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Dieter Schröder

The author

Prof. Dr. jur., born 1935; Studied law and political science in Hamburg and Marburg; 1964 doctorate at the University of Hamburg; 1975 habilitation at the Free University of Berlin; 1984 - 1989 Professor of Political Science at the Free University of Berlin; 1989 - 1991 State Secretary and Head of the Berlin Senate Chancellery; 1993 - 1995 Lord Mayor of the Hanseatic City of Rostock

On the significance of Article 23 of the Basic Law for the foreign policy goals of the Federal Republic of Germany

The Basic Law established two state foreign policy goals: the reunification of Germany and European integration. Both goals did not contradict each other, argues Dieter Schröder. Rather, the European Union was the prerequisite for a German state as a whole.

Article 23 of the Basic Law read until September 29, 1990:

    "This Basic Law applies initially in the areas of the states of Baden, Bavaria, Bremen, Greater Berlin, Hamburg, Hesse, Lower Saxony, North Rhine-Westphalia, Rhineland-Palatinate, Schleswig-Holstein, Württemberg-Baden and Württemberg-Hohenzollern. In other parts of Germany is to put it into effect after their accession. "[1]
This is not only a determination of the scope of the Basic Law, but also a procedural rule for the goal defined in the preamble of the Basic Law, "to complete the unity and freedom of Germany through free self-determination", the so-called reunification requirement.

With the unification of the two German states in 1990, Article 23 was repealed and the preamble was changed. The goal was achieved. With effect from December 25, 1992, the empty space was replaced by a new text, the first paragraph of which reads:

    "In order to achieve a united Europe, the Federal Republic of Germany is involved in the development of the European Union, which is committed to democratic, constitutional, social and federal principles and the principle of subsidiarity and which guarantees fundamental rights protection that is essentially comparable to this Basic Law." [2]
Konrad Adenauer (center), President of the Parliamentary Council, proclaimed the Basic Law on May 23, 1949 (& copy Bundesarchiv, B 145 Bild-D00022155, Photo: Georg Munker)
This is followed by extensive procedural rules for the legal provisions resulting from this mandate, in particular to safeguard the rights of the German states and the Bundestag.

The Federal Constitutional Court interpreted the new norm as an expression of the will for European integration as an overriding political goal of the Federal Republic. From this constitutional mandate, it derived the duty of all German constitutional organs to "participate in European integration". [3]

In the following, it will be examined whether there is still a significant internal connection between the two norms, which at first glance concern very different subjects, whether these provisions are two sides of the same coin, namely the determination of the national goal on which foreign policy is based of the Federal Republic of Germany is to be measured last but not least: first German unification and then European integration.

The Basic Law and European Integration

In the version of the Basic Law of 1949, the word "Europe" appears only in the preamble and in Article 24 (2). In the preamble it says almost like today:

    "... inspired by the will to serve the peace of the world as an equal member in a united Europe, the German people ... decided on this Basic Law ..."
In Article 24, Paragraph 2, it says exactly as it is today:

    "... [the federal government] will ... consent to restrictions on its sovereign rights that will bring about and secure a peaceful and lasting order in Europe".
However, the Basic Law has undergone major changes in relation to European politics since 1949, for example with regard to the permissibility of extradition of Germans abroad (Art. 16, Paragraph 2, Clause 1). Today the extradition of Germans to a member state of the European Union is expressly allowed. With regard to the right of asylum (Art. 16, Paragraph 2, Clause 2, now Art. 16a), a refusal of the right of asylum is now possible for persons who are coming from a member state of the European Union. [4] These changes are reactions to new situations in Europe, which the parents wanted the Basic Law, the consequences of which most could not even imagine in 1949, and which were therefore not standardized at that time. And finally, the state goal of "reunification" has now been replaced by the foreign policy goal of "achieving a united Europe" through the development of the European Union.

