7. When a constitutional organ 2
to make certain use of its right to introduce bills
in the Bundestag under Art. 76(1) of the Basic
Law, this entails no objections as long as, only
with regard to the content of the bill, it observes
the limits of the Constitution and does not also
seek to bind other organs of the state.
Judgement of the Second Senate of 29 July 1952 — 2 BvE 3/51 —
in the constitutional proceedings relating to the agreements between the Allied High Commissioners and the German Federal Chancellor of 22 November 1949 (so-called Petersberg Agreement); — Applicant: the Social-Democratic Party (SPD) of the Bundestag, represented by its 1st Chairman, Dr. Kurt Schumacher, in Bonn; Respondent: the Federal Government, represented by the Federal Chancellor; other involved parties: the Bundestag.
The applications are hereby dismissed on the merits.
By neglecting to submit the Petersberg Agreement of 22 November 1949 to the federal legislative bodies for their consent or participation in the form of a federal law, the Federal Government did not violate Art. 59(2), first sentence, of the Basic Law.
The negotiations ultimately leading to the so-called Petersberg Agreement began after the Foreign Ministers of France, the United Kingdom and the United States provided the three High Commissioners with basic instructions and powers at the Tripartite Conference, held in Paris in November 1949. The object was to provide "the Federal Republic with a greater degree of freedom to manage German affairs" and to support and promote "the ongoing inclusion of the German people in the European community."3
this time, the Federal Chancellor proposed to the
Allies that "a committee be appointed, with
participation by German representatives, to review
the security issue as well as the international
economic issues related to this." He designated
these issues as including:
1. accession by Germany to the Ruhr Statute;
2. close cooperation with the existing Security Commission;
3. investment of foreign equity in German plants;
4. earliest possible participation by Germany in the close economic ties between France, Italy and Benelux;
5. termination of the state of war.
The Federal Chancellor stated, however, that prior to beginning these discussions, dismantling already underway must be slowed down and further dismantling must be renounced.
Against this background, negotiations took place on 15, 17 and 22 November 1949, between the German Federal Chancellor and the High Commissioners of France, the United Kingdom and the United States at Petersberg, near Bonn. The results of these negotiations are set forth in the "Protocol of the Agreements Reached between the Allied High Commissioners and the German Federal Chancellor at Petersberg on 22 November 1949" (read by the Federal Chancellor from a governmental declaration submitted to the 18th Session of the Bundestag on 24-25 November 1949).
… (text of the statement omitted)
On 24 November 1949, the SPD made the following motion:4
Bundestag should rule as follows:
The Bundestag disapproves of the fact that the Federal Chancellor signed the Agreement concluded with the High Commission without the requisite authorizing legislation under Art. 24(1) of the Basic Law, since this involves a transfer of sovereign powers.
The Bundestag is of the opinion that apart from Art. 24(1) of the Basic Law, the Agreement requires the consent of the bodies of the Federation competent for federal legislation. The Bundestag expects the Federal Government to obtain this consent.
This motion was rejected by the Bundestag in its 18th Session on 24-25 November 1949.5
By way of written pleadings, the SPD brought an action against the Federal Government on 9 July 1951. It petitioned:
it should be determined that
1. the Federal Government violated the constitutional rights provided to the Bundestag pursuant to Article 59(2), first sentence, of the Basic Law, in that it neglected to present the agreements (the Petersberg Agreement) made by the Federal Chancellor on 22 November 1949 to the Bundestag for consent in the form of a federal law,
2. the Petersberg Agreement of 22 November 1949 is a treaty that regulates the political relations of the Federation and is invalid due to the fact that it was not concluded by the Federal President and was not consented to by the legislative bodies in the form of a federal law.
The Federal Government petitioned:
1. that is should be determined that the Federal Government did not violate the constitutional rights provided to the Bundestag pursuant to Article 59(2), first sentence, of the Basic Law, in that it neglected to present the Petersberg Agreement of 22 November 1949 to the Bundestag for consent in the form of a federal law,
2. that the application under Point 2 be dismissed on procedural grounds.
German Bundestag joined the Federal Government
in the proceedings pursuant to § 65(1) of
the Federal Constitutional Court Act; it petitioned:
that the action by the Social-Democratic Party of the Bundestag against the Federal Government be dismissed.
