- BVerfGE 6, 309 2 BvG 1/55 Reichskonkordat of 1933-decision German assets in Switzerland Artt. 3, 14 GG
- 26 March 1957
- Dr. Katz, Dr. Schunck, Dr. Klaas, Henneka, Dr. Leibholz, Dr. Friesenhahn, Dr. Rupp, Dr. Geiger, Dr. Federer
- © Nomos Verlagsgesellschaft
While parties pursuant to para. 65 BVerfGG are entitled to make separate petitions, even where this broadens the object of dispute, such petitions must also be closely connected with the petitioner's petition.
While the Federal Constitutional Court cannot decide as to the validity of an international treaty with effect between the contracting parties, it is not prevented from finding as to the validity of such a treaty with effect for the parties to a constitutional dispute, that is with effect in national law, if this is important as a preliminary issue in deciding a constitutional dispute.
Infringement of unwritten constitutional obligations may also be complained of in a constitutional dispute. In such a case indication of an Article of the Basic Law is pursuant to para. 64 (2) BVerfGG replaced by reference to the unwritten constitutional obligation whose infringement is asserted.
a) The federalist principle of the Basic Law does not always require invocation of the Bundesrat before application to the Federal Constitutional Court for a finding of infringement of the constitutional duty of a Land.
b) The Bundesrat is involved only for objections to shortcomings in the constitutional implementation of a Federal Act. In other respects direct resort to the Federal Constitutional Court is admissible.
The Basic Law does not only have the so-called dependent Federal supervision regulated in Articles 84 and 85, that is, the taking of exception to shortcomings in administrative execution of Federal Law. Article 93 (1) (3) Basic Law makes the Federal Constitutional Court generally competent to decide differences of opinion on the rights and duties of the Federation and the Länder, with those that may arise in the execution of Federal law by the Länder and in the exercise of Federal supervision being singled out as one group of differences of opinion ("particularly").
Article 123 (2) Basic Law does not mean that Länder legislations are constitutionally bound by the schooling provisions of the Reich Concordat and therefore cannot make any contrary laws. Article 123 (2) Basic Law instead implies as regards the schooling provisions of the Reich Concordat only that they shall as long as they were still in force before entry into force of the Basic Law continue to apply although deriving from a treaty not concluded by the Länder, now solely entitled to decide in this area.
The assumption of a duty on the Länder vis-à-vis the Federation to take the schooling provisions of the Reich Concordat into account in their legislation is contradicted by basic decisions of the Basic Law that shape the relationship between Federation and Länder in this specific connection. These basic decisions are taken in Articles 7, 30 and 70 ff. Basic Law. They make the Länder, by contrast with the Weimar Constitution, the sole bearers of cultural sovereignty, limited as far as the area of denominational structure of schooling is concerned only by the provisions of Articles 7, 141 Basic Law.
Judgement of the Second Senate of 26 March 1957 -- 2 BvG 1/55 --
in the constitutional dispute on the question whether the Land of Lower Saxony had by enacting paras. 2,3,5,6,8,9,10,11,12,13,14 and 15 of the Act on Public Schooling in Lower Saxony of 14 September 1954 contravened the Concordat between the Holy See and the German Reich of 20 July 1933 and thereby infringed a right of the Federation to respect for international treaties binding on it by the Länder, petitioner: for the Federal Republic of Germany, the Federal Government; respondent: for the Land of Lower Saxony, the Land Government; further parties: 1. for the Land of Hessen the Land Government; 2. for the Free Hanseatic City of Bremen, the Senate.
The Federal Government's petition is rejected.
EXTRACT FROM GROUNDS:
The object of the legal dispute is the difference of opinion between the Federation and the Land of Lower Saxony as to whether the Land of Lower Saxony has contravened the Concordat between the Holy See and the German Reich of 20 July 1933 (RGBl. II p.679) by enacting the Act on Public Schooling in Lower Saxony of 14 September 1954 (Nds. GVBl. p.89) and thereby infringed a right of the Federation to respect by the Länder for international treaties binding upon it. The background to this difference of opinions is as follows:
1. In the Weimar Constitution the following provisions concerning public schooling had been concluded, on the basis of the so-called Weimar School Compromise:
Article 146. Public schooling shall be structured organically. Secondary and higher education shall be based on primary schooling common to all. For this structure the multiplicity of vocations shall be decisive and for acceptance of a child into a particular school its disposition and inclination, not the economic or social position or the religious denomination of its parents.
In municipalities elementary schools of a given denomination or outlook shall be set up on application by those having parental powers, insofar as orderly schooling, in particular within the meaning of the first paragraph, is not adversely affected thereby. The wishes of those having parental powers shall be taken into account as far as possible. Details shall be determined by Länder legislation in accordance with the principles of a Reich law.
Article 174. Pending enactment of the Reich law provided for in Article 146 (2), the existing legal position shall remain. The Act shall take special account of territories of the Reich in which non-denominationally divided schools legally exist.
The Reich law provided for in the last sentence of Article 146 (2) never came into being.
2. During the Weimar period the Länder of Bavaria (1924), Prussia (1929) and Baden (1932) concluded Concordats with the Holy See, and in connection with these, corresponding agreements with the Evangelical Churches. Only the Bavarian Concordat contains provisions on schooling.
Repeated efforts to conclude a Concordat between the Holy See and the Reich - the latest in 1931-2 - did not produce any outcome. In spring 1933 the National Socialist government of the Reich resumed these negotiations with the Holy See on a Reich Concordat. These led in 20 July 1933 to the signature of the Concordat and the accompanying final protocol by Cardinal Secretary of State Pacelli on behalf of the Holy See and Vice-Chancellor von Papen on behalf of the German Reich.
The Reich Law Gazette for 18 September 1933 (II p.679) published the Concordat along with the final protocol by notice of 12 September 1933, officially announcing that the treaty had been ratified on 10 September and entered into force on the same day. The Reich government further enacted the "Act on the Implementation of the Reich Concordat" of 12 September 1933 (RGBl. I p. 625). It empowered the Reich Minister for the Interior to enact the necessary legal and administrative provisions for implementing the provisions of the Reich Concordat. No such provisions were adopted.
In the Reich Concordat, the German and Italian texts of which are by Article 34 equally authentic, the following provisions are of importance for this legal dispute:
Catholic religious instruction in elementary schools, vocational schools, secondary schools and higher educational establishments is an ordinary subject of instruction and will be given in accordance with the principles of the Catholic Church. In religious instruction an education in patriotic, civic and social consciousness of duty in the spirit of the Christian laws of faith and morals will be cultivated with particular emphasis, as is done in the whole of the rest of education. Curricula and the selection of text books for religious instruction shall be determined in agreement with the higher ecclesiastical authorities. The higher ecclesiastical authorities will be given an opportunity to verify in agreement with the school authorities whether pupils are receiving religious instruction in accordance with the teachings and requirements of the Church.
In appointing Catholic religious teachers, there shall be an accord between the Bishop and the Land Government. Teachers who because of their doctrine or moral conduct have been declared by the Bishop to be unfit for the further giving of religious instruction may not be used as teachers of religion as long as this obstacle persists.
The retention and new establishment of Catholic denominational schools remains guaranteed. In all communes where parents or other holders of parental power apply therefor, Catholic elementary schools shall be set up where the number of pupils, having due regard to the local conditions of school organization, makes ordered operation of schools in accordance with State regulations seem feasible.
At all Catholic elementary schools, only such teachers shall be appointed as belong to the Catholic Church and offer guarantees of meeting the special requirements of the Catholic denominational school.
In the context of the general vocational training of teachers, establishments shall be set up which guarantee a training for Catholic teachers in accord with the special requirements of the Catholic denominational school.
These treaty commitments did not prevent the National Socialist governing power from gradually abolishing the Catholic schools - like the Evangelical ones - in large part, as well as hampering or preventing religious instruction.
3. Until the entry into force of the Lower Saxony School Act, different laws applied to the organization in accordance with belief systems of public elementary schools in the individual parts of the Land of Lower Saxony...(details).
Under National Socialist rule the denominational schools were abolished and replaced by non-denominational schools.
After the end of the war the British Military Government laid down by Education Order No.1 of 14 January 1946 that in districts where before 1933 denominational public schools had existed parents should be asked whether denominational elementary schools were to be set up again.
The German authorities were ordered to meet this wish should it be compatible with orderly running of schools. Subsequently Catholic elementary schools within the meaning of the above-mentioned laws, which again applied, were again set up.
4. In September 1953 the Land Government of Lower Saxony tabled a Draft School Administration Act. In the Landtag debate on this Act, the demand for a re-arrangement of denominational conditions in elementary schools was raised; the FDP Landtag group tabled a Bill on this subject. The Land Government of Lower Saxony thereupon decided to bring the draft dated 4 February 1954 of an Act on Public Schooling in Lower Saxony (Landtag Document no.1268) before the Landtag.
The Apostolic Nunzio complained to the Federal Government, and the latter to the Minister-President of the Land of Lower Saxony, against a number of provisions of this Draft because of their incompatibility with the Reich Concordat. The correspondence conducted on the subject did not lead to any understanding. The Act on Public Schooling in Lower Saxony was adopted by the Landtag, enacted on 14 September 1954 and promulgated in the Lower Saxon Law and Regulation Gazette on 15 September 1954 (Nds. GVBl. 1954 p.89)....The regulation of confessional arrangements in elementary schooling in the Lower Saxon Schools Act applies in all parts of the Land of Lower Saxony except for the territory of the former Land Oldenburg.
The provisions of the Lower Saxon Schools Act complained of by the Federal Government because of incompatibility with the Reich Concordat are as follows:
Schools supported by the communes, administrative districts, special associations and the Land (public schools within the meaning of this Act) shall in principle be Christian schools. Pupils will be educated in them together without distinction of confession or belief system. In education and instruction, account shall be taken of the feelings of those with different views.
