An international treaty does not regulate political relations within the meaning of Art. 59(2) of the Basic Law when it simply deals quite generally with public affairs, the good of the community or affairs of state. Instead, in addition to these conditions, such a treaty must also substantially and directly affect the existence of the state, its territorial integrity, its independence, its position or weight among states, or the order within the community of states.
The content or purpose of a treaty within the meaning of Art. 59(2) of the Basic Law must be directed at the regulation of the political relations with foreign states. The treaty itself must regulate or purport to regulate the political relations with foreign states and not have merely a secondary, perhaps even unintentional or unexpected bearing on such relations. A treaty that only has an important bearing on the internal political, economic or social conditions of the state does not fulfill these requirements.
Whether a treaty regulates political relations can only be determined in the individual case by reference to the special circumstances and the actual political situation of the parties to the treaty.
In resolving the question of whether a treaty relates to matters of federal legislation, the enumerated powers found in the Basic Law are not controlling. Decisive is, instead, whether in the actual case an implementing act with the participation of the legislative bodies is necessary.
A treaty that requires an ordinance in order to be implemented relates to matters of federal legislation when the ordinance cannot be issued without the participation of a legislative body.
Powers delegated by the Occupation Authority are not able to extend the Government's constitutional authority.
The consent or participation of the legislative bodies pursuant to Art. 59(2) of the Basic Law is, by its very nature and content, an act of government in the form of a federal law, which can only be accomplished by a formal law and not by an ordinance of the Government.
Under Art. 80 of the Basic Law, the Federal Government can only be authorized to make law in the form of ordinances but not to carry out acts of government for which the Basic Law prescribes the form of a law.
Judgement of the Second Senate of 29 July 1952 -- 2 BvE 2/51 --
in the constitutional proceedings relating to the German-French Commercial Treaty of 10 February 1950; -- Applicant: the Social-Democratic Party (SPD) of the Bundestag1, represented by its 1st Chairman, Member of Parliament Dr. Kurt Schumacher, in Bonn; Respondent: the Federal Government, represented by the Federal Chancellor, in Bonn.
The application is hereby dismissed on the merits.
By neglecting to submit the German-French Commercial Treaty2 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.
EXTRACT FROM GROUNDS:
On 10 February 1950, the Government of the Federal Republic of Germany concluded in Paris a Trade Agreement and a Payments Agreement with the Government of the Republic of France. These Agreements were set forth in the two Main Treaty Documents, the Additional Protocols and other writings and were published in the Bundesanzeiger on 14 February 1950, Nr. 31 under the designation "German-French Commercial Treaty."
1. In the Trade Agreement, each party to the Treaty obligates itself to permit goods produced in and originating from the territory of the other party to be imported without any restrictions.
For certain goods, however, quotas were set, with both parties obligating themselves to grant import and export licenses within the scope of these quotas; in addition, the period of import and export was described in detail, and technical matters were agreed upon. . . .
In order to facilitate payments between the two currency areas, the Payments Agreement regulated the transfer of German Marks and French Francs in compliance with the respective foreign-exchange regulations (Art. V). The Bank of the German States3 and the Bank of France4 were to sell one another German Marks and French Francs at a rate to be periodically determined by reference to the exchange rate for U.S. Dollars. A number of appendices to the Payments Agreement dealt with technical details. . . .
2. The Trade Agreement entered into force on 10 February 1950; . . . the Payments Agreement followed on 13 February 1950. . . .
3. In the Bundestag, the German-French Commercial Treaty was discussed together with the issue of the extent to which trade agreements require that a consenting law5 be proposed in the Bundestag pursuant to Art. 59(2) of the Basic Law. . . . (elaboration by the Court).
The Federal Government did not propose in the Bundestag a consenting law to the German-French Commercial Treaty of 10 February 1950.
In written pleadings of 4 July 1951, submitted to the Federal Constitutional Court on 12 July 1951, the Social-Democratic Party of the Bundestag brought an action against the Federal Government. It petitioned:
that it be determined
1. that the Federal Government violated the rights made available to the Bundestag in Art. 59(2), first sentence, of the Basic Law, in that it neglected to submit the Trade and Payments Treaty, concluded between the Government of the Federal Republic of Germany and the Government of the Republic of France on 10 February 1950 (published in the Bundesanzeiger of 14 February 1950, 2 Nr. 31), to the Bundestag for its consent in the form of a federal law,
2. that so-called commercial treaties that fundamentally regulate trade and payments relations between the Federal Republic of Germany and another state, and, in particular, set up import and export quotas, are political treaties within the meaning of Art. 59(2) of the Basic Law and require the participation, in the form of a federal law, of the bodies competent for federal legislation.
