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Case:
Bverfg No. 7 E 4, 157 1 BvF 1/55 "Saar Statute"
Date:
04 May 1955
Judges:
Dr.Wintrich, Ellinghaus, Dr.Scheffler, Dr.Heiland, Dr.Heck, Dr.Schol-tissek, Dr.Drath, Dr.Stein, Wessel, Ritterspach, Lehmann, Dr.Zweigert,
Copyright:
© Nomos Verlagsgesellschaft

HEADNOTES:

1. The Federal Constitutional Court upholds its case law according to which treaty laws within the meaning of Art. 49(2) Basic Law are in principle open to constitutional review in proceedings under Art. 93(1)(2)GG.

2. As long as the interpretation of an international treaty remains open, preference must be given in constitutional review of the law on the treaty to the possible interpretation among several that makes the treaty stand up to the Basic Law.

3. In interpreting an international treaty that regulates political relationships of the Federation, particular importance attaches to the initial political situation.

4. International treaties which gradually curtail occupation legal arrangements existing in a part of Germany cannot be termed unconstitutional where the state of affairs created by them is "closer to the Basic Law" than what existed previously. Restrictions of constitutional norms may be accepted in such treaties for a transitional period where they are directly connected with a settlement which in its overall tendency is aimed at coming closer to the situation of full accord with the Constitution. Essential constitutional principles may not however be affected.

Judgment of the First Senate of 4 May 1955 -- 1 BvF 1/55 --
in the proceedings for constitutional review of the Federal Act of 24 March 1955 concerning the Agreement on the Statute of the Saar signed in Paris on 23 October 1954 (BGB1. II p.295); - petitioner: one-third of members of the Bundestag.

DECISION:

The Federal Act of 24 March 1955 concerning the Agreement on the Statute of the Saar signed in Paris on 23 October 1954 (BGB1. II p.295) does not infringe the Basic Law.

EXTRACT FROM GROUNDS:

A.

The Saar territory, formed by the Versailles Treaty out of parts of Prussian and Bavarian territory, was after 1919 placed under the trusteeship of the League of Nations, which caused it to be administered by a governmental commission. The plebiscite on the final political destiny of the territory provided for in the Versailles Treaty was held in January 1935 and resulted in a large majority in favour of return to Germany. After 1 March 1935 the Saar territory again belonged to the German Reich and continued to constitute a special administrative district under direct Reich administration.

After the end of the war the Saar territory was part of the French occupation zone; in 1946 and 1947, on orders by the occupying power, it was extended by a fairly large number of communes from the provincial administrative districts of Trier, Koblenz and the Palatinate. Very soon efforts were begun by France to detach the Saar territory from administration by the Control Council of the four occupying powers and bring it under a special, exclusively French regime, the distinguishing features of which were complete political separation from Germany and close economic linkage with France. Border traffic between the Saar territory and Germany had already been made more difficult since 1946; in 1947 French currency was introduced in the Saar territory and in 1948 a customs union with France set up.
In December 1947 the Saar territory gave itself a Constitution of its own, through a legislative assembly elected for the purpose on an order from the occupying power. It says in the preamble and in several fundamental provisions that the future of the Saar territory should be based on economic linkage with the French Republic, monetary and customs union with it and political independence from Germany. With the entry into force of the Constitution the occupation regime in the Saar territory was officially regarded as ended. However, France maintains a High Commissioner, who safeguards France's interests in the Saar and ensures compliance with international provisions and observance of the basic principles of the Saar Constitution. For this purpose he has wide-ranging powers of intervention.

The constitutional, political and economic situation so created was subsequently, specifically in 1950, extended in detail by a number of special agreements of the Saar territory with France, the so-called Saar Conventions. The Conventions were amended in 1953 with the tendency towards strengthening the autonomy of the Saar territory.
France met with assent for its policy in the Saar territory from the Western Allies; Russia refused its assent. The Western Allies, however, repeatedly stressed that the final status of the Saar should be determined by a peace treaty or a substitute for it.

