the separation of powers has not been endangered by the lack of the German principle that only concluded decisions can be the subject of parliamentary demands for information. Admittedly in countries such as the UK and Australia a minority of one-quarter of MPs cannot set up a committee, but what about the Upper House, which is not always under the control of the government? It would therefore be best for the clarity of the law and for the effectiveness of the system if the distinction between open and closed files were wholly abandoned, as some dissentients have long suggested.[42] These suggestions, albeit in a mild form, have now reached the pages of the most prestigious commentary on the Basic Law, so it is disappointing to find the Court sticking to the old line in the decision under review here.[43]

A recent example[44] at State level illustrates the unduly restrictive effect that this view can have. The opposition in a German State Parliament wished to set up an investigation into the State government’s negotiations with the former princely ruling house of the area relating to various unresolved questions of property rights, and it was held that as these negotiations were still going on it and the government had not made a decision it was unable to do so. The State Constitutional Court held that the negotiations would be ‘severely prejudiced’[45] if the negotiating strategy of the government were revealed to the public. Leaving aside the possibility of holding the investigation in closed session, the obvious danger of prejudicing the negotiations would clearly be apparent to all the members of the proposed committee, and it would hardly be likely that the opposition party would wish to suffer the political opprobrium of having cost the State millions of euros by asking indiscreet questions. The proposed investigation might even have revealed useful information which could have speeded up the negotiations or strengthened the government’s case, or both. In other words, the problem of investigating currently open questions on which the government has not yet made a decision is a problem that can be dealt with politically as well as, if not better than, it can be dealt with judicially by the sledgehammer method of banning investigations altogether.

The German Federal Constitutional Court’s decision under discussion here might also be criticised because it gives insufficient guidance on how the various balancing processes it requires are to work in individual cases. Given that this criticism had also been made of one of the very few earlier rulings on the topic,[46] it is not easy to excuse this failing with vague references to the difficulty of foreseeing all questions in advance. Furthermore, the lack of specificity is a weapon in the hand of the executive, which can use it as a further means to spin out the process of seeking access to files—as it did in the case under discussion here—until it is saved by the next election or a general loss of public interest in the question under debate.

The Court’s emphasis on the duty of the executive to give reasons is, however, a major advance which improves the responsiveness of the executive to parliamentary requests in a concrete and much-needed way. It would be worth thinking about a similar duty to give explicit reasons in other countries in which the legislature has the right to send for witnesses and documents subject to executive privilege. It is to be hoped that a fully-fledged and tenable doctrinal justification can be found for this new principle as an outgrowth not merely of a statute but of Article 44 itself, and also that it is taken to heart by the executive so that a long series of further court cases fleshing out the principle and deciding whether the executive has lived up to it in particular cases will not be necessary.

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[*] The author wishes to thank the University of Mannheim, which invited him to teach in its Masters of Comparative Law course, during which time this note was written, and particularly Herr Professor Hans-Joachim Cremer and Herr Dr Dirk Hanschel. Thanks are also due to Herr Univ-Ass Dr Konrad Lachmayer of the University of Vienna for drawing my attention to one of the Austrian cases cited below. Unless otherwise stated, all translations in this article are the author’s. All websites accessed on 8 July 2010.

[1] [1974] USSC 159; (1974) 418 US 683.

[2] There is a useful analysis of these in M Rosenberg, ‘Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments’ (Congressional Research Service, Washington, DC 2008), www.fas.org/sgp/crs/secrecy/RL30319.pdf.

[3] A recent case is analysed in G Taylor, ‘Parliament’s Power to Require the Production of Documents—A Recent Victorian Case’ (2008) 13(2) Deakin Law Review 17.

[4] Court file nos 2 BvE 3/07. At the time of writing the court’s judgment had not been reported in the official series of reports, and was most easily accessed on the court’s website (www.bundesverfassungsgericht.de) under the date of its decision. Reflecting the practice in many other European countries, the court’s decision is not known by the names of the parties, and it has no official title. It will be referred to below simply as ‘the court’s judgment’, followed, where called for, by a reference to the paragraph of the decision in brackets. There had been a false start in this matter, when the question was brought before the Federal Court of Justice rather than the Federal Constitutional Court: the former’s judgment on appeal is reported in HRRS 2009 Nr 398.

[5] The comparison between this area of German law and US executive privilege is made expressly by some courts and commentators in Germany, eg H-J Mengel, ‘Die Auskunftsverweigerung der Exekutive gegenüber parlamentarischen Untersuchungsausschüssen’ [1984] Europäische Grundrechte-Zeitschrift 97, 101.

[6] The translation is from the version at https://www.btg-bestellservice.de/pdf/80201000.pdf.

[7] F Klein in R Herzog et al (eds), Grundgesetz—Kommentar [‘Maunz/Dürig’] (CH Beck, 55th edn 2009) Art 44, 27.

[8] K Rueprecht and F Pallin, ‘Ausgewählte Fragen zum parlamentarischen Untersuchungsrecht und zum prozessualen Selbstbezichtigungszwang’ [1991] Österreichische Juristen-Zeitung 545, 546. After that article was written, there were however controversies in Austria about blacking out parts of files transmitted to an investigatory committee on the ‘Euro-fighter’: see http://orf.at/070514-12252/?href=http%3A%2F%2Forf.at%2F070514-12252%2F12234txt_story.html; and see the report of the proceedings of the investigatory committee into the Ministry of the Interior and other ministries of 13 May 2008, www.parlament.gv.at/PG/DE/XXIII/KOMM/KOMM_00148/pmh.shtml. These do not however appear to have resulted in any definitive rulings on the state of the law. According to Klein (n 7) 42, the idea of permitting a minority to set up an investigatory committee has been taken up in other EU countries such as Portugal and Greece, and also in many of the newer democracies of eastern Europe (in which German constitutional learning has been most influential).