The Federal Government, represented by the Federal Minister for Economics, petitioned:
1. that it be determined that the Federal Government did not violate Art. 59(2), first sentence, of the Basic Law, in that it neglected to propose a consenting law for the German-French Commercial Treaty concluded on 10 February 1950 (Bundesanzeiger Nr. 31 of 14 February 1950);
2. a) that the application under Point 2 be dismissed on procedural grounds,
b) alternatively, that it be determined that commercial treaties that merely regulate trade and payment relations between the Federal Republic of Germany and another state do not represent treaties that regulate the political relations of the Federation.
. . .IV.
The Application under Point 1 and the Applications of the Federal Government under Points 1 and 2 a) are admissible. . . . The Application under Point 2, just as the Federal Government's Application under Point 2 b), is to be viewed not as a formal application but rather as a suggestion for a decision pursuant to § 67, third sentence, of the Federal Constitutional Court Act. . . . (elaboration by the Court).
According to Art. 59(2) of the Basic Law, treaties with foreign states "that regulate the political relations of the Federation or relate to matters of federal legislation" require the consent or participation, in the form of a federal law, of the bodies competent for federal legislation.
The German-French Commercial Treaty is not a treaty that regulates the political relations of the Federation.
1. A treaty does not become a political treaty within the meaning of Art. 59(2) of the Basic Law simply by way of the fact that it deals quite generally with public affairs, the good of the community or affairs of state. If this were the case, then every treaty would be a political treaty, such that the limitation found in Art. 59(2) would be devoid of meaning. Instead, in addition to the above-mentioned conditions, such a treaty must also directly affect the existence of the state, its territorial integrity, its independence and its position or prominent weight within the community of states. Particularly to be considered political treaties in this sense are those that are directed at asserting, securing or expanding one state's position of power vis-à-vis other states. These include, above all, alliances, treaties of guarantee, agreements on political cooperation, non-aggression pacts, treaties of peace, neutrality and disarmament, arbitration treaties and similar international agreements.
The history of Art. 59(2) of the Basic Law shows that it was formulated in such a way as to allow an interpretation that does justice to constantly changing conditions. In contrast to the Weimar Constitution6, the more comprehensive terminology in the Basic Law has extended beyond "alliances" the category of treaties requiring legislative consent. On the other hand, in contrast to the Draft Constitution drawn up at Herrenchiemsee,7 the Basic Law is substantially restricted.
The constitutions of other states refer in similar contexts to "treaties of political content,8" to "international political treaties"9 or to "trattati internazionali che sono di natura politica."10
Art. 59(2) of the Basic Law only requires the participation of the legislative bodies for those treaties that regulate the political relations of the Federation. "Political relations" must substantially and directly affect the existence of the state, its position and weight within the community of states, or the order of the community of states.
The content or purpose of a treaty within the meaning of Art. 59(2) of the Basic Law must be directed at the regulation of the political relations with foreign states. The treaty itself must regulate or purport to regulate the political relations with foreign states; it is insufficient when the treaty has merely a secondary, perhaps even unintentional or unexpected effect on such relations. Even though a treaty may be of political significance for the Federal Republic simply because it has an important bearing on the internal political, economic or social circumstances of the country, it does not become a "political treaty" within the meaning of Art. 59(2) of the Basic Law.
Under earlier international law doctrine, commercial treaties were generally not regarded as political treaties. This doctrine's blanket repudiation does not, however, correspond to the reality of modern-day international relations. Under certain circumstances, a commercial treaty may have just as much a political character as a treaty of alliance. This might be the case, for instance, when by concluding a commercial treaty, the parties seek to expand their national economies in order to strengthen their mutual economic position in international competition. In such a case, "market" relations -- in and of themselves, non-political -- may develop into "power" relations. A state's position of power and hegemony is today in all likelihood able to be more strongly influenced by the conclusion of a commercial treaty than by the conclusion of a treaty of neutrality or guarantee or a non-aggression pact. What is meant by "power" in this context is not just the power position of states in the struggle for political hegemony but also, generally speaking, their relative weight within the community of states.
Whether a treaty is political in the above-described sense can only be determined in the individual case by reference to the special circumstances and the actual political situation of the Federal Republic and the other parties to the treaty.