The Federal Republic of Germany has since 1949 never left any doubt that it would not recognize the regime created by France in the Saar territory. Particularly important here was the fact that, of the political parties newly formed in the Saar territory since 1946, those advocating return of the Saar territory to Germany were hindered in their activities and finally banned or (following adoption of a Parties Act) not allowed. The German side did not recognize elections carried out without the involvement of such parties as free democratic elections; correspondingly, democratic legitimation was denied the government of the Saar territory resulting from these elections. Since these disputes were putting a heavy burden on general Franco-German relationships, after 1951 endeavours were made, at the instance of the English-speaking powers, to regulate the Saar question in direct negotiations between the Federal Republic of Germany and France, in such a way that it would no longer constitute a focus of danger for internal peace in Western Europe. There resulted a political connection with the simultaneous negotiations on close political integration of European States and on the creation of a "European Defence Community". This led to the formation of the idea of "Europeanizing" the Saar, for which various plans were laid.

The negotiations embarked on following the failure of the EDC led ultimately to the Paris Treaties of October 1954; among them is the Agreement on the Statute of the Saar signed by the Federal Chancellor and the French Prime Minister on 23 October 1954, which aims at giving the Saar territory a "European status" in the context of the Western European Union. In the Agreement the two States agree that until the peace treaty there will in the Saar territory be a particular "statute" described in detail, supervised by a European Commissioner responsible to the Council of Ministers of the Western European Union. A plebiscite on this Statute is to be held in the Saar territory, which may adopt it or reject it. The two partners of the Agreement undertake not to question the Statute following adoption by plebiscite until the peace treaty, to uphold it and guarantee it and refrain from all intervention in the internal affairs of the Saar territory. They further give each other assurances that in their economic policy towards the Saar territory they will keep to definite guidelines and conclude economic agreements of a definite tendency both with each other and with the Saar territory. France and the Federal Republic of Germany wish in order to apply and maintain the Statute jointly to make particular proposals to European institutions and ultimately to arrive at a guarantee of the Statute by the governments of the United Kingdom and the United States of America. The provisions of a later peace treaty on the Saar territory are to be subject to approval by the Saar population in a second plebiscite.

B.

1. On 27 February 1955 the Bundestag adopted on third reading the Act relating to the Agreement on the Statute of the Saar signed in Paris on 23 October 1954. The Bundesrat decided on 18 March 1955 not to resort to the mediation committee. The Federal President executed the Act and promulgated it in the Federal Law Gazette under the date of 24 March 1955.

2. The petitioners, 174 Bundestag members, ask for the finding that the Act is formally and objectively incompatible with the Basic Law. The petition was submitted to the Bundestag, Bundesrat, Federal Government and all Länder governments for comment.

The Federal Government declared that it regarded the petition as inadmissible and also as unjustified.

...

C.

The petition is admissible... (detailed argumentation).

D.

Review of the Act for its formal and material compatibility with the Basic Law also covers the question whether the legislative organs of the Federation acted within their powers in enacting the act.

I. The Act was adopted regularly on the procedure provided for in the Basic Law. The petitioners have not raised any objections in this connection.

II. The petitioners have asserted that the treaty Act ought not to have been promulgated because the Saar agreement had been concluded as a governmental agreement, but should not have been concluded as such since it regulates political relationships of the Federation. The government had acted as an absolutely non-competent organ; the Agreement, and therefore also the treaty Act, were accordingly null and void. This flaw could not be cured by ratification, since it is as a governmental agreement that the Agreement ought to be ratified.

The objection does not apply. It is true that the Saar Agreement was reached in the form of a governmental agreement, namely by the heads of each of the governments (who were both simultaneously Foreign Ministers). The Federal Chancellor, however, subsequently secured plenipotentiary powers from the Federal President. The Federal Government then began the procedure of Article 59 (2) Basic Law; ratification by the Federal President was to follow, after conclusion of this procedure. The constitutionally prescribed form for an international treaty was thus maintained. Any excess that might have been committed by the procedure initially embarked on is cured by the fact that subsequently the procedures provided for in the Basic Law for treaties within the meaning of Article 59 (2) Basic Law was fully carried out.

III. In verifying the material compatibility of the Act with the Basic Law the Court made the following considerations:

1. The petitioners start from the fact that the Agreement was to give the Saar territory a European status and that this would detach the territory from its connection with the German State at least for the duration of that status. The Basic Law posited Germany as a State covering the whole German people within the frontiers of 31 December 1937, which continues to exist at present. Within this German State, the Basic Law had merely introduced a partial order and limited the powers of the constitutional organs. Accordingly, the latter could not act outside the competences conferred on them by the Basic Law, or beyond them. In particular, they were not entitled, in anticipation of powers that would be due to all-German constitutional bodies resulting from free elections, to impose treaties on German nationals living outside the area of application of the Basic Law and to that extent to bind the future complete German State pending a peace treaty.