The schools shall have the task of preparing the young people in their trust for life and work and training and educating them on the basis of Christianity, the Western cultural heritage and the German educational heritage into independently thinking, responsibly acting citizens of a democratic and social State based on the rule of law.
(1) Religious instruction shall be an ordinary subject at public schools, with the exception of vocational schools. It shall be given separately by denomination, in accordance with the principles of the religious groups.
(2) Guidelines and text books for religious instruction shall be decided on in agreement with the religious groups. Without prejudice to the governmental right of supervision, the religious groups shall have the right to convince themselves through representatives, in accord with the governmental school inspection officials, that religious instruction is being given in accordance with their principles. The religious groups shall as a rule mandate governmental school inspection officials for the inspection, and in exceptional cases suitable school directors.
(3) No teacher may be compelled to give religious instruction.
(4) Those holding parental power shall decide on participation in religious instruction. On coming of age for religious purposes this right shall pass to the pupil. A declaration on non-participation in religious instruction must be made to the school director by the person holding parental power, or pupil of age for religious purposes, in writing.
(5) Religious instruction shall be established for a religious minority of at least twelve pupils.
(6) For pupils not taking part in religious instruction, instruction in religious studies shall be established from the fifth school year onwards as an ordinary teaching subject. It shall be implemented where at least twelve pupils are registered for it. Paras.3 and 4 shall apply mutatis mutandis.
Teachers shall be trained at universities and colleges at which research and teaching are free.
(1) At the request of those holding parental power, public elementary schools for pupils of the same denomination shall be established within the framework of this Act.
(2) The teaching staff of such a school shall be made up of teachers belonging to the same denomination as the pupils.
(3) In exceptional cases children not belonging to this denomination may be taken in, as long as no separate religious instruction would have to be established for them.
(1) Public elementary schools for pupils of the same denomination shall be established where the existence of an adequate number of elementary schools for pupils of all denominations in the territory of the entity supporting the schools is not in question. This condition shall not have been met unless there is in the territory of the entity supporting the school at least an adequate elementary school system appropriate by size and construction for pupils of all denominations.
(2) The school to be set up may not be essentially smaller than what is appropriate for a school system according to the size of the entity supporting the schools.
(1) The application must be made by the legal representatives of at least 120 and in the territory of a school-supporting entity with more than 5000 inhabitants at least 240, pupils belonging to the same denomination and attending an elementary school for pupils of all denominations in the territory of the school-supporting entity.
(2) Those entitled to make application are legal representatives having their residence in the territory of the school-supporting entity.
(3) The application must be made by the applicants personally by 30 June of the current school year on the record to the school-supporting entity. The application may be withdrawn.
Establishment of the school presupposes that by 30 September of the current school year an adequate number of children has been regularly registered for this school. Establishment of the school shall be rejected where its existence does not seem guaranteed for four years.
(1) The decision shall be taken by resolution of the school-supporting entity which shall for this require authorization from the Schools Inspectorate. The decision of the school-supporting entity may be replaced by a resolution of the Schools Inspectorate.
(2) If the application is accepted, a public elementary school is to be established as a school for pupils of the same denomination by the beginning of the next school year.
(3) If the necessary premises for the new school cannot be secured by this date, then establishment of the school may be postponed by one year, but at most for two years. A resolution to this effect by the school-supporting entity must be taken by 31 January of the current school year; it shall require authorization from the municipal supervisory authority in accordance with the Schools Inspectorate.
An application that has been unsuccessful cannot be repeated until the expiry of two years.
This period shall begin with the end of the school year in which the decision on the application was taken.
(1) Should such a school become significantly smaller than is appropriate for a school system according to the size of the school-supporting entity then the school shall be extinguished as a school for pupils of the same denomination.
(2) Such extinguishing shall be affected by the school-supporting entity with permission from or at the order of the Schools Inspectorate.
(1) Where there is only one public elementary school in the territory of a school-supporting entity, it shall on entry into force of the Act become a school for pupils of all denominations to which para.7 shall apply.
(2) Should there be in the territory of the school-supporting entity in which according to its size a school of less than five grades is appropriate several public elementary schools, then these shall on entry into force of the Act become a school for pupils of all denominations.
(3) Otherwise existing schools for pupils of the same denomination in the territory of a school-supporting entity with several public elementary schools shall remain; the provisions of para.8
(4) shall apply to these as appropriate.
(5) Should there not be on the territory of the school-supporting entity an adequate number of public elementary schools for pupils of all denominations, then one or more such schools shall be established and gradually expanded as soon as a sufficient number of children is regularly registered for these schools and seems guaranteed for four years. Correspondingly, the existing schools for pupils of the same denomination in the territory of a school-supporting entity for which a school appropriate in dimensions to its size would suffice shall be run down.
On behalf of the Federation, the Federal Government called for the decision of the Federal Constitutional Court on the difference of opinion that had arisen with the Land of Lower Saxony.
It first of all asked for the Federal Constitutional Court to find that:
1) the Reich Concordat of 20 July 1933 continues to be valid law unchanged in the Federal Republic of Germany;
2) the Land of Lower Saxony had by enacting paras. 2,5,6,8,9,10,11,12,13,14 and 15 of the Act on Public Schooling in Lower Saxony of 14 September 1954 contravened the Reich Concordat, transformed into Reich law, and thus infringed the Federation's right to respect for international treaties binding upon it (Article 20 (3), 32, 25, 123 Basic Law).
In the further course of the proceedings the Federal Government stated that Point 1 of the petition was to be understood only as a suggestion pursuant to para.67, third sentence, BVerfGG.
The Government of the Land of Lower Saxony applied for rejection of the Federal Government's petition.
The Government of Land Hesse joined the proceedings on the side of the respondent and applied for Rejection of the Federal Government's petitions for declaratory judgment... (there follows an alternative petition).
The Senate of the Free Hanseatic City of Bremen likewise joined the proceedings on the side of the respondent. It petitioned for rejection of the Federal Government's petition... (there follow alternative petitions).
The Federal Government petitioned for rejection of the petitions of the Government of Hesse and of the Senate of the Free Hanseatic City of Bremen.
Essentially, the Federal Government stated that the Reich Concordat had been validly arrived at. The Act to Alleviate the Distress of Nation and Reich of 24 March 1933 (RGBl. I p.141), the so-called Empowerment Act, had created the constitutional preconditions for the conclusion of a treaty by the Reich President alone, without the assent of the Reichstag. The Reich Concordat is by Article 123 (2) Basic Law still in force today. The Länder were obligated to the Federation to respect treaties binding on it. The Land of Lower Saxony had contravened this obligation by enacting the provisions of the Act on Public Schooling in Lower Saxony of 14 September 1954 mentioned in the petition. The Lower Saxon Schools Act was, specifically, not compatible with the Reich Concordat. Existing Catholic denominational schools were not retained; implementation of the Act had as a practical outcome their dissolution, with only a few exceptions; while the Act provided for a right of parents to petition for establishment of new denominational schools, it set the prerequisites for this in such a way as to go far beyond the measure of what could be necessary for orderly operation of schools; it did not allow the Church adequate opportunity to verify whether religious instruction was being given in accord with its doctrines since it placed inspection of religious instruction as a rule in the hands of governmental schools inspection officials; finally, it did not guarantee the training of Catholic teachers in accordance with the special requirements of Catholic denominational schools. The provisions of the Act, taken in their overall context, contravened Articles 21, 22, 23 and 24 of the Reich Concordat. The Länder were obligated towards the Federation to comply with the schools provisions of the Reich Concordat. Infringement of this constitutional duty by a Land could be asserted by the Federation in a constitutional dispute before the Federal Constitutional Court directly, without prior resort to the Bundesrat.
The Land Government of Lower Saxony did not take a position on whether the Reich Concordat had come about validly or whether it continued to be in force. However, it regarded the Lower Saxon Schools Act as compatible with the Concordat. Apart from that, the Federation was not entitled to require the Länder to comply with the schools provisions of the Reich Concordat...(there follow the opinions of the joined Länder and procedural information).
1. There is a difference of opinion between the Federal Government and the Land Government of Lower Saxony on the rights and duties of the Federation and the Länder arising out of the Basic Law. Such differences of opinion are decided by the Federal Constitutional Court (Article 93 (1) (3) Basic Law, para.13 (7) BVerfGG).
2.- 5....(The Federal Government's petition and the Länder petitions for dismissal are admissible, but the alternative petitions inadmissible).
6. The objection is raised against admissibility of the proceedings that a decision on the Federal Government's petition presupposes that the Federal Constitutional Court can find as to the validity in international law of the Reich Concordat - if only as a preliminary question; but that it is not competent for this. This objection is unjustified. The Federal Constitutional Court cannot decide as to the validity of the Reich Concordat with effect between the contracting parties; it is however not prevented from finding as to the validity of an international treaty with effect for those involved in the constitutional dispute, i.e. with effect in domestic law, where this is of importance as a preliminary issue in deciding a constitutional dispute. This view is in harmony with the statements in the Court's judgments BVerfGE 1, 371; 1, 413; 2, 367.
To justify the inadmissibility of an interlocutory decision as to the validity of an international treaty it has also been adduced that the decisions of the Federal Constitutional Court bind, by para. 31 BVerfGG, the constitutional organs of the Federation and the Länder as well as all courts and authorities. This argument is not correct either: for statements by the Federal Constitutional Court as to the validity of international treaties do not restrict the Federal Government in its freedom of action in international transactions.