For this reason, it is not possible to follow the suggestion of the parties and to provide a general answer to the issue of whether so-called commercial agreements that regulate trade and payments relations between the Federal Republic and another state are political treaties within the meaning of Art. 59(2) of the Basic Law.
2. The applicant views the German-French Commercial Treaty as being a political treaty within the meaning of Art. 59(2) of the Basic Law. It claims that the Treaty is comprised of the following elements:
a) a political decision to enter into relations with France and to cultivate these relations particularly in the economic sector;
b) a political decision to liberalize German-French commercial relations;
c) an option for the West and preparations for the integration of Europe;
d) a recognition that the Saar Territory is no longer part of the German state;
e) the continued development of a wide-ranging system of trade treaties, as desired by the Federal Government.
If this assessment of the Commercial Treaty is correct, then it would be a political treaty within the meaning of Art. 59(2) of the Basic Law. However, an examination of the actual circumstances shows that no true political decision was made.
a) The Federal Government was in no position to make a true political decision at the time the Treaty was concluded. According to Nr. 2(c) of the Occupation Statute,11 the Occupying Powers expressly reserved the power over foreign affairs, including international agreements made by or on behalf of Germany. In the Directive on foreign trade and the negotiation of trade and payments agreements12, the Allied High Commission ruled that for foreign trade and in the negotiation of trade and payments agreements, certain principles and procedures are to be followed, "insofar as the High Commission does not give directions to the contrary." With this limitation, the Federal Government was generally to conduct the negotiations, "subject, however, to controls that can be determined from time to time by the High Commission." The Federal Government was placed under the duty, among others, promptly to inform the High Commission of all negotiations, to submit all documents, to permit observers of the Allied High Commission to take part in all negotiations, and promptly to submit the initialled agreements to the High Commission prior to formal signature. Nr. 3(d) of the Directive rules:
Documents thus initialled do not in any way establish a binding international obligation until the High Commission has informed the Federal Government whether it has any objections to the signing of these documents.
Nevertheless, these far-reaching instructions and provisos did not entirely satisfy the Allied High Commission. On the contrary, particular emphasis was placed on the fact that the provisions of the Directive were not able "to be interpreted in such a way as to entail a relinquishment or limitation of the powers reserved for the Occupation Authorities pursuant to the Occupation Statute." In view of this Directive, it is more proper to speak of a function delegated to the Federal Government rather than of an authorisation, but in no event can it be said that the Federal Government is authorised to decide freely on the formation of political relations.13
b) The French-German Commercial Treaty does not represent a decision as to trade policy. It was concluded under the Directive of 30 November 1949 in continuation of the Allied High Commission's policy for the Federal Republic. The numerous similar trade agreements concluded in 1950 demonstrate that the German-French Commercial Treaty in no way sought to introduce a special trade policy for France but rather that the Agreements fell in line with the policy of trade liberalization pursued with respect to all states. Particularly as regards the Trade Agreement with France, which was extended to 31 October 1950, the Federal Minister of Economics announced in the Bundesanzeiger, Nr. 167, of 31 August 1950, that:
The bilateral liberalization measures undertaken thus far continue in effect, although they will shortly be replaced by multilateral liberalization measures.
The goal of this economic policy was the liberalization of trade generally, not just with regard to specific countries. The special provisional agreements are therefore not to be classified as preferential treatment for individual countries and do not fix the Federal Republic's political position.
Only in the event that an unwavering system of trade and payments barriers were in place, which was then violated with regard to one state, could it be said that a political treaty had been concluded. However, when currency shortages -- rather than political reasons -- lead to the progressive elimination of trade restrictions in the course of a general liberalization trend, then the numerous, short-term interim solutions are not to be considered decisions on the Federal Republic's political position vis-à-vis the states involved.
c) The German-French Commercial Treaty contains neither an option for the West nor a declaration on the "integration" of Europe. It belongs to the multitude of trade treaties, trade and payments agreements and additional protocols that were concluded in 1950 and the years thereafter with European and non-European states.