The relationship between politics in Germany and politics in Europe

However, a consideration limited to the constitutional development, especially Article 23, does not yet reveal the political dynamics of what is happening. What appears to be a linear development when looking at the norms is in reality a very complex political process in which reunification policy and European unification are closely linked from the outset. [5]

First of all, one should remember Germany's place in Europe in the immediate post-war period. For 80 years, Germans had covered their neighbors, and most recently almost all of Europe, with wars in order to impose a German order on Europe. Many millions of people had lost their lives as a result. Now, at the end of the Second World War, the time for any German European policy was over; most of them were now looking for answers to the question of how Germany's potential could be tamed once and for all. A division of the German national territory into several small states, the dismantling of German industries or a defense pact of the states around Germany were considered and largely carried out. [6] The supreme power in Germany was held by France, Great Britain, the Soviet Union and the United States of America, the so-called Four Powers. Germany was the object and no longer the subject of European politics.

Wolfgang Schäuble, Federal Minister of the Interior (left) and GDR State Secretary Günther Krause (right) sign the Unification Treaty on August 31, 1990 in the Kronprinzenpalais. (& copy Federal Government, B 145 Bild-00046825, Photo: Klaus Lehnartz)
With the treaty between France and Germany to regulate the Saar question of 1956 [7], the annexation of the Saarland was the first step in the direction indicated by Art. 23, with the Unification Treaty of 1990 [8] the second and last. The primary national goal, the reunification of the Germans, had been achieved. Therefore, the preamble to the Basic Law could be changed and Art. 23, which had been in effect until then, could be repealed. [9] In order to achieve this goal, the Federal Republic of Germany has consistently adhered to the demand for the right of self-determination for Germans, cultivated internal German relations to the best of its ability and pursued the foreign policy strategy specified in Art. 24, namely equal participation in supranational institutions, above all for Europe and the Participation in collective security organizations and international arbitration. In doing so, it has made a significant contribution to a peaceful and lasting order in Europe.

Reunification was at the end of a long road. After the Berlin blockade ended in 1949, he began to conclude the Frankfurt interzonal trade agreement for economic relations between the parts of Germany that were initially known as zones. This first agreement was replaced in 1951 by the Berlin Agreement, which was in force until the Unification Treaty came into force in 1990. [10] It also fully corresponded to the intentions of the victorious powers announced at the Potsdam Conference in 1945 to "view Germany as an economic unit during the occupation." [11]

On April 18, 1951, the treaty establishing the European Coal and Steel Community (ECSC), also known as the coal and steel union, was signed in Paris. The initiator, French Foreign Minister Robert Schuman (left), presented the treaty to his counterparts. (& copy picture-alliance)
In the first few years after the Basic Law came into force, Germany policy was exhausted in discussions about the path to reunification. On the western side they called for free elections in all of Germany, on the eastern side an equal all-German council as a first step. European policy, on the other hand, began more effectively, which aroused the fear among many that the goal of reunification would be abandoned. [12]

Before the Federal Republic of Germany was able to act as an almost sovereign state in terms of foreign policy through the so-called Germany Treaty in 1955, [13] it participated in the founding of the European Coal and Steel Community (Montanunion, EKGS) as early as 1951. [14] The High Authority in Luxembourg was the first supranational body to which the Federal Republic had initially transferred sovereign rights for 50 years. [15] The Ruhr Statute, on the basis of which the Western occupying powers controlled the potential of the German heavy industry remaining after the Second World War, ie a possible basis for renewed German military armament, ended with the entry into force of the Coal and Steel Community Treaty. It was now bound internationally, [17] so that Germany's neighbors no longer had to perceive it as a threat.

In 1957 the European Economic Community (EEC) and the European Atomic Energy Community (Euratom) followed. [18] Large parts of the German economic power were thus bound internationally, and at the same time a large economic area was opened up for all those involved. While the Treaty on the European Coal and Steel Community of 1951 was still limited to 50 years, [19] the so-called Rome Treaties of 1957 were to "apply for an unlimited period". [20] They also did not contain any provision for the resignation of a member, but only the possibility of change negotiations. [21] The goal of permanent European integration is already indicated here. This could result in problems for the remaining connections between the two German states and for the reunification of Germany postulated as a state goal in the Basic Law. Precisely for this reason, the Federal Republic of Germany had to secure intra-German trade and no less important the status of community citizens for all Germans in the definition of Article 116 (1) of the Basic Law by means of a supplementary protocol and a protocol declaration when signing the Treaty of Rome for those living in the GDR. The exchange of goods between the two German states was also put on an equal footing with intra-community trade. Not the other German state, but the people living there and elements of their economy belonged in this special way to the European Economic Community. Citizens of the GDR were to be treated as German citizens by every member of the EEC when they stayed in the territory of the community, so they enjoyed all the rights of community citizens. That was practical Germany policy within the framework of German European policy.