Finally, the respondent denies the admissibility of interlocutory verification of the Concordat's validity by referring also to Article 33 (2) of the Reich Concordat. According to this provision, where any difference of opinion arises as to the interpretation or application of a provision of the Concordat, the Holy See and the German Reich are to arrive at an amicable solution by common accord. This clause refers only to the relationship between the contracting parties. A difference of opinion between the Federation and a Land on the domestic conclusions to be drawn from provisions of the Reich Concordat can however not be resolved by amicable negotiations between the contracting parties. On the other hand, a decision as to the domestic difference of opinion does not pre-empt any necessary or desirable amicable understanding between the contracting parties.
7. The objection has been raised against the petition that the Federal Government has, contrary to para. 64 (2) BVerfGG, neglected to indicate in the petition the provision of the Basic Law allegedly contravened by the respondent's measure objected to; the provisions of the Basic Law mentioned in the petition are not ones that could have been infringed by the respondent's measure. But what is here being alleged is infringement of an unwritten constitutional provision, namely an infringement of the duty on Länder to respect international treaties binding on the Federation. If there are unwritten constitutional duties - and that cannot be doubted - it must also be possible to complain of infringement of such duties in a constitutional dispute. In such a case the provision of para.64 (2) BVerfGG cannot be complied with by referring to an Article of the Basic Law. Instead reference must be made to the unwritten constitutional duty whose infringement is claimed.
8. It is stated by the respondents that infringement of "Bundestreue (federal comity)" cannot be checked in court proceedings because the concept of federal comity is not precisely specified legally and accordingly infringement of federal comity cannot be verified by legal finding.
Against this it should first of all be pointed out that while the Federal Government did originally base its petition on infringement of the general principle of federal comity, in the course of the proceedings it moved to asserting a specific obligation to comply with international treaties binding on the Federation. Whether a measure infringes such a duty is subject to decision by the Federal Constitutional Court (Cf. BVerfGE 1,315; 4, 140 F.). It is a constitutional question whether a duty on Länder to comply with treaties of the Federation exists. Whether statutory provisions enacted by a Land are compatible with the content of treaties is likewise a question of legal interpretation.
9. It is asserted that the proceedings are at any rate not admissible at this time. The Federal Government ought previously to have applied to the Bundesrat for a finding of violation of law by the Land of Lower Saxony pursuant to Article 84 (4) Basic Law. Only then could it have resorted to the Federal Constitutional Court against the Bundesrat's decision. This objection is unjustified. The view that the basic principle of federalism in the Basic Law always requires resort to the Bundesrat before the Federal Constitutional Court can be applied to for a finding of infringement of a constitutional duty by a Land is incorrect. The Bundesrat is only involved in correcting shortcomings in administrative execution of a Federal Law. Otherwise direct resort to the Federal Constitutional Court is admissible. This follows from the place of Article 84 (4) in the system of the Basic Law. Section VIII deals with execution of Federal laws by Land administration. Within this section Article 84 regulates the case where the Länder execute Federal laws on their own account, while Article 85 Basic Law refers to execution as agents of the Federation. The object of this constitutional dispute is not an action of a Land administration but an Act of the Land of Lower Saxony. Nor does this Act execute a Federal law. Nor is the Basic Law "executed"; instead the Land is acting in the area of governmental activity left to it by the Basic Law for it to handle freely. But according to the Federal Government's allegation the Land has in so legislating, in itself an autonomous matter, failed to comply with a constitutional duty. A complaint of this nature can and must be directly brought before the Federal Constitutional Court.
10. Finally, it has been asserted that the Basic Law has only the so-called dependent Federal supervision regulated in Article 84 and 85, that is, the correction of shortcomings in administrative execution of Federal laws. The conclusion drawn from this that the Federation could not outside the framework of this "dependent" Federal supervision complain of infringement of Federal constitutional duties by a Land at all is unjustified. Instead, it is the case that Article 93 (1) (3) Basic Law makes the Federal Constitutional Court generally competent to decide differences of opinion on rights and duties of the Federation and the Länder, with those differences of opinion that might arise in the execution of Federal law by the Länder and in the exercise of Federal supervision merely being emphasized as one group ("particularly").
1. Enquiry into whether the complaint is justified must begin with reviewing whether the Reich Concordat came about validly. For only non-compliance with a valid international treaty of the Federation could constitute infringement of a constitutional duty of a Land.
The German constitutional basis for the power to conclude the Reich Concordat was the Act to Alleviate the Distress of Nation and Reich of 24 March 1933 (RGB1. I p.141), the so-called Empowerment Act. Its Article 4 is as follows:
Treaties of the Reich with foreign States relating to matters of Reich legislation shall not require assent from the bodies involved in legislation. The Reich government shall enact the provisions necessary to implement these treaties.
By Article 45 (1) of the Weimar Constitution, the Reich President represented the Reich in international law and could in the name of the Reich conclude alliances and other treaties with foreign powers; by Article 4 of the Empowerment Act he no longer required the Reichstag assent provided for in Article 45 (3) of the Weimar Constitution for treaties with foreign States relating to objects of Reich legislation. It may be left undecided whether the Reichstag assent was required by the Weimar Constitution for concordats, since in any case the Empowerment Act set aside this requirement. If the Empowerment Act applied, objections to the validity of the conclusion of the Reich Concordat cannot be derived from the absence of assent by the Reichstag.
Measured against the provisions of the Weimar Constitution, the so-called Empowerment Act was invalid. No further discussion of this is required, since its validity cannot be decided according to the provisions of that Constitution. The Empowerment Act must be seen as a stage in the revolutionary establishment of National Socialist dictatorship. It created a new system of competences in place of the existing ones. This new system of competences had de facto become established at any rate by the date of ratification of the Concordat (September 1933) both internally and externally. In accordance with the provisions of the Empowerment Act a number of international treaties had been concluded by the German Reich already before conclusion of the Concordat, above all the Four Power Pact between Germany, France, Britain and Italy of 15 July 1933 (Political Treaties, edited by Viktor Bruns, vol.1, Berlin 1936, p.348). The new system of competences was therefore recognized internationally. It also operated internally.
One cannot affirm the existence of a system of competences established in revolutionary fashion while denying validity to the acts of State and norms arrived at under this system of competences. Instead, recognition of the validity of a system of competences leads necessarily to the conclusion of assuming the possibility of arriving at valid law in this system of competences (cf. also BVerfGE 2, 248, 253; 3,90, 94 and the ruling of the Federal Constitutional Court of 19 February 1957 - 1 BvR 357/52 - 1 BGHZ 5, 96 ff.) But recognition of the new system of competences does not yet say anything about whether statutes and orders enacted on its basis can be recognized as valid law. That depends on the content. They cannot be recognized as valid law where they contravene the essence and the possible content of law. In this respect, reservations cannot be raised against the Reich Concordat.
Accordingly, the Reich Concordat was validly arrived at as a treaty binding on both sides. In view of the clearly expressed contractual intention of both parties, the motives and internal reservations of the Reich government alleged by the joined Länder cannot come into it.
2. In this legal dispute there is no need for a decision in principle of the question of where the boundaries of the possibility and necessity of transformation of international treaties into domestic law lie, nor in particular of the question whether and in how far the rules on transformation are to be applied to concordats. For at any rate the schools provisions of the Reich Concordat, the only ones at issue here, did become German law.
Reichstag assent pursuant to Article 45 (3) of the Weimar Constitution was in Weimar constitutional practice given in an Act, in which prevailing doctrine saw simultaneously the conversion of the treaty law into domestic law. Once the so-called Empowerment Act had removed the requirement of Reichstag assent to the conclusion of the Treaty, the Reich government saw no occasion to enact an Act. Instead it went back to State practice under the Bismarck Reich Constitution, which let publication of the Treaty in the Reich Law Gazette suffice for putting the treaty norms into force domestically. The Foreign Office and the Reich Ministries of Justice and the Interior, on the occasion of an exchange of views on the form of putting the Reich Concordat into force domestically, accurately assessed the then constitutional position as being that no act was required for transposition but that simple publication in the Reich Law Gazette sufficed (cf. the note of 13 July 1933 on II Vat. 274/275, contained in documents of the Foreign Office div.II, Politics 2 no.1 Vatican vol.9). Accordingly, the Reich government in its session of 14 July 1933 assented to conclusion of the Reich Concordat initialled on 8 July 1933, repeated its assent in circulation procedure following signature of the Treaty and decided on publication of the Reich Concordat in the Reich Law Gazette. Additionally, an implementing Act was enacted, empowering the Reich Minister of the Interior to make the legal and administrative orders necessary to implementation of the Reich Concordat. The Reich Ministers of Foreign Affairs and the Interior published the Reich Concordat in the Reich Law Gazette (Part II p.679) in a notice of 12 September 1933. The notice is worded as follows:
Notice on the Concordat between the
German Reich and the Holy See.
12 September 1933.
On 20 July 1933 a Concordat was signed in the Vatican City between representatives of the German Reich and of the Holy See. The Concordat and the accompanying final protocol are published below.
The Concordat has been ratified. The exchange of instruments of ratification took place in the Vatican City on 10 September 1933. The Concordat and the Final Protocol came into force pursuant to Article 34 of the Concordat on 10 September 1933.
To execute the Concordat the Act of 12 September 1933 published in the Reich Law Gazette for 1933 Part I p.625 has been promulgated.
Berlin, 12 September 1933.
The Reich Minister for Foreign Affairs
Freiherr von Neurath
The Reich Minister for the Interior
The Act referred to in the notice is worded as follows:
Act on the Implementation of the Reich Concordat.
12 September 1933.
The Reich Government has adopted the following Act which is hereby promulgated:
The Reich Minister of the Interior is empowered to take the legal and administrative measures necessary to implement the provisions of the Reich Concordat.
Berlin, 12 September 1933.
