Forum : International and European Aspects of German Unification
Abstract
The rapid evolution of relationships between the two Germanies, marked particularly by the State Treaties of 14 June 1990 on economic, monetary and social union and of 31 August 1990 on political union, led naturally to the questioning of the position of the former German Democratic Republic, and of unified Germany, vis-à-vis the European Community.
Given that both the FRG and GDR felt that unification should be achieved within the framework of the Community, the essential question related to the method to be followed to extend the Community treaties to the territory of the ex-GDR. Could the theory of the geographical extension of the area of territorial application of the treaties find a place here, thus resulting in automatic application of Community law to the whole of the territory of the two Germanies immediately after unification? The answer depended partly on the way unification came about, but more particularly on Community law itself and on international law. Were we going to see an integration of the GDR into the FRG, or the creation of a new State resulting from the merger, or indeed the reappearance of Germany?
In internal respects, the line taken was to employ Article 23 of the Basic Law of the FRG, which is as follows:
For the time being, this Basic Law shall apply in the territory of the Länder of Baden, Bavaria, Bremen, Greater Berlin, Hamburg, Hesse, Lower Saxony, North Rhine Westphalia, the Rhineland Palatinate, Schleswig-Holstein, Württemberg-Baden, and Württemberg-Hohenzollern. In other parts of Germany it shall be put into force on their accession.
This was the procedure followed in 1956 for accession of the Saar. Its use has, in the present case, been preceded by negotiations leading up to a State treaty between the two Germanies that specified the details of accession, particularly the application of FRG legislation (including those provisions implementing Community law) on the territory of the ex-GDR. In this case, the Federal Republic of Germany has persisted, and united Germany does not constitute a new legal subject. The problem of the FRG's succession to the GDR's obligations does not even arise.
The other possibility would have been to apply Article 146 of the Basic Law, which provides for entry into force of a new constitution adopted by the free decision of the German people. Article 146 could have been, moreover, combined with Article 23, i.e. with a new constitution drawn up subsequently to accession achieved using Article 23. In this case, the question would be whether the State that would then have appeared would have been a new State or whether, in accordance with the case-law of the German Constitutional Court, united Germany would not have been distinguished from the former FRG.2
In any case, the German Basic Law postulates the existence, specifically in the Preamble, of a Germany not confined to FRG territory. This was also manifested firstly in the Treaty of 23 October 1954 between the Western Powers and the FRG, reserving to the Westerners the rights and responsibilities they had exercised and held regarding Germany as a whole, particularly in connection with the reunification or an act of the nature of a peace treaty, and, secondly, in the Treaty of 20 September 1955 between the USSR and the GDR, which refers to the obligations of both States under international agreements in respect of Germany as a whole. It would thus be possible to imagine two distinct but possibly consecutive situations: extension of FRG territory to East German territory and/or the reappearance of Germany. For practical reasons, it is the first case that eventuated.3
It seems hard to give answers to the various positions that might arise by referring exclusively to West German internal categories. These are only factual elements, undoubtedly important, within an analysis that has to be done with respect to both Community and international law.
At the present stage, the essential question has been whether after German unification extension of the territorial area of application of Community law to GDR territory required amendment to the Community Treaties. The answer has to be seen on two levels: principles and practical arrangements. As far as principles go, do Community law and international law authorize extension of the territorial area of application of Treaties without their amendment? If so, do the Treaties allow for the new situation created by unification?4