- BVerfGE 1, 281 1 BvQ 6/52 Europäische Verteidigungsgemeinschaft-decision European Defence Community Art. 59 II GG
- 15 May 1952
- Dr. Dr. Höpker-Aschoff, Ellinghaus, Dr. Scheffler, Dr. Scholtissek, Dr. Stein, Wessel, Ritterspach, Lehmann, Dr. Zweigert.
- © Nomos Verlagsgesellschaft
Order of the First Senate of 15 May 1952 - 1 BvQ 6/52 -
in the proceedings for rendition of an interlocutory order at the instance of Bundestag member L.A. and other Bundestag members.
The application is rejected.
EXTRACT FROM GROUNDS:
The applicants made an application for a finding that Federal Law regulating the involvement of Germans in armed forces or putting Germans under an obligation of military service is neither formally nor objectively compatible with the Basic Law, without prior supplementation and amendment of the Basic Law.
This application - 1 BvF 1/52 - has not yet been decided. In connection with these proceedings the applicants made an application for an interlocutory order to enjoin the Federal Chancellor and Federal Minister of Foreign Affairs of the Federal Republic of Germany to make an explicit reservation when signing the general treaty to terminate the state of occupation and the ancillary treaties, in particular the Treaty on the European Defence Community, that these treaties cannot enter into force or that the instrument of ratification cannot be deposited by the German side before the Federal Constitutional Court has decided on the constitutional prerequisites for the coming into force of the Treaties, or for their ratification.
It may appear doubtful whether an interlocutory order laying a duty on the person reponsible for the foreign policy of the Federal Republic to make a declaration of a particular, legally substantial, content when signing an international treaty falls at all within the jurisdiction of the Constitutional Court, and ought not instead to be regarded as undue restriction of the political discretion to be allowed a Federal Chancellor.
The Federal Constitutional Court has at any rate not managed to convince itself, following thorough evaluation of the applicants' case, that at the present time the prerequisites for an interlocutory order are present. According to the Federal Chancellor's statements, the Treaties will be submitted to the legislative bodies of the Federation, pursuant to Article 59 (2) Basic Law, for decision in the form of a Federal Act. The preconditions for an interlocutory order could accordingly be seen as being met only, where without such an order at this very point in time the danger feared by the applicants of irreversible legal constraints on the Federal Republic could not be warded off. But this is not the case. Signature of the prospective international treaties by the Federal Chancellor does not in itself produce any effects in either constitutional or international law. By the clear tenor of Article 59 Basic Law, such effects cannot come about before the legislative bodies and the Federal President have dealt with the treaties. The constitutional procedure to be adhered to here is carried out with the constant involvement and supervision of all the constitutional organs, and of the applicants themselves, since as Bundestag members they take part in the parliament's work.
The Federal Constitutional Court can still, following decision by the legislative bodies, by issuing an interlocutory order - either on application or proprio motu - prevent irrevocable commitments in international or constitutional law from being entered into before its decision on the main issue. It could by such an order in particular defer the validity in international law of the act establishing the treaties, namely ratification by the Federal President, until its final decision.
This being the case, it cannot be accepted that in order to ward off severe disadvantages or for some other important reason of the common weal the issuing of an interlocutory order could be necessary at this time.
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