The Reich Chancellor
The Reich Minister for Foreign Affairs
Freiherr von Neurath
The Reich Minister of the Interior
Therewith, on the then constitutional position, the Reich Concordat was made domestically binding law. This constitutional position is decisive in assessing the then transposition procedure even today.
The fact that no use was later made of the authorization given to the Reich Minister of the Interior by the Act implementing the Reich Concordat does not affect the domestic validity of the schools provisions of the Reich Concordat since they constitute directly applicable law.
3. The Reich Concordat remained in force in international and domestic law throughout the period of the National Socialist regime.
a) The repeated severe infringements of the Reich Concordat (e.g. of Articles 15, 17, 19, 23, 31) by National Socialist government and party offices did not affect its legal validity but merely gave the injured party the right either to denounce the Treaty or call for it to be fulfilled.
But the Holy See held to the Reich Concordat and in repeated protests, culminating in the encyclical "Mit brennender Sorge" of 14 March 1937, did not cease to protest the "evasion, erosion and ultimately more or less public infringement of the Treaty" by the National Socialist State. In that encyclical the Pope declared:
"Even today when the open fight against the denominational schools protected by the Concordat and the abolition of freedom of Catholic holders of parental power to decide in a special area of the life of the Church mark the calamitous seriousness of the situation, paternal care for the salvation of souls counsels us not to leave the perhaps still present, albeit slight, prospects for return to loyalty to the Treaty and to the responsible seeking of agreement out of account."
b) Even the National Socialist State, despite all its violations of the Concordat and despite its struggle against Church and Christianity, never denounced the Concordat or declared it superseded. For the initial period of the Third Reich, one could even show efforts by government offices to oppose the repeated violations of the Concordat of which the NSDAP was a driving force. But such efforts did not lead to any assuaging of the Holy See's complaints.
With the intensification of the fight against the Church in the years 1937-1939 it was at first contemplated in National Socialist Party offices and also in government circles to declare individual Articles of the Concordat no longer binding; later denunciation of the whole Treaty was considered. The Reich government was in fact intending enacting a Reich schools act that would not have been in harmony with the schools provisions of the Reich Concordat. However, these remained as internal considerations; no note of denunciation was ever sent off.
c) Nor did the Reich Concordat become obsolete through customary law derogating it from it.
The necessary long time for derogation was lacking, as was the complete ignoring of the duties resulting from the Treaty in accordance with the declared or agreed intention of both parties.
Neither side doubted the validity in international and domestic law of the Reich Concordat, even if it was increasingly ignored by the National Socialist regime and regarded from the outset by the Church not as a concordatum amicitiae but as a concordatum defensionis.
4. a) The Reich Concordat, which according to its preamble is to "lastingly regulate the relationship between the Catholic Church and the State for the whole territory of the German Reich", did not lose validity through the collapse of the National Socialist dictatorship. The contracting party was the German Reich. The contracting parties wanted a lasting arrangement; accordingly, the argument that the Concordat was in force only for the duration of the National Socialist system cannot convince. Admittedly, the legal structure of the State party has been radically transformed. The dictatorship collapsed. But this did not on the prevailing view, shared by the Court, change anything in the continued existence of the German Reich and therefore in the continued existence of international treaties concluded by it either, unless by its content a treaty would not have been fit to outlast the National Socialist dictatorship. This is not the case for the Reich Concordat. Admittedly, it occasionally refers to the then structure of the German Reich. Thus, for instance, by Article 16 the Bishops' oath was to be given to "the Reich vice-regent in the relative Land or to the Reich President". In particular, Articles 31 and 32 on Catholic organizations and associations and on the clergy and members of orders were based on similar provisions of the Concordat concluded with Fascist Italy and corresponded to a particular concern of the National Socialist dictatorship, and Article 32 explicitly refers in its introductory words to the special circumstances existing in Germany. But apart from such adjustments to the situation in the German Reich, subordinate in significance to the overall content of the Treaty, the content of the Reich Concordat, which in any case in many provisions, particularly the schools provisions at issue, was based on earlier German drafts from the period of the Weimar Republic, is not of such a nature as to make its continued validity beyond the period of National Socialist dictatorship questionable. The Reich Concordat accordingly remained in force even after the collapse.
b) The occupying powers did not rescind the Reich Concordat. Nor would they have been able to do so with effect in international law. Because the Concordat was, like treaties with neutral States, outside the unilateral disposition of the occupying powers. Dispositions of the occupying powers could at most have had effect domestically.
For the British zone, and therefore with application to Lower Saxony, Education Order no. 1 of the British military government of 14 January 1946 was issued, Section IV of which states that the military government has decided:
"that the Concordat, insofar as it affects the territory of the British zone of occupation, must be regarded as temporarily out of force. This does not mean that it has become superseded; instead the view is that it is probably capable of being revived and applied once the necessary prerequisites exist, which is not at present the case."
This Education Order was not an act of legislation but only an internal service instruction or political guideline. Additionally the military government, even if it legally erred in regarding the Concordat as "temporarily out of force", nevertheless wished, as emerges from the Education Order itself, to be guided by it as far as possible and to suggest this to the German authorities too.
Because of the internal context, Directive no.6 of the Allied High Commission (ABl. 1951 p.846) should be dealt with here, even though issued only after enactment of the Basic Law.
According to this Directive all Treaties of the German Reich were to be suspended until put in force again by the Federal Republic with the approval of the Allied High Commission by agreement with the contractual partner. This directive could relate only to treaties with former enemy States, since only such treaties could be affected by the war. Accordingly, it was not applied to the Reich Concordat.
5. The establishment of a governmental organization for the territory of the Western occupying zones by the Bonn Basic Law did not alter anything as to the validity of the Reich Concordat between the contracting parties. The German Reich, which had not ceased to exist following the collapse, also continued to exist even after 1945; even though the organization set up by the Basic Law is temporarily limited in its validity to a part of the territory of the Reich, nevertheless the Federal Republic of Germany is identical with the German Reich (BVerfGE 3, 319f.). It follows that the Federal Republic of Germany is bound by the international treaties concluded by the German Reich. For the treaties concluded by the German Reich relating to matters for which according to the Basic Law Länder legislation is competent, Article 123 (2) Basic Law provides that they shall remain in force under the conditions stated therein, "until new treaties are concluded by the agencies competent under this Basic Law, or until they are in any other way terminated pursuant to their provisions".
None of these grounds of termination applies to the Reich Concordat. New international treaties have not been concluded. The Reich Concordat is not time-limited.
6. It is wrongly asserted that for the schools provisions the Länder have become the parties to the Reich Concordat in the place of the German Reich. It is normally only the contracting parties that acquire rights and duties out of a treaty. It may be the case that when one contracting party ceases to exist some other entity will replace it as contracting party. As explained, however, the German Reich as contracting party has not ceased to exist. The fact that according to the Basic Law schools legislation is for the Länder is of importance only domestically and does not make the Länder into the contracting parties in respect of the schools provisions of the Reich Concordat.
It has been asserted that the schools provisions of the Reich Concordat are in contradiction with the Basic Law because they contravene the principle of freedom of conscience stipulated in Article 4 Basic Law. The denominational school of the Reich Concordat is - at any rate in the Federal Government's view - a school in which the children of one denomination are educated, in which teachers of the same denomination teach and in which not only religious instruction but the whole of instruction and education are in line with the spirit of that denomination.
Schools of this type are according to the Reich Concordat to be set up on application by those holding parental power, on certain pre-conditions. The meeting of a desire to this effect by those holding parental power, dictated by creed and by religious responsibility for the child, does not contradict the fundamental right to freedom of conscience, still less since education is set up on principles of a public monopoly of schooling, universal compulsory education and the duty to attend State schools. This can admittedly in some circumstances lead to there being only one elementary school in a place, while the desires of those holding parental power as regards the type of school diverge (non-denominational school, evangelical denominational school, Catholic denominational school, humanist school). This means that the minorities in each case, to avoid unacceptable distances to school, in such circumstances do without the kind of school they desire and have to have their child educated and instructed in an elementary school that does not accord with their wishes. But this cannot be regarded as a restriction of freedom of conscience. It is not possible to make available to all parents the type of school that corresponds with their wishes. It is inevitable that parents will in some circumstances be compelled to entrust their child to a school that does not in terms of the outlook on life it presents meet the wishes of the parents. It cannot therefore be said that having regard to national compulsory education and the practical restrictions on the number of different types of outlook represented in schools the schools provisions of the Reich Concordat impermissibly interfere with freedom of conscience.
The fact that the Reich Concordat continues to apply in international law has the consequence that the resulting obligations on both sides are to be met by the contracting parties. In the area in which the Basic Law applies, the party to the Reich Concordat is to be regarded as the Federal Republic of Germany - which from the constitutional viewpoint is the Federation and the Länder as a whole. But the obligations resulting from the schools provisions of this Concordat can according to the constitutional law of the Federal Republic of Germany be met only by the Länder, since the Federation lacks legislative competence in the area of schools law. The decision of the present legal dispute depends on the question whether the Federation can require the Länder to comply with these provisions. It is to be answered in the affirmative if it appears that the Länder are constitutionally obligated to the Federation to observe these provisions in making schools law.
It must first be verified whether the Basic Law contains an explicit provision on this. The sole provision of the Basic Law that explicitly mentions treaties concluded by the German Reich is Article 123 (2) Basic Law:
"... (2) Subject to all rights and objections of the interested parties, the treaties concluded by the German Reich concerning matters which, under this Basic Law, shall be within the competence of Land legislation, shall remain in force if they are and continue to be valid in accordance with general principles of law, until new treaties are concluded by the agencies competent under this Basic Law, or until they are in any other way terminated pursuant to their provisions."