The petitioners complain of infringement of Article 23 Basic Law, since the Agreement excludes accession of the Saar territory to the system of the Basic Law. Article 146 Basic Law is also claimed to have been infringed, since for an indefinite period, namely until a peace treaty, the Agreement prevented the maintenance and completion of the unity of Germany; it made the holding of free elections in the whole of Germany legally impossible. Moreover, conclusion of a peace treaty was held to depend on the uncertain assent of France, the partner in the Saar Agreement.

The petitioners further state that the Agreement infringes Article 20 (2) Basic Law by making a statute detrimental to the Germans in the Saar into an "integral part of Germany's internal organization", whereby the principle of self-government was suspended for them and foreign affairs and defence placed in the hands of a Commissioner who did not receive his office on the basis of free elections but was appointed by the Council of Ministers of the Western European Union. The petitioners concede that German constitutional organs must accept unilateral occupation measures as facts as long as redress is not in their power; they could and also should seek a modus vivendi in order through agreements to arrive at self-restrictions by the occupying powers. In the petitioners' view, however, German State organs are not legitimated to conclude an international treaty whereby in a part of Germany, even a part lying outside the area to which the Basic Law applies, the occupation regime is replaced by a statute that is in contradiction with the democratic principle.

The petitioners further object that the Agreement infringes the principle of the right to self-determination of peoples which they hold to be a general rule of public international law which by Article 25 Basic Law is an integral part of Federal law.

As regards German nationals in the communes of the Rhineland Palatinate detached from that Land by order of the occupying power and attached to the Saar territory, in the petitioners' view Article 144 (2) Basic Law has been infringed.

Finally, the petitioners state that the Agreement infringes fundamental rights. The constitutional organs set up by the Basic Law in the area to which it applies should exercise State power vis-à-vis all Germans and in relationship to the whole German people only in compliance with the fundamental rights in the Basic Law. Various provisions of the Agreement, in particular Articles VI (3), VIII and XII, however, allegedly infringe fundamental rights, particularly those of Articles 5, 8 and 9 Basic Law. The petitioners point out in conclusion that the Saar territory will once the Agreement comes into force, at any rate in the French view, become an autonomous subject of international law and thus be a foreign country with respect to Germany.

2. The Federal Government regards the petitioners' view as to the incompatibility of the Act with the Basic Law as wrong. It too stands for the position that the Federal Republic of Germany is identical with the German Reich in the frontiers of 31 December 1937. But the Federal Republic is not the whole, but merely represents it.

Article 23 Basic Law is in the Federal Government's view not infringed because that provision merely sets up an objective legal norm about the territory to which the Basic Law applies and does not contain subjective rights of German nationals to accession, outside the area to which the Basic Law applies. Moreover, in its view it is not the case that the Agreement "eliminates" a right to accession for the duration of the Statute. Nor is Article 146 Basic Law infringed, since this provision likewise merely contains an objective legal provision as to the day on which the Basic Law will lose its validity. Moreover, the provision is of essentially political significance and therefore not justiciable.
In the Federal Government's view the Agreement does not infringe Article 20 (1) Basic Law either. Instead, the Statute removes French rule in the Saar territory, expressed inter alia in the handling of the Saar's foreign relations and defence. Moreover, the international regime by a Commissioner is a commendable compromise solution for a provisional statute for a territory at dispute between two States. The fact that the population of the Saar will decide by a plebiscite on adoption or rejection of the Saar Statute rules out infringement of Article 20 (1) Basic Law.

Article 144 (22) Basic Law is in the Federal Government's view not infringed, for the mere reason that that provision refers solely to the special position of Berlin. The parts of the Rhineland Palatinate detached by order of the French occupying powers are not meant in Article 144 Basic Law, since that provision had in mind only those Länder and parts of Länder in which the Basic Law was operative pursuant to Article 23 Basic Law. The detachment of the communes of the Rhineland Palatinate had occurred before the entry into force of the Basic Law.