In 1965, with effect from 1967, all three communities - EKGS, Euratom and EEC - were united under a joint council and a joint commission to form the European Communities (EC). [22] Further steps initially failed because of the reluctance cultivated by French President Charles de Gaulle. [23] After de Gaulle's resignation in 1969, at a summit in The Hague, a step-by-step plan for economic and monetary union and an agreement on European political cooperation (EPZ), including German policy, were established, and for this purpose the European Council was established. [24] From then on, Germany policy had to be coordinated with all members of the European Communities. And the number of members grew from 1972 to almost the entire area of ​​the European Free Trade Area. The European policy gained momentum, and there was growing concern that on the way to a common European foreign policy, the pursuit of the German national goal of reunification would be made more difficult.

In the meantime, not least because of pressure from the United States [25], a process had begun in the Federal Republic of Germany to free Germany policy from the paralysis, which was connected with the so-called Hallstein Doctrine - ie the inevitable breakdown of diplomatic relations State that recognized the GDR [26] - as well as reservations about the final validity of the Oder-Neisse border with Poland and ambiguous statements on the Sudeten question, ie claims against Czechoslovakia because of the expulsion of residents of German origin, the Sudetes. [27] With the peace note of March 25, 1966 [28], the then federal government of the grand coalition initially attempted to improve the climate without completely giving up the fundamental views of previous governments. Since this political approach also completely omitted the German Democratic Republic (GDR), it failed due to a negative attitude of the entire Warsaw Pact. [29] With the government declaration by Federal Chancellor Willy Brandt on October 28, 1969, the willingness to include the GDR in a new Ostpolitik was expressed for the first time. [30] What is remarkable in this government statement is the listing of urgent political decisions, namely to first press at the Hague Summit for a deepening and expansion of the European Communities and to strengthen political cooperation among the members, then cooperation with the United States and in NATO. Activate Council to start negotiations with the Soviet Union on renunciation of force and to start talks with Poland, finally to sign the Nuclear Non-Proliferation Treaty. At the beginning of a new German policy, its indispensable connection with European policy emerged particularly clearly.

Milestones of this new Germany policy were the 1970 Erfurt meeting between Chancellor Brandt and GDR Prime Minister Willi Stoph, [31] 1971 the Berlin settlement with the German implementation agreements, [32] 1972 the Basic Treaty [33] and then further cooperation agreements between the two German states . The agreement between the members of the EC on political cooperation and the European Council precedes this development. So from the beginning it was a question of a policy on Germany coordinated with the members of the EC.

After relations between the two German states had been clarified as far as possible with the Basic Treaty in 1972, the Federal Republic of Germany was able to act more freely. European politics came more into focus again. The Paris summit paved the way for the further development of the European Communities with the goal of a European Union (EU). [34] In 1973 the geographical expansion of the EC began with the accession of Great Britain, Ireland and Denmark. Greece followed in 1981, followed by Portugal and Spain in 1986. In 1978 the then members of the EC - Great Britain only with reservations - signed a treaty on the European Monetary System (EMS), which created fixed exchange rates, a European accounting unit (ECU), a mechanism to protect against exchange rate fluctuations and a common currency reserve. [35] The Single European Act of 1986, which came into force in 1987, not only confirmed the goal of the European Union and formally institutionalized European political cooperation more and regulates the coordination of foreign policy, but also a further development of economic and monetary policy and the promotion of economic and social cohesion in the EC. In the newly inserted Article 102a of the EEC Treaty, "institutional changes" with regard to the central banks were considered. [36] That was already understood as preparation for a monetary union. In 1988 there was then a German proposal for a European Central Bank, but the movements in Central and Eastern Europe, which were already recognizable in 1988, soon pushed the project, which had never been very vigorously advanced, into the background.

In the meantime, namely every five years since 1979, the first direct elections to the European Parliament had taken place, and European policy gradually came closer to a Union. And the German question was still an unsolved problem in European politics.