The requirements for applying this provision are present here. When the provision speaks of "treaties", this is to be understood as treaties of the German Reich in international law irrespective of whether they have been concluded with foreign States. The Reich Concordat too is a treaty within the meaning of this provision. This follows both from the legal nature of concordats and from the genesis of Article 123 (2) Basic Law (cf. JöR nF vol.1, 1951 p.841 f., 899 ff.). For the object of the schools provisions of the Reich Concordat, it is now the Länder that are competent to legislate (Article 70 ff. Basic Law).
But no constitutional obligation of the Länder to the Federation to comply with the schools provisions of the Reich Concordat can be derived from Article 123 (2) Basic Law.
This provision makes no decision as the continued existence in international law of the treaties mentioned therein. Any such decision would be outside the effective scope of the Basic Law as a national constitution. Article 123 (2) can instead deal only with the continued validity of the content of treaties as transposed into domestic law. It is accordingly a norm on the application of law, determining what law is to apply.
Such provisions for the continued validity of old law are to be found in every constitution and logically belong among the transitional and final provisions. The Weimar Constitution too contains a similar provision in Article 178 (2), laying down that the acts and orders of the Reich - apart from the Constitution of the German Reich of 16 April 1871 and the Act of 10 February 1919 on provisional authority in the Reich - were to remain in force insofar as they did not conflict with the Constitution. The order for the continued validity or remaining in force of old law made under the rule of a different constitutional order in the transitional provisions of a new constitution can only have the meaning of ruling out any doubt as to whether old law might perhaps no longer have any existence, as having come about under a different constitutional order, no longer in force; such doubts were particularly pressing after 1945. Beyond that, the provisions of Article 123 (1) and 123 (2) Basic Law have no legal meaning.
By its tenor and sense, the provision of Article 123 (2) Basic Law does not make Länder legislation constitutionally bound by the schools provisions of the Reich Concordat, so that no opposing law may be made. Article 123 (2) Basic Law instead says as regards the schools provisions of the Reich Concordat only that they remain in force insofar as they still applied when the Basic Law entered into force, although they derive from a treaty not concluded by the Länder, the sole entities empowered to make dispositions in the matter.
This finding is justified by the following considerations:
1. Article 123 (2) Basic Law regulates, for the provisions falling under it, only their continued validity as such, not their continued validity as Federal law. This follows even from the tenor of the provision, which explicitly presupposes the competence henceforth of Länder legislatures. It also emerges from the systematic connection of Article 123 (2) with Article 123 (1) Basic Law and from the relationship of the whole of Article 123 Basic Law with Articles 124, 125 Basic Law. While Article 123 confines itself in both clauses to ordering continued validity, the two following Articles divide law that correspondingly continues to be valid into Federal and Land law. Finally, the proceedings of the Parliamentary Council never suggest that in introducing Article 123 (2) Basic Law there was ever any intention to make a special arrangement as against Articles 124, 125 Basic Law.
German law corresponding to the school provisions of the Reich Concordat can by Articles 70 ff., 124 f. Basic Law have become only Länder law, since its object falls within the province of the exclusive legislation of the Länder.
Referring to the provisions of Article 140 Basic Law taken together with Article 136 ff. of the Weimar Constitution, the view has been expressed that the Reich Concordat was a constitutionally admissible and appropriate means under the Constitution of the German Reich of supplementing Article 136 ff. of the Weimar Constitution, concerning the law of Church and State relations. Its content is alleged to have become Reich law in its entirety, with the transposition into German domestic law. Since by Article 140 Basic Law the provisions on the law of Church and State relations in the Weimar Constitution are an integral part of the Basic Law, the Reich Concordat would today still fulfil the same function as in the German Reich. Its provisions would be a unitary whole, which could perhaps be split up into separate components systematically, but not constitutionally, and could accordingly not continue to be valid today partly as Federal and partly as Länder law. It would instead in its entirety have become Federal law today.
This view cannot be concurred with. It may here remain undiscussed whether the relationship between Church and State in the Weimar Republic has been taken over as a whole by Article 140 Basic Law, or whether despite the taking over of the provisions of Articles 136 - 139 and 141 of the Weimar Constitution as an integral part of the Basic Law there is today, as a consequence of the re-shaping of the relationship between Church and State, a quite different position in the law of Church and State relations. One considerable constitutional difference from the former constitutional law of the German Reich lies in the fact that the Reich could by Article 10 (1) of the Weimar Constitution lay down by way of legislation principles for the rights and duties of religious societies and indeed, under the system of competences of the unitary State, regulate everything, whereas the Basic Law denies the Federation competence to legislate in this area. The function of the Reich Concordat can therefore not be the same today as in the period when it came into being.
The question of what legal fate the transformed content of the Concordat has undergone through the entry into force of the Basic Law need be answered here only in connection with the schools provisions. These provisions form a closed, coherent field of reference, which in accordance with the constitutional order set up by the Basic Law relates exclusively to the Länder. They must therefore very clearly be separated not only systematically but also constitutionally from the remaining provisions of the Concordat, without any confusion to be feared from such a separation.
2. From the systematic position of the provision of Article 123 (2) Basic Law, from the need to bring it into harmony with other constitutional provisions and from its genesis it follows that it orders only the continued validity of law corresponding to an international treaty, without preventing the legislator now competent from amending that law.
a) A significant point is the position of Article 123 (2) Basic Law in the neighbourhood of Articles 123 (1), 124, 125 Basic Law. These provisions, accompanied as a procedural provision by Article 126 Basic Law, regulate nothing other than the continued validity of the legal situation met with by the Basic Law, without giving the law covered by the order for continued validity any other force in application than that going to Federal and Länder law respectively. It must be concluded from the fact that Article 123 (2) Basic Law is fitted in with these provisions and not separated from them that it too orders only the continued validity of law corresponding with the treaties and does not additionally forbid or restrict the amendment of treaty law.
This becomes still clearer from the special relationship in which Article 123 (2) Basic Law stands in relation to Article 123 (1), which orders that old law shall remain in force insofar as it does not conflict with the Basic Law. This relationship is very close even spatially. This is also in line with the substantive relationship in which both clauses stand to each other, bringing out Clause 2 as a special case of application of the general rule expressed in Clause 1. Article 123 (2) Basic Law only emphasizes, in order to clarify it, a case that in factual situation and legal consequence already came under the provisions of Article 123 (1) Basic Law. The provision removes a doubt that could have arisen if the Basic Law had contented itself with the provision of Article 123 (1) Basic Law. The continued validity of treaty law transposed into domestic law might then possibly have been questioned on the grounds that the content of the Treaty related to an area belonging today to the exclusive legislative competence of the Länder. The uncertainty conceivable because of the separation between the contracting party to the Treaty and legislative sovereignty is removed by the provision of Article 123 (2) Basic Law. This arrangement was necessary because its content is by no means a matter of course following the collapse of the unitary State and the subsequent reshaping of the Constitution. For Reich treaties relating to objects of Federal legislation such clarification was not needed. They are indubitably subject to the general rule of Article 123 (1) Basic Law.
When Article 123 (2) provides that the treaties in question shall remain in force "if they are and continue to be valid in accordance with general principles of law, until new treaties are concluded by the agencies competent under this Basic Law, or until they are in any other way terminated pursuant to their provisions", this can be understood only to the effect that the continued legal existence of the treaties in international law is thereby made the precondition for the treaty law to continue in force domestically. The continued force of transposed treaty law is first made dependent on the continued validity in international law of the treaties when the Basic Law came into force. It is also ordered that this law no longer remain in force, at any rate if the treaties have terminated in international law. This is a clear expression of the dependency of domestic law corresponding with the treaties on the legal continuity of the treaties in international law.
b) The assumption that Article 123 (2) Basic Law wishes to bind Länder legislatures constitutionally to the treaty law more than by ordering the continued validity of the law would be in contradiction with the structure of the relationship between Federation and Länder in the Basic Law in other respects.
The freedom of the Länder guaranteed by the Basic Law in the area of their exclusive legislation would on this assumption be considerably restricted for all subjects for which treaty arrangements exist. The decision whether the treaty commitment and thus the restriction imposed on the Land legislature should continue to exist or be removed would be largely left to the Federation. Insofar as the duty in international law can be removed only by a legally operative declaration (e.g. denunciation) by the contracting party, then as contracting party only the Federation would be capable of removing the commitment in international law.
This objection becomes still stronger in the case of the schools provisions of the Reich Concordat, since any such commitment of the Länder vis-à-vis the Federation in this area would have the consequence of considerable interference with their cultural sovereignty. This would be in contradiction with the federalist structure of the Federal Republic, in which cultural sovereignty, and especially sovereignty in the area of schooling, is the core of the autonomous Statehood of the Länder.
These viewpoints acquire particular scope because Article 123 itself has not ordered the continued validity of transposed treaty law without regard to the new legal order of the Basic Law, but only to the extent that existing treaty law does not conflict with the Basic Law. Treaty law too is by Article 123 (2) taken together with Article 123 (1) Basic Law subordinate to the Basic Law. From this general notion it can be deduced that the Basic Law's provisions on the distribution of competence between Federation and Länder have also to be observed in considering the question whether Länder are obligated to the Federation to hold to the content of treaties. It cannot therefore be assumed that the provision contains, in addition to the order that existing law should remain in force, a norm directed to the Länder in contradiction with basic decisions of the Basic Law on the sphere of sovereignty of the Länder, to the effect that treaty law may not be amended even where the treaty relates to the legislative competence of the Länder.
c) The genesis of Article 123 (2) Basic Law confirms the correctness of this interpretation.
The issue of the legal fate of treaties of the German Reich had been discussed in the Parliamentary Council in considering the question whether the Reich Concordat concluded under National Socialist rule continued to bind the new State to be constituted (HA StenBer. p.259 f.). A part of the political parties involved in the discussions of the Parliamentary Council called for the inclusion of a provision in the Basic Law ordering the continued validity of the agreements with the Churches existing on 8 May 1945 until the conclusion of corresponding new agreements by the Länder.