Nor does the Agreement, on the Federal Government's view, infringe any fundamental rights. These are to guarantee protection against measures of the German public authorities. But the public authority in the Saar territory is not German public authority. The Agreement is instead aimed at setting bounds to that authority. In this, account must be taken of the existing status of the territory. Moreover, it follows from an interpretation of the Agreement that the infringement alleged by the petitioners of the fundamental rights they mention does not arise. Finally, existing actual, and also legal, circumstances that the Federal Republic had to face up to in concluding the Agreement ought not to be overlooked.

The right to self-determination of peoples is not on the Federal Government's view based on a general rule of public international law so that for that reason alone there is no infringement of Article 25 Basic Law. Moreover, the plebiscite provided for in the Agreement is not to confirm the existing, unilaterally created state of affairs, but to give the population of the Saar the choice of deciding whether they wish to accept or reject the Statute which, in the Federal Government's view, improves their position.

3. In judging these submissions the Federal Constitutional Court starts from the following principles:

In interpreting the Agreement, the generally developed principles for interpreting international treaties are to be applied. According to these, every agreement is to be interpreted in such a way that the contracting parties can on the one hand attain through the treaty the objective they jointly aim at, but on the other hand need not see themselves as bound to a greater extent than they wish. If the content of international treaties is reviewed by the Constitutional Court for constitutionality, then possible interpretations conceivable in themselves given the vague, ambiguous formulations often used in such treaties are to be left out of account where they are remote. It would not be defensible to declare a treaty incompatible with the Basic Law because on a remote interpretation the Basic Law would in fact be infringed. It must be taken in principle that the political organs of the Federal Republic of Germany involved in arriving at an international treaty did not wish to enter into commitments contrary to the Basic Law, but instead that they verified compatibility with the Basic Law and will continue to have regard to a constitutional interpretation and application of the treaty. So long and in so far as interpretation is open, accordingly, among the various conceivable possible interpretations that whereby the treaty can stand up to the Basic Law is to be preferred.

Above all, the Federal Constitutional Court, when it has to measure an international treaty which regulates the political relations of the Federation (Article 59 (2) Basic Law) against the Basic Law, must not lose sight of the political position from which the treaty has arisen, of the political realities it seeks to shape or to alter. This is particularly important when, as with the Saar Agreement, this initial political situation is a state of affairs created in a part of Germany by the other contracting party in virtue of its occupational sovereignty and without subjection to higher-ranking norms. For here the problem arises of how far the Basic Law, which in its tenor generally ignores the occupation legal systems existing in Germany, but must of course assume and accept them as de facto existing and in part overlying the Basic Law, can at all supply the Court with an unambiguous criterion of judgement. The constitutional principle, indubitable in its self, that all exercise of public power in the Federal Republic of Germany is bound by the Basic Law (Article 20 (3) Basic Law) compels the question whether when international treaties of the nature indicated are concluded by the Federal Republic of Germany, only those agreements that are in full accord with the Basic Law are to be regarded as constitutional, or whether it is not instead sufficient for the measures provided for in the treaty to have been taken with an intention, and in themselves to have the tendency, to come closer to the fully constitutional position at least in so far as politically attainable, to do preliminary work towards its attainment. The Federal Constitutional Court considers it proper to answer this question in the latter sense. But if this is accepted in principle, there follows the further conclusion that as long as this basic tendency towards constitutionality is maintained, as regards the choice of individual measures provided for in the treaty, the treaty-making organs of the Federal Republic of Germany must have broad scope for political discretion, especially since the gamut of treaty solutions open to choice is in practice restricted to what is politically attainable vis-à-vis the given contractingparty.

These principles, taken together, can in practical outcome mean that political treaties that gradually curtail an occupation legal system without at the same time setting up a completely new order, intended to last, in their place largely fall within the province of what is not justiciable by a Constitutional Court. The constitutional borderlines drawn in this case too, transgression of which could have as a consequence the invalidity of the Treaty Act, lie where indispensable basic principles of the Basic Law are clearly infringed, for instance the principles mentioned in Article 79 (3) or 19 (2) Basic Law. Restrictions of other constitutional norms can be accepted for a transitional period, if they are in direct connection with the arrangement which in general tendency is directed at coming closer to the situation of full accord with the constitution. Up to the borderlines indicated, the treaty-making organs of the Federal Republic are responsible for the measures agreed by them in treaties only politically. A legal finding of unconstitutionality is excluded in principle by the fact that the situation created by the treaty is "closer to the Basic Law" than the previously existing one. If only a treaty arrangement in full accord with the Basic Law were to be counted as constitutional, that would mean advocating a constitutional rigorism which could be encapsulated in the following sentence: the bad may not give way to the better, because the best (or from this viewpoint, the sole good) is not attainable. This cannot be desired by the BasicLaw.