[9] §§ 4, 17(2) of that Law.

[10] http://www.bundestag.de/bundestag/ausschuesse/ua/1_ua/auftrag/auftrag_erweiter_eng.pdf.

[11] This appears not to be an exclusive list, given that other possibilities have been mentioned in earlier decisions as being out of bounds, for example topics that are wholly non-public in nature (a claim made but rejected before the Saxon Constitutional Court recently: LKV 2008, 207) and those that do not belong to federal responsibility: BVerfGE 77, 1, 44. Then again, it is odd that the fifth topic, abuse of power, was mentioned by the Court although it did not arise on the facts of this case. Is the Court trying to imply that this is a conclusive list?

[12] Nevertheless, it did hold that the executive’s interpretations of the terms of reference were too narrow and it had unjustifiably refused access on this ground also: Court’s judgment, [182]–[218].

[13] Art 20(2) states: ‘(2) All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies’ (source of translation as in n 6).

[14] It is also possible for an investigation to infringe the separation of powers between legislature and judiciary. Such a claim was considered but rejected recently by the Saxon Constitutional Court in LKV 2008, 207.

[15] This point was made by the Bremen Constitutional Court in a most impressive judgment reported in BremStGHE 5 (1989), 15, 32f.

[16] Court’s judgment, [122].

[17] Court’s judgment, [123]–[127]. This built on a case in the Court decided under the State Constitution of Schleswig-Holstein: BVerfGE 110, 199, 221f.

[18] BayVerfGE 38 (1985), 165, 176.

[19] BremStGHE 5 (1989), 15, 33. There is a good summary of this debate in C Meyer-Bohl, Die Grenzen der Pflicht zur Aktenvorlage und Aussage vor parlamentarischen Untersuchungsausschüssen unter Berücksichtigung der Besonderheiten der Hamburger Verfassung (Duncker & Humblot, 1992) 100–5.

[20] For example, BVerfGE 67, 100, 139; the decision of the Constitutional Court of Hamburg in DöV 1973, 745. See also H Bogs, ‘Steueraktenvorlage für parlamentarische Untersuchung (Art 44 GG; § 30 AO)—zur Entscheidung des BVerfG v. 17.7.1984, BVerfGE 67, 100 (Flick-Untersuchungsausschuß)’ JZ 1985, 112, 114.

[21] J Hecker, case note, Deutsche Verwaltungsblätterl 2009, 1239, 1240.

[22] Court’s judgment, [130], [165] (referring to an incident in which the ‘Left’ party lost a file which later found its way into a news magazine; further information about this is in Drucksache 16/13400, 53). The point that the executive might also be the source of leaks was taken from the earlier case of BVerfGE 67, 100, 136.

[23] Court’s judgment, [154], echoing BVerfGE 67, 100, 139.

[24] Court’s judgment, [134].

[25] Court’s judgment, [133].

[26] Court’s judgment, [135]. This question has also come up in relation to the files of the former East German secret police which contain much material obtained by abusing the right of secret communications: Umbach in DC Umbach and T Clemens (eds), Grundgesetz: Mitarbeiterkommentar und Handbuch, vol 2 (CF Müller, 2002) 206f.

[27] Court’s judgment, [136].

[28] Wachstum. Bildung. Zusammenhalt. Der Koalitionsvertrag zwischen CDU, CSU und FDP, www.cdu.de/doc/pdfc/091026-koalitionsvertrag-cducsu-fdp.pdf.

[29] For example, [140].

[30] [145].

[31] Court’s judgment, [138].

[32] Court’s judgment, [166].

[33] Court’s judgment, [139]–[144], [146]–[153], [172], [175] and further paragraphs.

[34] Mine, not the Court’s.

[35] Drucksache 16/13865.

[36] Debates of the Bundestag, 26 August 2009, 26 274.

[37] Ibid, 26 277.

[38] BayVerfGE 38 (1985), 165, 188.

[39] See the judgment of the Hessian State Constitutional Court, ESVGH 17 (1966), 1, 13.

[40] Bremen Constitutional Court, BremStGHE 5 (1989), 15, 23f; M Morlok in H Dreier (ed), Grundgesetz—Kommentar vol 2 (Mohr Siebeck, 1998) 930f. Contra: Lower Saxon State Constitutional Court, NdsVBl 1996, 189, 190 (the executive owes Parliament a duty to account for its actions but not the revelation of all its internal secrets). Agnostic: V Busse, ‘Der Kernbereich exekutiver Eigenverantwortung im Spannungsfeld der staatlichen Gewalten’ [1989] Die Öffentliche Verwaltung 45, 47.

[41] G Memminger, ‘Parlamentarische Kontrolle der Regierung durch Untersuchungsausschüsse’ [1986] Die Öffentliche Verwaltung 15, 17.

[42] For example, E Kaufmann, ‘Untersuchungsausschuß und Staatsgerichtshof’ in AH van Scherpenberg et al (eds), Autorität und Freiheit: Gesammelte Schriften von Erich Kaufmann vol I (Otto Schwartz, 1960) 321 (a reprint of a piece originally written in 1920); Mengel (n 5) 97, 102, who also points out that the government might delay making a formal decision in order to be able to withhold files. A good summary of the debate on this topic may be found in A Weisgerber, Das Beweiserhebungsverfahren parlamentarischer Untersuchungsausschüsse des deutschen Bundestages (Peter Lang, 2003) 87–90.

[43] Klein (n 7) 86–89.

[44] State Constitutional Court of Baden-Württemberg, ESVGH 58 (2007), 15.

[45] At 26.

[46] Bogs (n 20) 112.