For example, on 18 April 1950, in continuation of the trade agreement concluded on 31 March 1949 by the Military Government on behalf of Germany with Yugoslavia, an additional protocol was agreed upon between the Federal Republic of Germany and the Federal People's Republic of Yugoslavia.14 A further trade agreement concluded with Yugoslavia on 1 November 1950 15 is, according to the Preamble, "based on the desire to reinforce and expand mutual commercial relations." It is impossible to view this agreement as containing an option; the same goes for the protocol on new lists of goods, initialled on 21 December 1950 within the scope of a new trade agreement with Czechoslovakia.16
The Written Report of the Committee for the Occupation Statute and Foreign Affairs of 4 April 1952, which centered on the application by the Social-Democratic Party with regard to trade with the East, was deliberated in the 207th Session of the German Bundestag on 6 May 1952.17 Speakers of the various parliamentary parties emphasized that in establishing proper trade relations with the Soviet Union and developing East-West trade, at issue were mundane commercial matters and not great political goals.
d) The Agreement on payments transactions does not contain the recognition that the Saar Territory lies outside the Federal Republic and no longer is a part of the German state. According to Art. X(h) of Act Nr. 53 (as amended) on Currency Restrictions and the Control of Traffic in Goods,18 the term "Germany" means the territory of the "German Reich" as it existed on 31 December 1937, i.e., including the Saar Territory. Under Art. X(g), however, only the 11 states of the Federal Republic are included in the currency territory, such that a currency regulation was necessary for trade with the Saar Territory. The Payments Agreement is to apply, according to Art. I, to the "currency territory of the German Mark" (within the meaning of Act Nr. 53). Although frequent reference is made in the Additional Protocol to the Payments Agreement to payments transactions and to the planned agreement between the Federal Republic and the Saar Territory, it could have been declared that this was not the legal intention of the parties. On the other hand, it is unnecessary in interstate commerce constantly to reiterate for every contact the same political reservations, which had already been explained to the other party to the treaty with sufficient clarity. In light of the fact that the content of the Payments Agreement is solely concerned with foreign exchange matters and that a connection with Act Nr. 53 plainly exists, it is impossible to find in the Commercial Treaty an international recognition of a political secession of the Saar Territory from Germany.
e) Finally, the applicant emphasizes that the German-French Commercial Treaty is a part of the Federal Government's desired "wide-ranging system of trade treaties," i.e., a system that, in the applicant's view, radically changes the economic and social conditions in the Federal Republic and determines the Federal Republic's position in the circle of other states. To be sure, political effects are attained by consistent isolated actions. But this does not mean that a given action -- in and of itself, not in need of consent -- thereby requires consent. Even as part of a systematic policy, the German-French Commercial Treaty remains a legally independent treaty, which as a single unit is subject to review by the Federal Constitutional Court.
For the foregoing reasons, the German-French Commercial Treaty does not have the significant political content and purpose that the applicant seeks to attribute to it. From its content, purpose and effect, it is not a treaty that, within the meaning of Art. 59(2) of the Basic Law, regulates the political relations of the Federal Republic with France. On the contrary, it is composed of technical agreements.
The German-French Commercial Treaty is not a treaty that relates to matters of federal legislation.
1. In resolving the question of whether a treaty relates to matters of federal legislation, the enumerated powers listed in the Basic Law are not controlling. These are spelled out in Art. 73, which gives the Federation the exclusive power to legislate in matters of, inter alia: foreign affairs; currency, money and coinage; the unity of customs and commercial territory, treaties on commerce and on navigation, the freedom of movement of goods, and the exchange of goods and payments with foreign countries, including customs and other frontier protection (Art. 73, Nrs. 1, 4, 5). Decisive is, instead, whether in the actual case an implementing act with the participation of the legislative bodies is necessary.
The applicant itself, in agreement with prevailing doctrine, subscribes to the view that the content of a treaty is only a matter of federal legislation when a federal law is required in order to implement the treaty, i.e., when the Federation assumes obligations under the treaty that can only be fulfilled via the enactment of a federal law.
The rule found in Art. 59(2) of the Basic Law is modelled on Art. 45(3) of the Weimar Reich Constitution, as well as on Art. 11(3) of the Reich Constitution of 16 April 1871. Unanimous opinion held treaties that relate to matters of Reich legislation to be solely those that had to be transformed into internal law, which could only result by way of legislation.
Just as with the Reich Constitution of 1871 and the Weimar Reich Constitution, Art. 59(2) of the Basic Law also considers treaties that relate to matters of federal legislation to be only those treaties "whose content -- to the extent that, rather than an international agreement, an internal rule was involved -- belonged to matters of legislation and not to those of public administration."19 At issue is the separation of powers between the legislative and executive branches. The Government is not to assume international obligations without the participation of the legislative bodies when it is unable to fulfill these obligations under its own competence and without action by the legislative bodies. Otherwise, in the absence of consent by the legislature to international obligations thus assumed, their fulfillment might be jeopardized. This is to be avoided by way of the requirement of consent.
