Article 116 of the Basic Law for the Federal Republic of Germany
Article 116 of the Basic Law for the Federal Republic of Germany regulates who is German within the meaning of the Basic Law (concept of citizen). It is divided into two paragraphs.
(1) Unless otherwise stipulated by law, a German within the meaning of this Basic Law is anyone who has German citizenship or has been accepted as a refugee or expellee of German nationality or as his spouse or descendant in the territory of the German Reich as of December 31, 1937 .
(2) Former German citizens who between January 30, 1933 the and 8 May 1945 the citizenship on political, racial or religious grounds withdrawn has been, and their descendants are, upon request to naturalize . They are not considered to have been expatriated if they took up residence in Germany after May 8, 1945 and did not express an opposite will.
In paragraph 1, the article provides a legal definition of the term German . The Basic Law is the first German constitution in which this happens. German is therefore an umbrella term and includes both German citizens and the refugees and displaced persons of German ethnicity mentioned below. A citizen is therefore anyone who has German citizenship, as well as persons who are treated as such and who in this respect are bearers of civil rights and obligations. With this concept of the citizen, the Basic Law differentiates between (all) people (Art. 1–5 GG), German citizens and Union citizens of the European Union . The definition that anyone who has German citizenship is German is tautological .
What is new is the independent legal concept of so-called status German , which the authors of the Basic Law created in Article 116. With him, they did not want to simply grant the ethnic Germans German citizenship or treat them as foreigners . German citizens cannot be status Germans. These are, however, legally equivalent to those, in particular with regard to the exercise of the basic rights reserved for Germans by the Basic Law, e.g. freedom of assembly and freedom of occupation . The background to this was the millions of Germans who were affected by the population shifts during and after the Second World War . With the concept of German ethnicity, the authors of the Basic Law placed themselves in the continuity of German constitutional history , which is also emphasized with the continued validity of the Reich and Citizenship Act of 1913. The people are not conceived in terms of citizenship, but rather ethnically and culturally. At the same time, they took on historical responsibility for the crimes of the Nazi state : In the areas of Eastern Europe conquered by the Wehrmacht, people who seemed to meet the National Socialist racial criteria were singled out in order to integrate them into the privileged ruling class . After the Red Army liberated these areas , they faced the revenge of the majority population, disenfranchisement and displacement. The Federal Republic now took responsibility for them.
The article is in Section XI of the Basic Law, which contains transitional and final provisions. The article was intended as a temporary measure up to final statutory regulations. According to unanimous jurisprudence, its purpose was to provide displaced ethnic Germans and their families with a legal status that would facilitate their integration into the society of the Federal Republic. This transitional state lasted for more than fifty years. With the law on the reform of citizenship law of July 15, 1999, all status Germans were automatically granted German citizenship with effect from August 1, 1999.
Paragraph 2 of the article is a reaction to the mass expatriation of Jews and opposition members who had fled abroad during the Nazi era . You are granted a legal right to re-naturalization if you live abroad. If they live in Germany, they are not considered to be expatriated. This also shows that the authors of the Basic Law took responsibility for the National Socialist injustice.
According to the historian Dieter Gosewinkel , the conception of citizenship in the Basic Law, as shown in Art. 115, was provisional and backward-looking, it was neither anticipatory nor redesigning. “It placed itself in historical continuity in order to stabilize the fragmented state present and to cope with the consequences of the injustice past”.
- ↑ a b c d Dieter Gosewinkel : Naturalization and exclusion. The nationalization of citizenship from the German Confederation to the Federal Republic of Germany . 2nd edition, Vandenhoeck & Ruprecht, Göttingen 2003, p. 422.
- ^ Christof Gramm / Stefan Ulrich Pieper: Basic Law, Citizen Commentary . 3rd edition, Nomos, Baden-Baden 2015, p. 30.
- ^ Christof Gramm / Stefan Ulrich Pieper: Basic Law, Citizen Commentary . 3rd edition 2015, p. 31.
- ^ Ingo von Münch : The German citizenship. Past - present - future . De Gruyter Recht, Berlin 2007, ISBN 978-3-89949-433-4 , pp. 109–113 (accessed via De Gruyter Online).
- ^ Ingo von Münch: The German citizenship. Past - present - future . De Gruyter Recht, Berlin 2007, ISBN 978-3-89949-433-4 , p. 113 (accessed via De Gruyter Online).
- ^ Dieter Hesselberger with the collaboration of Helmut Nörenberg: Das Grundgesetz. Commentary for political education . 9th, improved edition, Luchterhand, Neuwied 1995, p. 341.
- ↑ Dieter Gosewinkel: Naturalization and Exclusion. The nationalization of citizenship from the German Confederation to the Federal Republic of Germany . 2nd edition, Vandenhoeck & Ruprecht, Göttingen 2003, p. 422 f.