4. Proceeding from the principles developed above to review the constitutional objections raised by the petitioners against the Saar Agreement,it results that:

a) The Saar Agreement is a treaty which regulates the political relations of the Federation within the meaning of Article 59 (2) Basic Law. This follows from the mere fact that the Agreement frees Franco-German relations, which will always be of special importance to German foreign policy, from the existing burden of the Saar question and at the same time - by tying the Saar Statute in with the Western European Union - brings about closer integration of the Western European States in a specific case, with inclusion of Germany. The initial political situation here presented the attempt at a treaty arrangement with particular difficulties. At the end of the Second World War the Saar territory indubitably belonged to the German Reich. France, in virtue of its occupation authority, detached this territory from its occupation zone and set up a special regime there, under which the Saar territory has in the course of subsequent developments separated itself into a largely autonomous entity. In 1947 it received a Constitution which stated even in its preamble that the people of the Saar "imbued with the recognition that its existence and development can be ensured through organic incorporation of the Saarland into the economic area of the French Republic" based its future on economic integration with France and monetary and customs union with it; that included political independence from the German Reich. This is repeated in other provisions of the Constitution. Article 103 of the Constitution explicitly forbids constitutional amendments that contradict its basic idea, that is, it regards the system set up as a lastingsolution.

The German claim to the Saar territory as a part of Germany in the 1937 frontiers had constantly to come up against this de facto existing situation in the Saar territory, externally legitimated by formal legal norms. It must hence be clear how hard it must have been to arrive at treaty agreements that could more or less meet the views of both sides. But if only because of its commitment to safeguard all German interests, the Federal Republic of Germany could not be a passive onlooker at developments in the Saar territory, since this would have had a steadily advancing alienation of Germany from the territory as a consequence. A treaty arrangement was also desirable because the Federal Republic of Germany, despite its basic claim on the Saar territory for Germany, does not deny special economic interests of France in the Saar though these interests need clear bounds set on them vis-à-vis the German interests, if only with regard to the further development of the Saar's economy.
From all this there follows first of all a political legitimation of the Federal Republic of Germany to conclude a Saar agreement. Nor is this denied by the petitioners, who have explicitly stated that they do not wish to give ventto political "imobilism".

Legally too, the Federal Republic of Germany is legitimated to conclude the agreement. This could, though, be doubted on the ground that here part of Germany would be the object of a treaty arrangement, so that the agreement would contain a disposal of German territory, something to which the Federal Republic of Germany was not empowered. But the Agreement is not to be understood in thatway.

If it is simply said that Germany and France are jointly "giving" the Saar territory a new Statute, this does not strike at the heart of what has happened in terms of international law. In fact the Federal Republic of Germany and France have merely agreed that pending a peace treaty which is definitively to regulate the legal position of the Saar, a state of affairs is created to which both States agree. France will take steps to see that everything necessary is done for the Constitution of the Saar territory to be brought in line with the position agreed on by both contracting parties. But the decisive point is that the state of affairs to be brought about by the Agreement, the so-called Statute, cannot enter into force without or against the will of the Saar population, which will have to decide on this in a plebiscite. It is therefore not the case that the Federal Republic of Germany is directly participating in creating the new order in the Saar territory. In concluding the Agreement it commits itself merely to not raising any objection if France and the Saar territory, in collaboration determined in detail by the de facto relations existing between them, bring about the Statute providedfor in the Agreement.

Nor does the Agreement contain any recognition, which might be incompatible with this interpretation, of the situation taken as a basis, set up by France in the Saar territory and in part continuing toexist.

Firstly, it is indisputable that the Agreement at no point explicitly makes any such recognition. Specifically, Article IV contains no recognition of the system of government existing in the Saar territory, but demarcates the competences between the European Commissioner and the authorities existing in the Saar territory. If Article VIII establishes a commitment by the Federal Government to maintain and guarantee the Statute until conclusion of a peace treaty, then this guarantee refers only to the provisions contained in the tenor of theStatute itself.