From the sense and purpose of the provision, it is obvious that the issue is not one of federal versus state legislation or of law versus ordinance; rather the issue is one of the separation of powers between the legislative bodies and the Federal Government.
Therefore, a treaty that requires an ordinance20 in order to be implemented relates to matters of federal legislation when the ordinance cannot be issued without the participation of a legislative body.
2. Nevertheless, the Federal Government was able to implement the Commercial Treaty under its own power without the issuance of a law or of an ordinance requiring the participation of other organs.
a) For the foreign-exchange transactions provided for in the Payments Agreement, a new law was not required. By way of Art. II of the First Implementation Ordinance on Act Nr. 53 of the Military Government (as amended) on Currency Restrictions and the Control of Traffic in Goods21 and by way of Order Nr. 140 of the French High Commissioner,22 the Federal Government was, pursuant to Art. I(2) of Act Nr. 53, "determined to be the authority that, subject to provisions to be issued by the Military Government, is responsible for granting authorizations and for issuing regulations relating to the passage of controlled resources into and out of the territory."
On the basis of this authorization by the Occupation Authority, the Federal Government is able to grant the "authorizations" provided for under Act Nr. 53 when these are necessary in order to implement the German-French Commercial Treaty.
When the applicant, on the contrary, emphasizes that the Federal Government may not rely on an authorization by the Occupation Authority to the detriment of the Constitution, it is of course correct that powers delegated by the Occupation Authority are not able to extend the Government's constitutional authority. "The independence of the Occupation Authorities vis-à-vis the German Constitution is not transferable to the Federal Government."23 When the Occupation Authority decides not to reserve for itself a certain area of legislation, then this has the result that constitutional competences, thus relieved of any limitations by the Occupation Authority, become once again applicable to the full extent, such that the constitutional order of powers and the competences set up by the Basic Law must be observed. In other words, if the Military Government releases a certain area, the legislative process prescribed by German constitutional law must be followed.
However, this was not the case here. The Military Government did not release the area of foreign-exchange law for German legislation but rather merely empowered German authorities as the implementing organ in the execution of occupation law to grant authorizations within the scope of Art. I(2) of Act Nr. 53.
Although for the federal-state relationship, Art. 73, Nr. 4, of the Basic Law lists currency (which also includes foreign-exchange law) as falling under an area where the Federation has exclusive power to legislate, this federal competence has thus far not become operative, since foreign-exchange law continues to remain subject to the power of the Occupation Authority. In other words, it is not affected by Art. 59 of the Basic Law. In the area of foreign-exchange law, the Bundestag could not itself have enacted a law or authorized the Government to issue an ordinance, nor could it have provided legally relevant consent pursuant to Art. 59(2) of the Basic Law. The power reserved by the Occupation Authority precluded any internal legislation on foreign exchange.
It was impossible for the Bundestag to amend foreign-exchange legislation. Such was also unnecessary. Arts. II-IV of the Payments Agreement deal not with the obligation to issue foreign-exchange authorizations but rather with the obligation of the Bank of the German States to conclude certain transactions. In Art. V, the parties to the Agreement declare their "desire" to authorize the transfer of all current payments, although they make the transfer facilitations that have already been agreed upon dependent on the "observance of their respective foreign-exchange provisions."
The applicant has asserted its misgivings with regard to the fact that the power delegated under Act Nr. 53 to grant collective authorizations is insufficient. But this is irrelevant, for Art. V of the Payments Agreement does not contain an obligation to issue collective authorizations but rather leaves open the possibility of authorizing the current payments for import and export transactions individually.
b) The applicant views as an encroachment in an area of legislation the fact that the Trade Agreement allegedly sets up the obligation "not to undertake a change in the tariff rates." Such an obligation does not result from the Agreement. According to the notes appended to the Trade Agreement as Annexes 11 a and 11b, certain exports are merely made dependent on all customs offices applying the uniform federal tariff rate for the pertinent goods.
c) The Federal Government was empowered to issue the provisions of the Trade Agreement on the import and export of goods, as well as on the setting of quotas and exemptions for these. § 106 of the Customs Act of 20 March 1939,24 empowers the Government quite generally "to issue prohibitions and limitations for trade in goods across the borders of the Reich or across customs borders."