German unity within the framework of European policy

One day after the opening of the border on November 9, 1989, people climb the Berlin Wall in front of the Brandenburg Gate. (& copy AP)
At the turn of 1989, German politics and European politics clashed hard. It was by no means certain that a German association would be entirely unproblematic for the European states, including the members of the EC. Until then, France, Italy, Great Britain and the Federal Republic of Germany, each with 60 million inhabitants, were the four equally weighted leading member states, but a united Germany with 80 million inhabitants would now be the largest state in Europe after Russia, with the largest economy and the strongest currency . [38] Concern about German hegemony could not be dismissed out of hand.Not only Great Britain had reservations about the unification, but France also hesitated because of the dominant German economic power, which was not least reflected in the strength of the German mark. The independence of the Deutsche Bundesbank played a major role in this, as its monetary market policy could put a strain on the economies of other countries without any political consideration.

To what extent the European Monetary Union was made a condition for approval of German unification by France is still controversial today. [39] In any case, on April 18, 1990, Federal Chancellor Helmut Kohl and French President Francois Mitterand jointly passed on to Irish Prime Minister Charles Haughey, as acting chairman of the European Council, the wish to prepare for the economic and monetary union provided for in the Single European Act and an intergovernmental conference to initiate political union. Economic and monetary union should come into force in 1993. The European Council then expressly welcomed German unification on April 28, 1990 and decided on June 25, 1990, i.e. immediately before the German Economic and Monetary Union came into force on July 1, 1990, to open the Intergovernmental Conference immediately. [40]

European Central Bank in Frankfurt am Main (& copy AP)
In 1992, with the Maastricht Treaty on European Union, the monetary union was also established with the aim of a European Central Bank. Since the Maastricht Treaty came into force on November 1, 1993, the European Central Bank has the exclusive right to authorize the issuance of banknotes in the European Community. [41] Its constitution as an independent central bank was not clarified until 1997 with the Treaty of Amsterdam, which was replaced by the Treaty of Lisbon in 2007. [42] In 1998 the European Central Bank started its activities. In 1999 the EURO was introduced as the currency of account and in 2002 as a means of payment. As a result, the German mark was integrated into a common currency and thus incorporated, as had other elements of the perceived threatening German potential since the ECSC Treaty. The introduction of the euro is therefore inseparable from German unity, and Germany's burden from the current euro crisis and from coping with the financial crisis in the southern European member states also has something to do with Germany's regained unity.

The progress made towards European unification in the 1990s served not least to Europeanize Germany's potential, making the size of the country bearable for others. Paradoxically, this makes it easier for German companies to access European markets and opens up opportunities for them to specialize and expand, and thus to achieve even greater efficiency. The price of the unit is therefore at the same time profit.

The European Union as a prerequisite for the entire German state

However, it would not be enough to understand Germany's European commitment only as a consequence of World War II and division. As early as the beginning of the German unification movement at the beginning of the 19th century, the question was seriously asked whether a united Germany corresponds to the situation in Europe. A German state as a whole could endanger the European equilibrium, Germany would rather have the "political profession" of securing the European state system and thus peace, instead of forming a unified state. [43] Constantin Frantz, a sharp critic of Bismarck's unification of the empire in 1871, pointed out in 1870 that "the German question ... never [is] a purely national question and [there] never ... a German constitution [will] exist that is not at the same time an international one Character would have ... ". [44]

During the time of the division, such thoughts were expressed again and again and in the 1980s with increasing volume. When Erich Honecker visited Bonn in 1987, Chancellor Kohl declared with him that "the relationship between the two states must remain a stabilizing factor for constructive West-East relations." [45]

The second unification of Germany in 1990 was not achieved with a national claim, but with an understanding of Germany's obligations in Europe, so it was only logical to include European unification in 1992 with the new Art. 23 as a foreign policy goal in the Basic Law. Committed participation in the realization of a united Europe is thus becoming the benchmark for German foreign policy. This goal has not already been achieved with the Treaty of Lisbon 2007/2009 by giving the EU its own legal personality, a charter of fundamental rights, a president of the European Council and a high representative for foreign and security policy. Rather, it is about an overall European constitution with a common economic, financial and social policy.