But no such recognition can be deduced from the fact of concluding the Agreement and its overall content either. By the nature of things the actually existing circumstances in the Saar territory had to be taken as a starting point if a treaty arrangement was to be possible at all. Seeing this as legal recognition of the circumstances is in no way justified, especially since it would contradict the frequently expressed wish of the Federal organs involved, known also to the French contracting party (cf. e.g. the exchange of letters between the Federal Chancellor and French Foreign Minister Schuman of 18 April 1951 on the occasion of the establishment of the European Coal and Steel Community - BGBl. 1952 II p.490; Bundestag Resolution of 27 February 1955 - record of the 72nd sessionp.3932, 3936).

Accordingly, the fact that Article XII provides for economic agreement between the Federal Republic of Germany, France and the Saar territory need not lead to the conclusion that the Saar territory is being recognized as a subject of international law. It is not infrequently the case in international legal transactions that such primarily technical agreements are concluded while mutually divergent legal standpoints are maintained. The fact that this was the proceeding with the Saar Agreement too is therefore not in contradiction with general principles of law or with practice in international law. Explicitly including a protestation of rights in this sense in the Saar Agreement was unnecessary because the contracting party was acquainted with the Federal Government's legal view from earlier statements (cf. BVerfGE 1, 372 [387]). Accordingly the Federal Republic of Germany did not in the Agreement "dispose" over the Saar territory, something of which it would indeed not have been legallycapable.

Nor is Article 23 (2) Basic Law infringed by the Agreement. By this provision the Basic Law is to be put into force in other parts of Germany on their accession. But this does not mean assuming a constitutional guarantee that German territories outside the area to which the Basic Law applies can at any time in fact accede. All that can be derived from Article 23 Basic Law, second sentence, is a commitment by the Federal Republic not to restrict or hamper possibilities of accession by "other parts of Germany". But here the actual state of affairs must not be left out of account, which caused and continues to cause the absence from the area to which the Basic Law applies of particular German territories. Whether, having regard to this actual situation, the Saar Agreement has in fact rendered the possibility for the Saar territory to accede to the area to which the Basic Law applies in the transitional period up to the conclusion of peace more difficult is a question of political evaluation outside the judgement of the Constitutional Court. Unconstitutionality could at most be found if such hampering were obvious. But that is not the casehere.

For the same reason, it is also not so that Germans in the Saar are by the Agreement excluded from participation in all-German elections. If the population of the Saar territory is not to be able to take part in future in all-German elections, this is because of, not the Saar Agreement, but the actual situation which already existed before the Agreement because of the unilateral measuresby France.

All these considerations mean that the Saar Agreement cannot be seen as legitimation of the existing de facto power position in the Saarterritory.

The petitioners have laid particular stress on the fact that the settlement in the Saar Agreement, despite the formal limitation "until the peace treaty", de facto constitutes a definitive solution. It is indeed the case that the Saar Statute cannot following adoption in the plebiscite be questioned until the peace treaty. But legally this is a clear time limitation. On a loyal interpretation of the Agreement, it expresses the fact that both contracting parties take it that a peace treaty will in due course come about, containing a settlement of the Saar question. The petitioners are of the opinion that France might at a given moment not want such a peace treaty and can in any case prevent it. The Federal Government does not share this preoccupation. Such forecasts of future political developments are outside judgement by the Constitutional Court. Since the provisional character of the Statute follows unambiguously from its tenor, the Agreement cannot be unconstitutional for the reason that the petitioners express the political preoccupation that the other contracting party will prevent or hamper implementation of this clause in the treaty by its futurepolitical conduct.

There is no infringement of Article 144 (2) Basic Law by the Saar Agreement. The detachment of communes in the Rhineland Palatinate and their annexation to the Saar territory had already been accomplished by the French occupying power when the Basic Law came into force. Apart from the fact that it is questionable whether Article 144 (2) Basic Law at all refers to other parts of the Federal Republic of Germany than Berlin, its mention of Article 23 Basic Law can mean the Rhineland Palatinate only in the area it had when the Basic Law came into force.
b) A further objection to which the petitioners attach particular importance is to the effect that the Agreement infringes fundamental rights. Here the petitioners' view that the Germans in the Saar territory are "Germans" within the meaning of Article 116 (1) Basic Law, that accordingly they are vis-à-vis the public authority of the Federal Republic of Germany entitled to all fundamental rights that the Basic Law guarantees to Germans, iscorrect.