The application is admissible pursuant to § 64 of the Federal Constitutional Court Act… . (elaboration by the Court).
It is not inconsistent with § 65(1) of the Federal Constitutional Court Act that the German Bundestag has joined the Federal Government, i.e., the respondent in these proceedings. Even though § 64 makes it possible for a parliamentary party to seek to enforce the rights of the Bundestag before the Federal Constitutional Court, the Bundestag as such, which passes its resolutions by majority voting, cannot be denied access to the proceedings in order to represent the majority position.
Under Art. 59(2) of the Basic Law, treaties of the Federation with foreign states that regulate the political relations of the Federation or relate to matters of federal legislation require the participation of Parliament.
The Petersberg Agreement is a treaty.
By concluding a treaty, both parties seek to bind themselves. In view of the special political situation (occupation) at the time the Agreement was concluded, the question arises as to whether the parties were able and willing to enter into a commitment. One could view the Agreement as dealing with the mere imposition of terms by the Occupying Powers or with parallel declarations and understandings serving to afford reciprocal protection with regard to the directives governing the policies to be pursued by both sides. If this approach is correct, then the Agreement represents a self-imposed limitation by the Allied Powers in favor of the Federal Republic with respect to the former’s "supreme power." This sort of appraisal does not, however, do justice to the true legal nature of the Petersberg Agreement.
It is beyond all doubt that it would have been possible for the Allied High Commission to implement unilaterally at least part of the content of the Agreement by way of order or instruction without transcending in this manner the limits on its exercise of "supreme authority," as set forth in the Occupation Statute. This was, however, impossible with regard to other essential parts of the Agreement. The Federal Republic was not able to be unilaterally forced to join the Council of Europe in Strasbourg as associate member, to sign the agreement with the U.S.A. on Marshall Plan aid6, or to join the Authority for the Ruhr. In the case of the Authority for the Ruhr 7, moreover, the Allied High Commission expressly waived its ability to impose special conditions under Article 31 of the Ruhr Statute.8
The fact that the Federal Government was subject to the control of the Allied High Commission does not exclude the possibility of entering into commitments via treaty. Even within a superiority-subordination relationship, it is possible to conclude true treaties, such as under international law between a protecting state and its protectorate or under administrative law between the state and its citizens.
The content and purpose of the Agreement demonstrate that the High Commissioners departed from previous practice: in pursuit of the new era of occupation policy that commenced with the Conference in Paris, they took a novel step by attaching great importance to a coordination of the intentions of the parties that was to be free of coercion and decree.
The text of the individual accords does not, upon closer examination, yield anything to oppose the assumption that the Agreement represents a true treaty. Such expressions as "included in a general settlement," "have agreed upon the following,"9 as well as "agreed"10 and "being understood between both parties"11 clearly indicate the character of a treaty.
It is not unusual that "international treaties" are loosely formulated and do not always employ a precise usage of language. This sort of formulation corresponds to diplomatic custom and in no way differs from the recently signed treaties on the European Defense Community and the General Treaty.12 The fact that the length of the Agreement is left undefined can be explained by the subject matter with which it deals; this is without exception derived from the area of occupation law and is thus tied to it with regard to time. This also explains the absence of a termination clause.
In contrast to all previous documents, the Agreement is signed, on the one hand, by the three High Commissioners and, on the other, by the Federal Chancellor.
The declarations — negotiated, protocolled and signed by both "parties" — deal with the determination of the performances and counterperformances to be rendered by both sides.
In other words, it is to be assumed that the Petersberg Agreement is a treaty, despite the fact that it was concluded under the occupation regime superimposed upon German sovereign power.
This Treaty was not concluded between the Federal Republic of Germany and France, Great Britain and the United States.
Germany’s treaty partner was the Allied High Commission as collective organ of the three Occupying Powers. The three High Commissioners did not act as representatives of their respective states. The Agreement of 8 April 194913 created both the system of three-Power control and the Allied High Commission as "supreme Allied organ of control." According to the Charter of the Allied High Commission for Germany14, the Commission is established "for the exercise of supreme Allied authority in the Federal Republic of Germany"15; it exercises "control over the Federal Government … as provided in the Occupation Statute."16 In other words, the Allied High Commission is not an organ of the individual states by which it was set up but rather a collective organ, within the meaning of international law, of the Occupying Powers.17
As for Germany, the Federal Chancellor acts for the Federal Government. Other organs of the Federation were not involved.
