Overview

The reform is still in the hands of interministerial coordination. According to the Federal Government (Bundesregierung), the Federal Chancellery (Bundeskanzleramt) has produced an initial draft of reforming the BND-Gesetz (BNDG), which is currently under preliminary discussion with the Interior, Defence and Justice ministries. At this stage, the Federal Government expressly provides no information on the contents of any future government draft bill. The proposed modification is designed to enhance national sovereignty, operational capabilities, data exchange, and oversight in a constitutionally compliant manner.

The crux of the matter is not an exhaustive inventory, but rather a pivotal inquiry: should the BND expand its operational scope beyond its current role as a foreign intelligence agency? The legal starting point is narrow: the BND is a higher federal authority within the portfolio of the Federal Chancellery and collects information about foreign countries of relevance to foreign and security policy (§ 1 Abs. 1–2 BNDG); it has no executive powers—especially no police powers—and may not seek administrative assistance beyond its own powers (§ 2 Abs. 3 BNDG). For precisely that reason, the reform is primarily a question of oversight and thresholds.

Existing oversight

The BND is not regulated by one authority, but rather by several distinct monitoring channels. Politically and bureaucratically, specialist and administrative supervision lies with the Chancellery. In Parliament, the Parliamentary Control Committee (PKGr) is the primary oversight body: the Federal Government is required to provide the PKGr with detailed reports on the agency’s overall operations and important matters (§ 4 PKGrG). The physical entity has the ability to demand documentation and records, as well as legal and administrative support (§ 5 PKGrG). However, § 6 PKGrG stipulates that the scope of this briefing may be restricted or even denied in rare circumstances.

Moreover, a second parliamentary oversight channel exists through the Vertrauensgremium of the Haushaltsausschuss. Section 10a of the Bundeshaushaltsordnung (BHO) designates specific expenditures that require confidentiality to this entity. In the realm of its oversight authority, it holds the same powers as the PKGr. In this scenario, the Bundesrechnungshof is only relevant in the capacity of an external auditor for financial monitoring of budgetary and economic management. It is not appropriate to use it as a regulatory body in the realm of fundamental rights.

A substitute oversight mechanism tied to fundamental rights for secret telecommunications measures operates under Article 10 (2) of the Basic Law and through the G10 Commission; it reviews the admissibility and necessity of the measures (§ 15 G10). For technical intelligence under the BND Law (BNDG), a separate, independent legal oversight mechanism exists: the Unabhängiger Kontrollrat (UKR), as a supreme federal authority and independent body, is subject only to the law (§ 41 BNDG). Its court-like form scrutinizes ex ante and legality, primarily in the realm of strategic foreign signals intelligence and specific technical measures (§ 42 BNDG). Responsibilities to the PKGr, eligibility for assistance from the BND, interactions with the G10-Kommission and the Bundesbeauftragten für den Datenschutz und die Informationsfreiheit (BfDI), and provisions on assessment, service standards and data protection (§§ 55–64 BNDG) enhance monitoring. Courts offer an additional legal protection route. The issue is not insufficient monitoring but rather its dispersal.

Where a more operational BND collides

The legal divide in the BND reform hinges on a shift in function. At present, the BND is primarily focused on foreign intelligence: it gathers and analyses data about foreign nations (§ 1 Abs. 2 BNDG). It lacks police powers or the ability to issue directives, and cannot request administrative aid for actions that it is not allowed to execute itself (§ 2 Abs. 3 BNDG). Furthermore, the principle of proportionality in § 2 Abs. 4 BNDG applies.

Conflict arises when clandestine pre-threshold intelligence gathering morphs into influence bordering on overt interference. The Wissenschaftlichen Dienste (research services) describe the separation requirement in three ways: in terms of organization, function, and information. Although its exact constitutional status is disputed, the law clearly regulates it. The current model is based on a pre-threshold approach. Extensive undercover data collection is more easily accepted by law because it facilitates political briefings and early warning, rather than immediate action. The informational separation principle exists specifically to prevent unfiltered data from influencing operational actions without appropriate limits.