The Agreement contains no provisions directly affecting the sphere of basic rights of citizens, but only obligations between one State and another. Interferences with fundamental rights could therefore arise only if on the basis of the undertakings in international law in implementation of the Agreement measures within the State to restrict fundamental rights had to be taken. This isnot the case.

Specifically, Article VI of the Agreement entails no such obligation as regards political freedom of expression. This provision obliges the contracting parties not to engage in any intervention activities in the Saar territory. The fundamental rights guaranteed to German citizens in the area to which the Basic Law applies are not at issue at all. But even the right of Germans in the Saar territory to express their opinions freely is not unconstitutionally restricted by Article VI. There is agreement between the two governments that the freedom of political opinion is to be "total" (according to the letter from the Federal Chancellor to the Foreign Minister of the French Republic of 14 March 1955 presented by the Federal Government). The agreement confirmed in that letter, that all political action is to be excluded which may directly or indirectly adversely affect the principle of the Statute, that is, smooth operations and internal peace along the Saar, may entail a certain restriction on the free expression of opinion in the Saar territory. But however this letter may be interpreted in detail, there can be no question of this fundamental right being affected in its essential core. In any case, Article VI opens a prospect of improvement over the existing position; for the political parties which according to their programme aim at reunifying the Saar territory with Germany are at present not permitted there, whereas in future they will not be subject to a requirement for official approval and will therefore be able to express their opinions up to the, admittedly vague, boundaryof "action".

Article XII E of the Agreement does not contain any impermissible interference with the property of others, since no disposal of mine ownership belonging to the German Reich can be seen init.

Finally, Article 16 (2) Basic Law is not infringed either by the fact that Saargebiet is detached by the Agreement from association with the German State and thus becomes a foreign country, which might have practical effects on extradition and the right of asylum. This would be true if the Saar territory had obtained an autonomous European status, as was provided, for instance, in the van der Goes van Naters Plan. But such a solution was deliberately avoided in the Saar Agreement. If Article I states that the object of the solution envisaged is to give the Saar territory a European statute within the framework of the Western European Union, this has only the meaning that provisions of the Statute, specifically the creation of the Commissioner responsible to the Council of Ministers, are set up within the framework of the Western European Union. At any rate, the interpretation of Article 16 (2) Basic Law used to date in the Federal Republic will not be affected by the Agreement, to the extent that the Saar territoryis concerned.

5. Looking at the Agreement as a whole over and above these details, the following pictureemerges:

A situation set up unilaterally by an occupying power following the political collapse of the German Reich is only accepted in order through treaty negotiations to find a settlement starting from it which - as far as politically attainable - brings the status of the Saar territory close to the conceptions of the Basic Law. If as the petitioners maintain a situation in full accord with Article 20 (2) Basic Law has not been achieved here, it can nevertheless not be overlooked that the Agreement makes possible clear improvements in this direction by comparison with the existing state of affairs. Specifically, the basic idea of that constitutional norm has been taken into account to the extent that not only is the Statute made subject to a plebiscite but the provisions of a future peace treaty too about the Saar Territory will be subject to approval by plebiscite. One of the improvements lies in the fact that in this territory at dispute between two States the overwhelming influence of one contracting party is neutralized by the fact that very important functions hitherto exercised by it are handed over to a EuropeanCommissioner.

If the treaty-making organs of the Federal Republic declare that other and better solutions to the Saar question were politically not obtainable, this must be sufficient for the Federal Constitutional Court as long as the solutions agreed do not go beyond the limits of discretion. Since this as has been shown is not the case, it cannot be said that the agreement contradicts the Basic Law. Accordingly, even though political criticisms of the Agreement may be possible and may be made, this cannot be of any significance for the sole question to be decided by the Federal Constitutional Court, namely the legal one of the constitutionality of the Act of 24 March1955.

Judges: Dr.Wintrich, Ellinghaus, Dr.Scheffler, Dr.Heiland, Dr.Heck, Dr.Schol-tissek, Dr.Drath, Dr.Stein, Wessel, Ritterspach, Lehmann, Dr.Zweigert,

 

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