The Agreement thus was not concluded, as alleged by the applicant, by France, Great Britain and the United States. Although it has the nature of an instrument under international law, it is an agreement between, on the one hand, the collective organ of the Occupying Powers and, on the other, the German Federal Government, for which the Federal Chancellor acted. This was also the position taken by the applicant, in that it referred to "the agreements made between the Federal Chancellor and the Allied High Commission" in both its motion in the Bundestag18 and its application in the instant proceedings.
The Petersberg Agreement regulates exclusively those issues that have arisen by way of occupation in, as well as for, the occupied area, i.e., issues belonging to the jurisdiction of the Allied High Commission. The relationship between the Federal Republic and the individual countries is not directly affected by the Agreement. The situation would be different if the Allied High Commission were empowered by its home states to act for them as individual states.
For this reason, commitments under international law were not entered into between the Federal Republic of Germany and the individual Occupying Powers by way of the Petersberg Agreement; rather, the Federal Government and the Allied High Commission undertook obligations that fell within the scope of their responsibilities
Such agreements are in all respects possible, in particular, for the period in which the control relationship exists between the Allied High Commission as collective organ and the Federal Government. They represent a more specific structuring by treaty of the control relationship.
Also not inconsistent with this appraisal of the legal substance of the Agreement are the declarations by the Federal Chancellor in the 18th Session of the German Bundestag on 24-25 November 1949. These apparently only aimed at describing for Parliament the political substance of the Petersberg Agreement and the relaxation thus achieved vis-à-vis the previous legal situation of occupation. A new phase in the development of the law of occupation in fact commenced with the Petersberg Agreement. Although the control organ remained intact, the path now led from the Declaration on Germany by the Western Powers of 15 May 195019 and the revised Occupation Statute of 6 March 195120 to the Treaty on Germany of 26 May 1952, which in this case was truly signed by the Federal Republic and the United States, England and France, that is, by the Foreign Ministers as representatives of their states.
The ascertainments made above for the parties obligated by the Agreements reached at Petersberg also apply to the two assurances that played a prominent role in both the negotiations in the Bundestag and in the instant proceedings, namely: to the Federal Government’s declared intention of applying for membership in the International Authority for the Ruhr,21 and to the declaration to take legislative action in the field of decartelisation and monopolistic practices corresponding to decisions taken by the High Commission in accordance with Art. 2(b) of the Occupation Statute.22
1. Membership in the International Authority for the Ruhr.
The Agreement establishing the International Authority for the Ruhr23 was signed by the governments of Belgium, France, Luxembourg, the Netherlands, the United Kingdom of Great Britain and Northern Ireland and the United States of America. Art. 2 of the Agreement designates as members in the Authority the signatory Governments and Germany. In other words, the Occupying Powers have made a decree for Germany by virtue of the authority they exercise over it, in particular, for the length of their rule "until the coming into effect of a peace settlement for Germany."24 Therefore, obligations were placed upon Germany absent the participation by the Federal Government, let alone the Federal Republic. The votes with which Germany was provided in Art. 9 were cast by a joint representative of the Occupation Authorities.25
The intention "of applying for membership of the International Authority for the Ruhr" initially means only that the Federal Government intends to exercise the rights provided to it by the Ruhr Statute in the future on its own. Neither the Federal Government nor the Federal Republic declared — or was able to declare — an intention to become a member of the Ruhr Statute. By way of implementation of the Petersberg Agreement, the Federal Chancellor sent two letters to the chairman of the Allied High Commission on Nov. 30 and 16 December 1949, applying for "the admission of the Federal Government to the International Authority for the Ruhr," designating the German delegates in the Authority, and expressing "that the Federal Government hereby assumes the rights and duties arising under the Agreement for the establishment of an International Authority for the Ruhr of 28 April 1949." Both letters were not addressed to the signatory powers of the Ruhr Agreement but rather to the Allied High Commission. Both letters refer only to the Federal Government, which assumed the rights and duties pursuant to Art. 9(c) that had been established for Germany by the Occupying Powers. The Federal Republic did not thereby become a treaty partner; this is in particular demonstrated by Art. 33, which provides that even after Germany’s admission to the Ruhr Authority, amendment and termination of the Agreement merely require agreement by the signatory governments.