The financial problems of the southern European members of the European Union force further steps on the way to the overall European constitution. One lesson from the relatively successful introduction of the Deutsche Mark in the GDR in 1990 should always be borne in mind, namely that a monetary union with unequal economic power can only succeed with a common social policy, because otherwise dangerous social upheavals are likely to occur. This is an insight that is already echoed in Article 23 of the Single European Act of 1986. But the task of a common social policy cannot be met with selective funding programs. A common social policy means that funds and not just loans are transferred for the reorganization of a weak member state of the Union. The resulting burden is also a price to pay for the unity of Germany. This should not be forgotten when responding to calls for a haircut for countries of the Union threatened by a currency crisis.

Germany must avoid any impression that it wants to gain hegemony over Europe. Recently, the image of the ugly German who wants to impose his worldview and politics on others has emerged more and more frequently in the south of the European Union. One can ask whether the sometimes rough dealings with the European Union and some of its members - especially in the rhetoric intended for German domestic policy - follow a generation change. Some of today's German politicians would like to see the meanwhile clear restrictions on German sovereignty and many of the decisions of the European Union now made in Brussels as an annoying obstacle to their own politics and hardly understand that the German founders of the ECSC, EEC and Euratom considered European unification recognized and pursued the only way to be able to implement their own German policy at all. This suppresses the fact that Germany was not a sovereign state from 1945 to 1990, neither were the two German states, even if politicians and numerous helpful scholars have loudly claimed the opposite. [46] Every step towards the achievement of sovereignty up to the conclusion of the Two-Plus-Four Treaty of 1990 [47] was associated with the renunciation of rights which, according to the pure doctrine, every sovereign state has, but which Germany has had since 1945 no longer had. Paradoxically, Germany's current sovereignty is the result of formal renunciation of sovereignty, but actually a gain through the acceptance of irreversible losses.

If Germans are concerned about their own power and complain about the strengthening of the European Parliament or the European Commission, it is forgotten that Germany would be more powerless without the European Union. Germany did not become a sovereign state again until 1990, when it was incorporated into the European Union. Germany therefore has to understand the European Union as a prerequisite for the German state as a whole, and this is not only required by Article 23 of the Basic Law in its current version.

While until the Treaty of Lisbon 2007 all treaties on the way to the European Union, with the exception of the ECSC Treaty, ended with a clause that they were to apply for an indefinite period of time and that there were no provisions for a state to leave the Community, only on referred to the possibility of amendment negotiations, [48] the Treaty of Lisbon for the first time offers an exit regulation for the European Union. [49] This may lead to the idea that all member states of the European Union could at any time retrieve the parts of their sovereignty that have been transferred to the Union, and that the Union would have to be dissolved completely. If member states other than Germany want to pursue such a policy, they also have to deal with the question of whether by leaving the European Union they are depriving themselves of the legally secured, institutionalized possibility of influencing Germany's politics.

For Germany there is still a much more far-reaching question, namely that of obligations under the Two-Plus-Four Treaty, which ended the supreme power of the United States of America, the Soviet Union, Great Britain and France for Germany as a whole and Germany after 45 years has achieved full sovereignty. The preamble to this treaty states that "the German people, in free exercise of their right to self-determination, have expressed their will to restore Germany's state unity in order to serve world peace as an equal and sovereign member in a united Europe." That is the business basis of the contract, so to speak. Article 23, paragraph 1, sentence 2 of the Basic Law offers an interpretation of the term "united Europe" by the German constitution, namely the "realization of a united Europe" through the "development of the European Union". A departure from the European Union is therefore constitutionally ruled out, quite apart from the loss of confidence that Germany would experience and the serious crisis into which Europe would then be plunged.

For no other European state has the unity of Europe achieved today through the European Union as constitutional as it does for Germany. Certainly, without the European Economic Community, everyone would experience weaker economic growth, but its constitution would hardly be affected. However, nobody wants to imagine the constitution of Germany if the path taken in 1948 with the Ruhr Statute and the International Ruhr Authority had not been broken off in 1951 with the establishment of the European Coal and Steel Community. European unity as Germany's foreign policy goal as defined in the Basic Law must therefore be advocated as passionately as the reunification of Germany was advocated until 1990, not only with words, but also with considerable material sacrifices.

How to quote: Dieter Schröder, Frank Stier, The European Union - Requirement for a united Germany. On the significance of Article 23 of the Basic Law for the foreign policy goals of the Federal Republic of Germany, in: Deutschland Archiv, January 17, 2014, http://www.bpb.de/176187