Point 7 of the motion (Document no.321 of 29 November 1948) is as follows:
"7. The agreements with the Churches existing on 1 January 1945 shall remain in force until replaced by new agreements to be concluded by the Länder."
This motion was aimed at constitutional recognition of the Reich Concordat, as was the provision of the following tenor, likewise moved following rejection of the above motion:
(1) The provisions of Article 137, 138 (2), 139 and 141 of the German Constitution of 11 August 1919 shall be upheld.
(2) The agreements with the Churches existing on 8 May 1955 shall remain in force until replaced by new agreements to be concluded by the Länder.
(In detail cf. HA StenBer. p.255-261).
The main committee adopted Clause 1 unchanged and Clause 2 in the following version:
(2) The agreements between the Länder and the Churches existing on 8 May 1945 shall remain in force until replaced by new agreements to be concluded by the Länder.
(See HA StenBer, p.260 f.).
In third reading in the main committee, the provision on continued validity of Länder concordats was eliminated (HS StenBer. p.682). The view was taken that it could not be a matter for the Federation to decide as to the continued validity of Länder concordats. The question of continued validity of the Reich Concordat was transferred into Article 139 (2) (which finally became Article 123 (2) Basic Law). The wording no longer focused on the Reich Concordat but in general on treaties of the German Reich. It was incorporated in the systematic context of provisions on continued validity of old law, whereas the rejected motions wished to regulate the question in connection with the legal position of the Churches (now Article 140 Basic Law). Additionally, the well-known reservations were added, which were not contained in the rejected proposals (HA StenBer. p.678 f.). In justification, Deputy von Brentano stated at the Ninth Session of the Parliamentary Council (StenBer. p.190), on Article 124 of the draft which corresponds to the present Article 123:
"On Article 124, as rapporteur on Section XI, I have the following declaration to make:
The Parliamentary Council could not consider it as being within its competence to take a position on the question of the continued validity in international and domestic law on the international treaties concluded with the German Reich, including the Reich Concordat of 1933. The validity of such treaties is as emerges from Article 124 to be assessed in accordance with generally valid principles of law. No decision as to this is taken in Article 124."
There would be an unresolvable contradiction between the view prevailing in the Parliamentary Council as the body that decisively shaped the Basic Law, namely that the Basic Law could not take a position on the continued validity in either international or domestic law or treaty law, and the content of Article 123 (2) Basic Law, if the provisions of Article 123 (2) Basic Law were to be understood as an order for Länder legislators to be bound by treaty law as domestic law. This contradiction would likewise exist were Article 123 (2) Basic Law interpreted not as an unconditional order to be bound by treaty law, but as an order for the domestic bindingness of treaty law for the case where the treaty continued to be valid in international law. As against this, the view prevailing in the Parliamentary Council can be reconciled without contradiction with an interpretation of Article 123 (2) Basic Law according to which the provision has no other effect than the declaration that domestic law corresponding to treaties does not cease to have force merely because of the entry into force of a new constitutional order, in particular its assignment of competences.
3. The opposite opinion, according to which Article 123 (2) Basic Law does not merely order the continued validity of domestic law corresponding to international treaties but wishes to ensure implementation of existing international legal obligations of the Federal Republic of Germany by the Länder. On this view the provision of Article 123 (2) Basic Law would by contrast with Clause 1 of the Article affect only the relationship between Federation and Länder, removing treaty law of the Reich on objects of exclusive Länder legislation from the free power of disposition of Länder legislators until treaties that bind the Federation are amended or terminated in accordance with international law. The conclusion would be that while the Länder could make law contradicting those treaties with domestic effect, they would not be allowed to do so, since thereby they would contravene a constitutional obligation vis-à-vis the Federation. The Länder would accordingly be obligated towards the Federation to repeal law that conflicted with treaties.
a) The very tenor of Article 123 (2) Basic Law is against such a interpretation. When that provision states that treaties... "shall remain in force", then this can only mean the continued validity of domestic law, since the Basic Law cannot and will not determine anything about the continued validity in international law of treaties. But one cannot conclude from the continued validity that is ordered that there is any constitutional binding of Länder legislators. The Basic Law could have ordered such binding; but all it did order is continued validity, no further-reaching provision being made.
b) According to Article 123 (2) Basic Law, treaties of the German Reich remain in force "if they are and continue to be valid in accordance with general principles of law". To establish that only treaties validly arrived at and continuing to be valid in international law remain in force, no norm would be required, since treaties not meeting these conditions cannot be valid nor remain in force. In fact the wording of Article 123 (2) expresses the unremoved open doubt of the constitutional legislator as to whether Reich treaties (in particular the Reich Concordat) had come into being validly in law and were found still valid when the Basic Law came in. Article 123 (2) Basic Law was, as can easily be shown from its genesis, created specifically with an eye to the Reich Concordat. The constitutional legislator did not recognize its bindingness, but did not deny it either. Instead the continued validity of the Reich Concordat was left open because its validity and bindingness had been doubted and because it was to be left to those involved to assert rights and objections to the content of the treaty. It cannot be presumed that the constitutional legislator wanted to bind Länder legislators to a treaty the validity of which it itself doubted.
By contrast, the objection that Article 123 (2) kept the decision on continued validity of the Reich Concordat open in the sense that it set up criteria according to which it was to be decided later, notably by the Federal Constitutional Court, whether the Reich Concordat is still in force is unconvincing. In assessing this provision, the legislator's task in responsibility for the continuity of law must not be misjudged. A constitution can very well leave the question of the continued validity of law from an earlier constitutional order open in the sense that in cases of doubt the courts should decide according to particular criteria. Should existing legal uncertainty nevertheless have a disruptive effect on the general good, it will always be the task of the legislator to clarify and secure the legal position by way of legislation. A constitutional binding of the - exclusively competent - Land legislator to law the validity of which was dubious to the constitutional legislator itself can put the Land in want of legislation. This may be for an indefinite period even if there is a constitutional jurisdiction, since it is totally uncertain whether and when the Constitutional Court will be invoked and since it is called upon to state the law only in very specific types of procedure and under specific procedural preconditions. It could not therefore be foreseen when and in what circumstances a court decision could provide clarification as to whether and to what extent the legislator was bound. The existence of an indefinitely long state of uncertainty and inclarity as to the limits of the legislator's power in legislation would be hard to reconcile with principles of the rule of law.
The fact that the Federal Constitutional Court has now been invoked in the present constitutional dispute cannot dispel these misgivings.
c) It cannot follow even from the directive of Article 123 (2) Basic Law that treaties remain in force "until new treaties are concluded by the agencies competent under this Basic Law, or until they are in any other way terminated pursuant to their provisions" that the Land legislator is to be bound. If this interpretation were correct, then Länder could not make domestic law contradicting such treaties without infringing the right of the Federation vis-à-vis them arising out of Article 123 (2) Basic Law. Nor could the Federal legislator make law in this area either, being without legislative competence in this area. The power of disposal over this stock of law would on this view be formally with the Federal Government, being alone in principle capable of determining by binding declarations on behalf of the Federal Republic of Germany in international transactions whether the treaty content should be kept to or not. This result is untenable. It would mean that the government organ of the Federation could alone decide as to Land law. This would not only contravene the distribution of competences between the Federation and the Länder but additionally curtail the legislative powers of a legislative organ of the Land in favour of the government of the Federation.
d) The supposition that the Länder legislator is by Article 123 (2) constitutionally bound by the schools provisions of the Reich Concordat until a new concordat is concluded between the Land and the Holy See would for an indefinite period make a fundamental decision of the Basic Law, namely the guarantee of exclusive competence in the area of schooling for the Länder, nugatory. It cannot be argued against this that this would apply only for a transitional period, namely up to the conclusion of new Länder concordats. The bringing about of new concordat-type agreements by the Länder in the area of schools law would depend on whether the existing parties to the Reich Concordat voluntarily wished to give up their legal positions. Apart from that, the case is conceivable that a Land might not want to be bound by concordat in the area of schools law; it would then not be able at all to free itself from the Reich Concordat. Considered thus, the regulation of Article 123 (2) Basic Law would then be only apparently an exceptional regulation for a transitional period; in reality it would for the sphere of schools law mean a lasting constitutional binding of the Land legislator to the concordat position existing today. The alternative that the treaties could in some other way be terminated pursuant to their provisions is without practical significance for the Reich Concordat since it was neither concluded for a limited period nor provides for the possibility of denunciation.
How far the Länder's obligation to the Federation to observe treaties that bind the Federal Republic of Germany in international law in general goes need not be investigated here. For at any rate it is not possible to derive from the constitutional order created by the Basic Law a duty of the Länder towards the Federation to comply with the schools provisions of the Reich Concordat in their legislation. The assumption of any such duty would conflict with the fundamental decisions of the Basic Law that shape the relationship between Federation and Länder specifically in the present connection. These fundamental decisions are taken in Articles 7, 30 and 70 ff. Basic Law. They state - by contrast with the Weimar Constitution - that the Länder are the exclusive bearers of cultural sovereignty, limited in the area of the denomination structure of schooling only by the provisions of Articles 7 and 141 Basic Law. It is an essential element in the Federal State structure of the Federal Republic of Germany.
1. It should be taken as a starting point that in the area of the exclusive legislative competence of the Länder these alone are empowered to shape the law. Articles 30 and 70 ff. Basic Law express this principle with great clarity. The legislative freedom of the Länder in this area is limited only by the duties arising out of Federal constitutional law, since other Federal law cannot be enacted in the area of the exclusive legislative competence of the Länder.