The Federal Chancellor’s declaration set forth in the Petersberg Agreement thus does not represent — as alleged by the applicant — an obligation under international law of the Federal Republic, for which the consent of the legislative bodies pursuant to Art. 59(2) of the Basic Law would have been necessary.
2. Legislative action in the field of decartelisation … (Point VI of the Petersberg Agreement).
The Federal Chancellor here assumed only the obligation that with regard to the introduction of legislation, the Federal Government would make use of its right in a specific direction. This obligation was not able to extend beyond the Federal Government’s constitutional powers. The Federal Government was not in a position to bind the legislative bodies. This obligation was subject to the self-evident proviso that the German legislative organs are free to approve, amend or reject bills submitted to them by the Federal Government.
When an organ entitled to initiate legislation undertakes to make certain use of its right, this entails no objections as long as, only with regard to the content of the bill, it observes the limits of the Constitution and does not also seek to bind other organs of the state.
1. A treaty between the Federal Government and the Allied High Commission does not fall within the scope of Art. 59 of the Basic Law. Art. 59 refers only to treaties with foreign states. Although certain international organisations are to be accorded equal status as foreign states,26 the supreme Allied control organ in Germany nevertheless occupies a position vis-à-vis the Federal Government that precludes it from being equated with a foreign state.
Germany’s legal status under Allied occupation has no precedent in the history of international law. As a consequence of the military defeat, the total occupation of German sovereign territory and the removal of the German government, the Allies assumed supreme authority in Germany.27 When the originally agreed upon organ of control, the Control Council, became unable to function properly, the Occupation Statute was proclaimed by France, Great Britain and the United States "in the exercise of the supreme authority which is retained." The Occupying Powers thus exercise supreme power in Germany via the Allied High Commission. There is no need here to investigate more closely the legal character of occupation authority. In any event, a collective organ pursuant to international law, which exercises power in Germany while a formal state of war continues, cannot be regarded as a foreign state vis-à-vis the Federal Republic.
The Petersberg Agreement is exclusively concerned with matters that had to be dealt with as a result of the existence of the occupation regime, and it continues in force only as long as this regime is in place. It deals with the ordering of matters over which both the Occupying Powers, by way of occupation authority, and the Federal Government, pursuant to the Basic Law, claim jurisdiction. The Petersberg Agreement is therefore not an agreement by the Federal Republic with a foreign state within the meaning of Art. 59 of the Basic Law. In this respect, the situation is different from that surrounding the agreement between Germany and the United States of America, Belgium, the British Empire and France concerning the military occupation of the Rhineland of 28 June 1919. At that time, the German Reich was not subject to occupation power. A German government, whose freedom of action under international law was not subject to any restrictions, concluded an agreement with foreign states regarding the occupation of a portion of Reich territory, this taking place simultaneously with the conclusion of the peace treaty.
Even according to the state practice during the period of the Weimar Republic, treaties with international organs that exercised supreme authority in Germany were not subject to Art. 45 of the Constitution then in force, which dealt with parliamentary participation. Between 1920 and 1935, the Saar territory was placed under the control of a governmental commission responsible to the League of Nations. The Saar territory remained, however, a part of German sovereign territory. For this reason, agreements with the governmental commission for the Saarland were not dealt with under Art. 45(3) of the Weimar Constitution, even when they related to matters of Reich legislation; rather, they were approved by way of ordinance by the government of the Reich.28
2. The entire substance of the Basic Law indicates that it seeks to represent the constitution of a sovereign state. Following from the resolutions made at the Conference of Minister-Presidents29, held in Coblenz from 8-10 July 1948, it originally conceived of as merely an organisational statute of an occupied country, but it ultimately assumed the guise of the constitutional charter of a sovereign state. None of its provisions refer to the fact of occupation; moreover, they do not deal with the relationships with the Occupying Powers. It proceeds without exception from the assumption of the Federal Republic’s equal standing in the community of nations.