If the BND were given follow-on operational powers, the balance would tip. According to the Federal Constitutional Court (Bundesverfassungsgericht) precedents, such an action would lead to more rigorous interference, necessitating the establishment of strict legal thresholds. In 2020, Karlsruhe further clarified that, in accordance with Article 1, Paragraph 3 of the German Constitution, the BND is bound by fundamental rights, even abroad. A more operational BND would therefore be possible only if the legislature laid down overriding protected interests and clear limits on domestic effects, robust ex ante oversight, documentation and legal protection. Otherwise, the stricter standards that apply to operational security authorities would probably govern.

The five main risks of the reform

The most significant danger of the overhaul is not a single sensational event, but a fundamental design flaw. Firstly, there is a potential for a constitutional conflict: once the BND begins to exercise follow-up operational powers during information gathering under Section 1, Paragraph 2 of the BND Act, the degree of interference increases significantly. In such a scenario, significantly stricter legal requirements, such as threshold limits and ex ante controls, would be necessary than the current intelligence model can provide. Germany does not suffer from a lack of oversight, but rather from the presence of multiple separate oversight bodies: PKGr, Vertrauensgremium, G10-Kommission, Unabhängiger Kontrollrat, BfDI and the courts. The proposed reform may result in the consolidation or reassignment of responsibilities, leading to a loss of specialization without any corresponding improvement in actual oversight. To begin, a more active profile increases the risk of misidentification and exacerbation, particularly in the digital realm. Taking action based on uncertain facts can have negative consequences in legal, diplomatic, and operational spheres.

Fourthly, there is a risk of losing public trust and credibility. As a reform moves towards areas such as private communication, media freedom, data transfers, and measures that could be considered interference, it may be perceived as a significant shift. Fifthly, there is a potential budgetary or capability discrepancy. In 2026, the BND is allocated 1,510,273 T€, which represents an increase of 316 million euros, or 26%, compared to the previous year. The Bundesrechnungshof refers to this increase. Simultaneously, the operational strategies of intelligence agencies remain confidential and are managed by the Vertrauensgremium under § 10a BHO. The risk is not only insufficient funding, but also limited traceability as to whether staffing, technology, documentation and oversight grow to the same extent as the powers. The Bundesrechnungshof serves here as a warning signal for value for money and capability building, but does not replace oversight of fundamental rights.

Lessons from documented BND controversies

The majority of the disputes surrounding the BND do not suggest that the service lacked capabilities in principle. Rather, they reveal that the agency consistently created risky methods without the necessary legal framework, documentation, or oversight. The substance in question explicitly characterizes this enduring pattern as de facto legalization and increased scrutiny.

The Journalistenaffäre highlights the consequences of ambiguous authority lines. Surveillance, source management, and the establishment of relationships with journalists were later found to have exceeded legal limits, negatively impacting press freedom and service procedures. The Eikonal, Bad Aibling, and Selektoren-Komplex exhibit a second pattern: intensive collaboration with partner services, problematic selectors, data sharing, and oversight that was either inadequate or delayed. To address these issues, conflict resolution shifted towards the formation of special reviews, committees of inquiry, legislative adjustments, and constitutional court interventions. The curveball represents the danger that untrustworthy information, or information later found to be inaccurate, can have unintended consequences in foreign policy if shared by partner services. Additionally, the Rubikon example demonstrates how enduring liaison networks that operate under secrecy regulations can hinder both parliamentary and public review.

For 2026, this does not amount to a rejection of reform, but rather to a clear boundary. Anyone who wants to strengthen the BND beyond its current foreign intelligence profile under Section 1 Abs. Two of the BNDG must not allow the line to be defined only after the fact through scandals, committees and courts. The third sentence of section 2, paragraph 3, of the BNDG precisely expresses that historical lesson.

Until the PKGr, the Vertrauensgremium (§ 10a BHO), the G10-Kommission, the UKR and the BfDI are fully integrated in terms of staffing, processes and technology, no comprehensive operational action should be taken. The key factors are the intelligence directive in § 1 Abs. 2 BNDG and the ban on executive or police powers in § 2 Abs. According to Section 2 (4) of the BNDG, only a narrow and foreign-focused corridor is possible that must undergo mandatory ex ante review, reporting obligations, and budgets that the parliament can monitor.