It is therefore to be regarded as an essential principle of Federal constitutional law that the Länder are not subject in their legislative areas to any other binding than by the Basic Law. This principle also applies to Länder legislation in relation to law which by Article 123 (1) and (2) Basic Law continues to be in force.
The Basic Law assigns schools law exclusively to the area of Länder sovereignty. Schools law is not listed in the catalogue of competences in Article 71 ff. Basic Law. Accordingly, in this area the Federation - by contrast with the constitutional order of the Weimar Republic, which in the area of schooling assigned the Reich, pursuant to Article 10 (2) of the Weimar Constitution, the right to legislate as to principles - has no legislative power (Article 70 ff. Basic Law) and no administrative sovereignty (Article 30 Basic Law).
The constitutional binding of the Länder by the schools provisions of the Reich Concordat would thus be in open contradiction to the power of the Länder to shape schools law freely within the objective bounds of the Basic Law.
2. For the denominational structure of schooling the Basic Law contains a particular objective decision which runs counter to constitutional binding of the Länder by the schools provisions of the Reich Concordat. On the basis of the Länder's freedom to create, the Basic Law sets out in Articles 7 and 41 the limits by which Land legislation is to be bound in this specific area. This arrangement departs significantly from the so-called schools compromise of the Weimar Constitution (Article 146). It does not coincide with the schools provisions of the Reich Concordat. Instead it contains as far as the public denominational school goes no guarantee, and and as far as religious instruction as an ordinary subject goes only an objectively and territorially limited one (Article 7 (3), first sentence, 141 Basic Law).
Article 7 Basic Law contains provisions on State supervision of schools, on religious instruction, which is to be part of the ordinary curriculum in public schools (with the exception of secular schools), and on the right of parents to require participation of children in religious instruction. The provision further regulates the guaranteeing of private schools and the conditions for approval of them.
Article 7 Basic Law contains guarantees of establishment, norms as to fundamental rights and rules of interpretation in the area of schools law. Its significance therefore goes beyond that of a fundamental right. It sets up principles for the denominational structure of schooling. There is no guarantee in this provision for taking the will of those holding parental power into account in the religious and ideological structure of public schools. This will is by Article 7 (4) and (5) taken into account only in the approval of private denominational schools (including elementary schools). The provisions as to private schools do not accordingly restore the legal position of the Weimar period. They go beyond it by explicitly guaranteeing the institution of private schools. The schools provisions of the Reich Concordat are accordingly taken into account not in the structure of public schools but only in the guaranteeing of private schools.
The Basic Law confines itself to the regulation of Article 7, as the background materials on the Basic Law clearly bring out, because the political forces that shaped the Basic Law in the main rejected any further-reaching binding of the Land legislator as to the denominational structure of schooling. In the preliminary discussion on Article 7 Basic Law, motions were repeatedly tabled aiming at constitutional guarantees of denominational schools and religious instruction as in Articles 21, 23 of the Reich Concordat (cf. JöH op.cit. p.101 ff.). As regards public denominational schools they did not win through and as regards religious instruction not for the "secular schools" (Article 7 (3), first sentence, Basic Law). Finally, as regards religious instruction an exception was even made in favour of those Länder in which on 1 January 1949 a regulation departing from Article 7 (3), first sentence, Basic Law - and therefore also from Article 21 of the Reich Concordat - existed (Article 141 Basic Law). In this connection it was repeatedly pointed out, as regards both Article 7 Basic Law and Article 141 Basic Law, that the Länder ought not to have their competence to regulate questions of schools policy curtailed (cf. deputies Dr.Heuss and Dr.Menzel in the 29th session of the Committee on Principles; deputy Dr. Heuss in the 21st session of the Main Committee [StenBer p.247]; deputy Schönfelder, ibid. p.252; deputy Zimmermann, ibid. p.252 f.; deputy Schönfelder in the 43rd session of the Main Committee [StenBer p.555]; deputy Ehlers ibid. p.557; deputy von Mangoldt in the 9th session of the Parliamentary Council [StenBer p.177]; deputy Dr. Menzel in the 10th session of the Parliamentary Council [StenBer p.205]).
Thus considered, Article 7 is indeed to be understood to the effect that it contains in full the constitutional restrictions on Länder legislators, at any rate as regards the confessional structure of schooling. Article 7 sets out the maximum bounds in this area that can politically and legally be expected of the Länder having regard to the specific unique situation of creating the Basic Law and the intensification expressed in it of the federalist principle.
The circumstance has been adduced against this that Article 7 Basic Law remains behind the provisions of the Reich Concordat, not freeing the Länder from an obligation upon them vis-à-vis the Federation to comply with the further-reaching schools provisions of the Reich Concordat. This view is not correct. It would lead to the contrary of what the majority of the Parliamentary Council wanted, namely to the binding instead of freeing of the Land legislator.
3. The meaning of Article 7 Basic Law in the context to be discussed here can be understood correctly only against the background of the total situation encountered by the Basic Law in the area of schools law.
From 1933 to 1945 the schools provisions of the Reich Concordat were not enforced and frequently contravened.
Following the collapse of Reich authority in 1945 there came the building up of the German State with the assistance of the Länder. It was they in which the national life reconstituted itself, at a period when the overall German State was not yet capable of action again. In line with this state of affairs, the Länder could during this period amend former Reich law.
Accordingly, the Basic Law has also explicitly recognized amendments to former Reich law by the Länder in this period (Article 125 (2) Basic Law).
The Länder, in whose State structure the schools question had special weight and was an object of lively controversy, frequently departed from the schools provisions of the Reich Concordat. Thus, the constitutions of several Länder provided for the Christian non-denominational school as the sole form of school (Article 28 (1) of the Constitution of Land Baden of 22 May 1947, Article 32 (1) of the Land Constitution of the Free Hanseatic City of Bremen of 21 October 1947, Article 37 (3) of the Constitution of Württemberg-Baden of 28 November 1946). Land Bremen, contrary to Article 21 of the Reich Concordat, even excluded religious instruction as an ordinary curriculum subject (Article 32 of the Land Constitution, etc.). On the basis of para.35 of the Act on schooling of 11 November 1970 (Hamb. Gesetzsammlung I p.117) Hamburg ran its schools exclusively as non-denominational schools. Its schools authority explicitly opposed the introduction of denominational schools at the Parliamentary Council (see deputy Schönfelder in the 43rd session of the Main Committee of the Parliamentary Council [StenBer p.555 f.]).
In Articles 56, 156 of its Constitution of 11 December 1946 Hesse laid down provisions containing an institutional guarantee of non-denominational schools (Article 56 (2)) but in other respects restricting the legislator only through the directive to take measures to prevent "religious and philosophical principles according to which those holding parental power wish to have their children brought up contravened in school" (Article 56 (7)).
The Länder of Bavaria, the Rhineland Palatinate and Württemberg-Hohenzol-lern in their constitutions arranged the denominational structure of schooling in such a way as to be compatible with the principles of the Reich Concordat (Article 135 f. of the Constitution of the Free State of Bavaria of 2 December 1946, Article 29 f. 34 of the Constitution of Rhineland Palatinate of 18 May 1947, Article 114 of the Constitution of Württemberg-Hohenzollern of 20 May 1947).
According to the overall position in schools law, then, the constitutional legislator had to start from the fact that the newly created schools law of a considerable part of the area to which the Basic Law would apply contradicted the schools provisions of the Reich Concordat. How these occurences are to be judged from the viewpoint of international law cannot come into it here. In any case the Parliamentary Council found this as the factual position created by the dynamics of events, and this too has legal relevance.
This legal position, and in objective connection with it the circumstance that the new constitutional order gave school law into the exclusive legislative competence of the Länder, would have made it necessary for the Basic Law explicitly so to order were fulfilment of the schools provisions of the Reich Concordat to be made a duty on the Länder. In view of the non-uniform legal position in the area of schooling in the Länder and of its own decisions in this sphere (Article 7, 141) the Basic Law could not if it wanted also to guarantee compliance with the schools provisions of the Reich Concordat by the Länder be silent thereon. Nor could it content itself with generally directing the continued validity of domestic law corresponding to treaties of the German Reich. As set forth above, this directive neither removed contradictory Länder law nor bound Länder legislators by the law continuing to be in force.
4. The result arrived at becomes particularly clear from Article 141 Basic Law. This provision frees Länder in which religious instruction was not an ordinary curriculum subject on 1 January 1949, in contradiction with the provision of Article 21 of the Reich Concordat, from the obligation, laid down in Article 7 Basic Law too, of maintaining religious instruction in all public schools, with the exception of secular schools, as an ordinary curriculum subject. It cannot be assumed that the Constitution would, had it wanted to make compliance with the schools provisions of the Reich Concordat into an obligation on the Länder, itself have approved an exception to this. Moreover, the dispensation from a constitutional obligation that partly coincides with a duty under the Concordat is made through a positive provision of the Basic Law, whereas a duty to comply with the schools provisions of the Reich Concordat does not result at any rate from the written Constitution. It is therefore impermissible to assume that the Basic Law, in contradiction with its own positive provisions, imposes such a duty on the Länder tacitly, albeit not explicitly.