The Parliamentary Council had long intended to adopt a clear reference in the Preamble to the Basic Law to the limitation on the independence of the Federal Republic by the Occupying Powers. This was to take place with the formulation: "The occupation of Germany by foreign powers has subjected the exercise of this right (to the free formation of national life) to severe limitations." This wording initially received unanimous approval and cropped up over a long period of time in all proposed formulations for the Preamble. But when the General Drafting Committee asserted that the reference to the limitation on sovereignty by occupation sounded too much like resignation, arguing instead for an expression of the will to overcome this limitation30, it was finally decided to forego altogether a mention in the Basic Law of the occupation regime and the legal relationship to it.
Art. 59(2) of the Basic Law deviates from the system of separation of powers, in that the legislative branch encroaches in the area of the executive branch. The fact that it does not expressly deal with the relationship to the Occupying Powers does not mean that it contains a gap in this regard. It is not Art. 59(2) but rather the overall structure of the Basic Law that displays a gap with respect to the relationship to the Occupying Powers. By applying Art. 59(2) to agreements with the Occupying Powers, the deviation from the principles of separation of powers would thus be impermissibly widened.
3. In the deliberations by the Parliamentary Council, the Jurisdiction Committee was of the opinion that foreign affairs within the meaning of Art. 73, Nr. 1 of the Basic Law also covered the relations with the Occupying Powers31. But the Committee also stated that even if Arts. 32(1) and 73, Nr. 1 of the Basic Law were to embrace the relations of the Federal Republic with the Occupying Powers — rather than the very nature of such relations resulting in jurisdiction of the Federation — this could only be of significance for the allocation of jurisdiction between the Federation and the states. This does not, however, address the issue of whether agreements with the Allied High Commission are subject to Art. 59 of the Basic Law.
4. As a result, it must be concluded that agreements with the Occupying Powers as such do not fall within the scope of Art. 59 of the Basic Law, such that there is no need for Parliament to create the conditions necessary for ratification.
A different result is called for in cases where a foreign state that is an Occupying Power does not act in its capacity as such, i.e., where political relations unconnected from the fact of occupation are to be regulated. Examples of this include the Bundestag’s consent in the form of a federal law of the Agreement on Economic Cooperation between the United States of America and the Federal Republic of Germany32 and of the Federal Republic of Germany’s application for membership in the Council of Europe.33
It has been asserted that if Art. 59 of the Basic
Law were to be interpreted as not applying to agreements
coming under occupation law, then the system of
separation of powers in the Basic Law would be
shifted in favour of the Federal Chancellor and
the Federal Government. It should be pointed out
in this regard that policy making by the Federal
Chancellor is subject to parliamentary control,
which can culminate in a vote of no-confidence
under Art. 67 of the Basic Law.V.
In view of the foregoing, there is no need to address the issue of whether the Petersberg Agreement, according to its content, is a treaty that regulates the political relations of the Federation or relates to matters of federal legislation.
The application under Point 1 seeks a determination that the constitutional rights of the Bundestag were violated due to the Federal Government’s failure to present the Petersberg Agreement to the Bundestag for the latter’s consent in the form of a federal law; for the above reasons, this application is unfounded and is hereby dismissed on the merits. The same result is reached for the application under Point 2, insofar as it seeks a pronouncement that the Petersberg Agreement is a treaty that regulates the political relations of the Federation. The application under Point 2 further demands the determination that the Agreement is invalid "because it was not concluded by the Federal President and not consented to by the legislative bodies in the form of a federal law." Even if the Federal Constitutional Court were to give substantive approval to the applicant’s position, the Court nevertheless could not declare the Agreement to be invalid. Although § 67, third sentence, of the Federal Constitutional Court Act empowers the Court to decide on legal issues relevant to the interpretation of the provisions of the Basic Law, the sole determination that it is thereby able to make is whether the complained of action or omission violates the Basic Law.
The application is also dismissed for lack of any jurisdiction whatsoever by the Federal Constitutional Court. The Court’s power to make decisions is limited exclusively to the internal area and it is unable to decide on the validity of a treaty under international law.
To the extent that the application might be directed at a determination that the Agreement is invalid under internal German law, it is contained in the application under Point 1.
applications are thus in their entirety to be dismissed
on the merits.
In dismissing applications, the decisions of the Constitutional Court for the German Reich repeatedly included a phrase to elucidate the substance of the judgment.34 In its judgments of 6 March 1952 35 and 29 July 1952,36 the Federal Constitutional Court continued this practice. It seemed expedient to proceed in a similar fashion in the instant case.