The Commercial Agreements are thus able to be implemented without legal provisions having to be issued with the participation of the legislative bodies.
d) The applicant does not so much direct its energies toward the fact that certain legislative provisions should have been amended or that certain new provisions should have been promulgated to implement the Treaty. Rather, it primarily objects that the power to set quotas and grant exemptions with regard to foreign exchange and goods, which is supposed to serve to protect the currency, was abused by the Government as a means of directing foreign-trade policy. It further asserts that the foreign-exchange provisions of the Occupation Authority, which were issued for entirely different purposes, have been impermissibly employed by the Government as an instrument of trade policy. It thus has allegedly followed an alien purpose that is not covered by law or by the power that has been delegated to it.
The applicant's view that Act Nr. 53 only serves to protect the currency but does not refer to trade in goods fails to recognize the inseparable association between foreign-exchange control and export and import, between currency policy and trade policy. Act Nr. 53 does not contain any earmarkings for special purposes with regard to the allocation of foreign exchange. For this reason, the law is not put to improper ends when the Federal Government allocates existing foreign exchange not simply from the standpoint of protection of the currency but also from that of promotion of foreign trade. The Federal Government, therefore, is not to be forbidden from pursuing, within the scope of the law, trade policy with the instrument of foreign-exchange control. Moreover, commercial agreements such as those before the Court are at the same time a means for maintaining the stability of the currency.
3. In a parliamentary democracy, legislation is basically reserved for Parliament, with government and administration being assigned to the executive branch. To the latter belongs also the conducting of foreign policy and trade policy. According to Art. 65 of the Basic Law, the Federal Chancellor determines, and is responsible for, the general policy guidelines. Within the limits set by these guidelines, each Federal Minister conducts the affairs of his department autonomously and on his own responsibility. There is a presumption of law in favor of the exclusivity of these expressly constituted competences of government.25 The Bundestag is not able to assume this function of government unless it is expressly provided with such functions.
This sort of exceptional authority of the legislative branch in the field of the executive branch has been established by Art. 59(2) of the Basic Law within highly specific limits, Only because Art. 59(2) requires a law in the two special cases (treaties which regulate the political relations of the Federation or relate to matters of federal legislation) is the legislature able to intervene in executive activity by way of participation in the form of law making. Above and beyond this, Art. 59(2) has not given the Bundestag a right to intervene in the Government's zone of responsibility. It remains limited to the general constitutional powers of supervision; rather than itself governing and administering, it controls the Government. Should it disapprove of the latter's policies, it is empowered to express its lack of confidence in the Federal Chancellor (Art. 67 of the Basic Law) and bring down the Government. But it is not able to conduct policy making of its own accord.
By way of this distribution of functions between Government and Parliament, the Basic Law does not prevent the Federal Government from allowing the Bundestag to exercise influence in the management of foreign affairs, as is provided for in the agreement of 18 July 1950 on cooperation between the Bundestag and the Federal Government in foreign-trade issues. The formation of the Parliamentary Advisory Board, which advises the Government in the conclusion of trade agreements, does not contradict the principle of separation of powers but rather promotes cooperation between the legislative and executive branches and ensures the control of and balance between the two powers.
4. The Judiciary Committee of the Bundestag, as well as the applicant itself, have recognized that it would lead to an intolerable overload in the work of the Bundestag and a delay in the conclusion of treaties if the Bundestag had to concern itself with each of the numerous, often short-term trade agreements. They have therefore recommended that Parliament confer on the Federal Government pursuant to Art. 80 of the Basic Law limited authorization to put trade agreements into effect by way of ordinances having the force of law.
This attempted solution, however, overlooks the fact that the consent or participation of the legislative bodies pursuant to Art. 59(2) of the Basic Law is, by its very nature and content, an act of government in the form of a federal law, which can only be accomplished directly by a formal law and not by an ordinance. The consent or participation of the legislative bodies in the form of a federal law is mandatory, being a special competence reserved for the legislature that cannot be renounced. This competence could only be transferred to the Federal Government by way of a constitutional amendment. Under Art. 80 of the Basic Law, the Federal Government can only be authorized to make law in the form of ordinances but not to carry out acts of government for which the Basic Law prescribes the form of a law.26 The formal law required in Art. 59(2) of the Basic Law is therefore unable to be replaced with an ordinance.
The German-French Commercial Treaty of 10 February 1950 thus does not belong to those treaties that regulate the political relations of the Federation or relate to matters of federal legislation. Consequently, by neglecting to submit the German-French Commercial Treaty to the bodies competent for federal legislation 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.
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