5. To understand the constitutional order of the Federal Republic of Germany properly, it must be borne in mind that the division of competences between Federation and Länder brought about by the Basic Law was not a splitting of a unitary State power that had until the creation of the Federal State been exercised unrestrictedly. The occurrences of the years 1945 to 1949 did not mean only a change in the form of the State. They cannot be compared with the transformation of an indisputably existing unitary State into a Federal State. German State authority in Federation in Länder was instead given a new order and form in a fundamentally new construction in place of the State organization which had entirely collapsed and been completely removed in 1945 (cf. BVerfGE 3, 58 [85 ff.,115 f.]). The fact that this new construction came about with priority in time for the development of the Statehood of the Länder before formation of the overall German State organization faced the constitutional legislator in two respects with accomplished facts. On the one hand law in the Länder had developed largely autonomously, to an extent, as the present case among others shows, that made it impossible for the Basic Law to ignore this special development of law. This is expressed particularly in Article 125 (2) Basic Law. On the other hand, the powers of the Länder could not be arbitrarily curtailed, if only because of the political weight that they then already had. The Basic Law also required ratification by the representative assemblies of two-thirds of the German Länder (Article 144 (1) Basic Law). In these circumstances of constitutional politics, the Federal Constitution could not guarantee compliance by the Länder with commitments entered into by the Reich authorities so comprehensively as it perhaps could have done with external commitments of the Federal Republic, had it had as its object the subdivision of unitary State power exercised without disruption over Federation and Länder.
In interpreting the Basic Law, one must start from the internal harmony of the constitutional structure that gave the German State a new federalist democratic order in place of a unitary State dictatorship. The basic decisions of this constitutional structure, among them assignment of sovereignty in the area of schooling to the Länder, are incompatible with the supposition that the Länder are obligated to the Bund to comply with the schools provisions of the Reich Concordat.
Among the constitutional norms intrinsic to the Basic Law that regulate the relationship between the Federation and the Länder is the constitutional principle of federal comity. It can be properly understood only if looked at together with all the other constitutional norms that regulate this relationship.
The Länder, just like the Federation, have the constitutional obligation to cooperate in accordance with the essence of the constitutional "alliance" that ties them together and to contribute to its strengthening and to the safeguarding of the well-understood interests of the Federation and its members (BVerfGE 1, 299 ; see also BVerfGE 1, 117 ; 3, 52 ). From this there results a restriction on Länder legislators. If the effects of a statutory regulation are not confined to the territory of the Land, the Land legislator must have regard to the interests of the Federation and of the other Länder. Where a Land legislator has evidently abused its freedom, contravening this duty of consideration, then its conduct is unconstitutional (BVerfGE 4,, 115 ).
It may be deduced from this also that in the Federal State nothing should happen that harms the whole or one of the members. Accordingly, federal comity requires the consideration of every member for situations of interests and tensions that arise in the Federation, in particular the outward-directed interests of the Federation. It must be concluded that particularly in the area of foreign relations, in which the Federation has the presumption of competence in its favour, the Länder's duty of loyalty towards the Federation is to be taken particularly seriously.
However, a duty on the Länder towards the Federation to comply with the schools provisions of the Reich Concordat does not follow from the principle of federal comity:
1. The decision of the Basic Law according to which the Länder are constitutionally restricted in the denominational structure of schooling only by Article 7 Basic Law rules out any further-reaching duty of the Länder towards the Federation in this sphere.
2. Concordats do not come under the provisions of Articles 32 and 59 Basic Law. It follows that the competence to conclude concordats follows domestic legislative competence. The Länder can accordingly conduct their concordat relationships in the area of their exclusive legislative competence without interference from the Federation. It follows from this legal position that in the case of duties under the Reich Concordat in spheres falling domestically within the exclusive legislative competence of the Länder, the Federation has no constitutional possibility of asserting its interests against the Länder. It must be left up to agreement between Federation and Länder on a footing of equality to create an acceptable compromise in the event of tensions between Federal and Länder interests.
1. It cannot be alleged against the finding arrived at that it cannot be reconciled with the Basic Law's support for international law expressed in Article 25 Basic Law. Such a view would fail to recognize that the Basic Law does not go so far in its support for international law as to secure compliance with existing international treaties by binding the legislator to law corresponding with them. The Basic Law does not regard constitutional binding of legislation by treaty law as necessary either for treaties the object of which is subject to Federal legislation or for Länder treaties whose object is by the Basic Law part of Länder legislation. The Basic Law leaves fulfilment of existing treaty obligations in international law to the responsibility of the competent legislator. Article 25 Basic Law accords only the "general rules of public international law" the quality of domestic law and precedence over the laws. This provision has the effect that these rules, without a transposing act, that is, directly, have entry to the German legal system and have primacy over German domestic law - not constitutional law. These legal principles accordingly outweigh any norm from a German source of law that falls short of them or contradicts them. Particular treaty agreements, even where they lay down objective law, do not enjoy this constitutional position. The legislator accordingly has power of disposition over the stock of law even where a treaty commitment exists, insofar as it does not have as its object general rules of public international law.
It has been asserted that the constitutional duty of the Länder to comply with the schools provisions of the Reich Concordat follows merely from the fact that they are parts of the German Reich, bound by the treaty, with which the Federal Republic of Germany is identical.
However, such a Federal obligation on the Länder cannot be justified on this ground.
The legal evaluation of questions bound up with the implementation of the Reich Concordat must certainly start from the fact that the legally validly concluded Reich Concordat lays commitments on the German Reich as a State entity. The German Reich has not disappeared as a subject of international law. However, after 8 May 1945 it lost its State organization. In the area to which the Basic Law applies the State entity is realized through the Federal Republic of Germany as a Federal State, the members of which are the Federation and the Länder. It is to this State entity that today the rights and duties arising out of the Reich Concordat still refer.
But the issue in the present proceedings is not whether and to what extent fulfilment of the obligations in international law of the Federal Republic of Germany towards the Holy See is incumbent on the Länder as members of the whole. The petitioner here claims that he has had rights which by the Basic Law are due him vis-à-vis the Land of Lower Saxony infringed by the schools Act of the Land of Lower Saxony because it does not comply with the schools provisions of the Concordat. It is only with this allegation that he can be heard, since the infringement of rights of the Federation claimed is the precondition for admissibility of the proceedings (paras.64 (1), 69 BVerfGG). Accordingly, in this connection the only point is whether such a duty is incumbent on the Länder vis-à-vis the Bund, that is, whether it is a constitutional duty on the fulfilment of which the Federation can insist.
The answer to the question raised can be given only from the overall content of the constitutional order of the Federal Republic of Germany. It does not follow from the notion that with enactment of the Basic Law the Federal Republic of Germany, identical with the German Reich, is the contracting party and therefore alone committed by the Reich Concordat in international law. For it would not necessarily follow therefrom that the Länder would as members of the whole be obligated vis-à-vis the whole in constitutional law to comply with the schools provisions of this Concordat. Such a view would draw inadmissible constitutional conclusions from the identity of the Federal Republic of Germany with the German Reich.
Insofar as it is a case of treaty obligations in international law, a State transformed from a unitary State into a Federal State can either bind its members by its own duties or leave them the corresponding empowerments for fulfilling these duties and allow them the freedom which would be due to it itself under constitutional law. There can be no doubt that both solutions are constitutionally admissible to the extent that the constitutional legislator is free. Were that to be doubted, one would have to show a principle of law, binding on the constitutional legislator, to the effect that if following collapse of the State it creates a new constitution it would have to ensure that commitments in international law undertaken by the unitary State could now be filled by the newly constituted Federal State. Whether the constitutional legislator infringes or prejudices existing treaty obligations by one solution or the other is a different question, which however does not affect the validity of the Constitution.
The Basic Law has, as already shown, decided that it denies the Federation competence for legislation and administration in the sphere of schools law and assigns this sphere to the Länder as an exclusive task. In this it did not disassociate itself from the schools provisions of the Reich Concordat, but left it up to the Länder, on their own responsibility and free decision, to decide how, having regard to the Federal Republic of Germany's commitment in international law to the Reich Concordat, they wish to shape their schools law. It has moreover refrained from allowing the Federation the power to intervene in decision-making processes of Länder in carrying out this task, in virtue of constitutional law.
3. In the theory of international law, the opinion is put forward that a Federal State cannot vis-à-vis its contracting partners in international law appeal to the fact that its constitution does not give it any means of proceeding against its member States that make it impossible for it to carry out its commitments in international law. According to the prevailing doctrine, a Federal State is in such a case obliged in international law to secure the corresponding constitutional means to be able to carry out all obligations assumed.
This doctrine of international law cannot be directly applied to the present case. It primarily contemplates the case where a Federal State has, according to its competences, assumed by treaty obligations in international law that it cannot fulfil according to its domestic law. But this is not the case with the Reich Concordat. This international treaty was certainly concluded by the German Reich in accordance with its competences. The resulting obligations for the Federal Republic of Germany have not been assumed by it but come down to it, since in international law it must because of its identity with the German Reich stand by its treaty. The Basic Law has not equipped the Federation with any resources enabling it either itself to fulfil the schools provisions of the Reich Concordat or to secure their fulfilment.
But if the finding in international law mentioned could be applied to the duties of the Federal Republic of Germany in respect of the Reich Concordat, then all that would follow would be a presumption that the Basic Law wished to secure the greatest possible guarantee of fulfilling the treaty. This presumption cannot, however, apply where - as here - it is clear that the constitutional legislator was not prepared to equip the Federation with the corresponding power resources to guarantee fulfilment of the schools provisions of the Reich Concordat. Legal consequences from a treaty that binds a Federal State in international law arise for the member States exclusively in accordance with constitutional law. This position in domestic law cannot be judged according to international law, but is regulated exclusively by the legal order of the Federal State.
It need not be considered whether the Federal Republic of Germany is liable to the Holy See for conduct by a Land contrary to the Concordat. Any liability of the Federation in international law could not change anything in the constitutional position vis-à-vis the Land either.
The Federal Government's petition is unjustified. Were the Lower Saxon schools law to contravene the schools provisions of the Reich Concordat, the Federation's rights vis-à-vis the Land would not be infringed. Accordingly, review of the objective compatibility of the Lower Saxon Schools Act with the provisions of the Reich Concordat is superfluous. The Federal Government's petition must therefore be rejected.
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