Article 23 of the Basic Law for the Federal Republic of Germany (1949)

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The Article 23 of the Basic Law for the Federal Republic of Germany as amended in 1949 is now repealed Constitution article that the scope of the Basic Law in the newly created Federal Republic of Germany regulated. Furthermore, it was considered an accession article that enabled the adoption of the Basic Law for “ other parts of Germany ” or countries that were added later .

Wording of the article

The original version of May 23, 1949 read:

“This Basic Law initially applies in the areas of the states of Baden, Bavaria, Bremen, Greater Berlin, Hamburg, Hesse, Lower Saxony, North Rhine-Westphalia, Rhineland-Palatinate, Schleswig-Holstein, Württemberg-Baden and Württemberg-Hohenzollern. In other parts of Germany it is to be put into effect after their accession. "

Regulation of the scope of the Basic Law

Although a new federal state was formed through the unification of Baden , Württemberg-Baden and Württemberg-Hohenzollern to Baden-Württemberg in 1952 and the Saarland joined the Federal Republic in 1957, the list of the German federal states in Art. 23 sentence 1 GG old version and in the wording remained the preamble of the Basic Law unchanged until 1990.

Article 23 was of particular importance for the Berlin question . Because while the preamble to the Basic Law did not mention Berlin , Article 23 explicitly named " Greater Berlin " as one of the countries in whose territory the Basic Law "initially" applies. In the letter of approval from the military governors for the Basic Law of May 12, 1949 , the reservation was formulated that the content of Articles 23 old and 144 (2) GG was interpreted to mean “[...] that it represents the acceptance of our earlier request, so that Berlin was not entitled to vote Membership in the Bundestag or Bundesrat will be maintained and will not be governed by the Bund, but that it may nominate a limited number of representatives to participate in the meetings of these legislative bodies ”.

The relationship between the four-power rights and German constitutional law took on a special position : the former superimposed this federal law “by virtue of its effectiveness”, but could not extinguish it in “its domestic mandatory existence” and consequently were not “superconstitutional law”. The Federal Republic of Germany accepted the victorious rights of its three protecting powers in political terms, because under the circumstances they were the only guarantee for the continued existence of Germany and the security of Berlin , but they had not been given their own legal basis. For this reason, “for all organs of the Federal Republic of Germany, the determination of the Basic Law that Berlin is basically a Land [of the Federal Republic] (Art. 23 [old version - called ' Greater Berlin ' there], 144 II GG), although this Legal opinion was not shared by the victorious powers ”.
"Due to the narrower version [of the] letter [of the three western military governors on the Basic Law], in which there was no longer any mention of a suspension of Article 23, the opinion prevailed in the Federal Republic of Germany that Article 23 was not suspended and (West) Berlin therefore a state of the Federal Republic ( BVerfGE 7, 1 [7, 10] ...). "

Since the repeal of the article, the scope of application of the Basic Law results from the preamble changed by the Unification Treaty.

Membership scheme

The accession regulation of this article found practical application in 1957 when the Saarland joined and in 1990 when German reunification .

Saarland

In October 1955, the long-prepared second Saar Statute , which was supposed to create an autonomous Saar state under European administration and as the center of a united Europe, was unexpectedly rejected by a large majority in a referendum . This vote was generally seen as an expression of the will to join the Federal Republic of Germany. The new elections to the state parliament, called immediately afterwards, paved the way for membership. On December 13th and 14th, 1956, the state parliament of Saarland decided to join in accordance with Art. 23 GG old version. In the following days, some necessary adjustments were made to the Saarland constitution . The German Bundestag then passed the law on the integration of the Saarland . On January 1, 1957, Saarland became the tenth federal state (excluding Berlin) of the then Federal Republic.

German reunification

While the negotiations on the Unification Treaty were ongoing, heated discussions broke out among constitutional lawyers as well as in the public of the two German states at the time about the better way: accession according to Article 23 sentence 2 of the Basic Law or a reconstitution of the German state according to Article 146 of the Basic Law. In August 1990, the People's Chamber of the German Democratic Republic (GDR) voted for accession under Article 23 of the Basic Law; the path that the then Federal Minister of the Interior Wolfgang Schäuble preferred and which Federal Chancellor Helmut Kohl also described as the “royal path ”.

In the Two-Plus-Four Treaty of September 12, 1990, it was declared that the borders of Germany established with the reunification were final and that no territorial claims against third countries would be asserted (this particularly concerned the former East German territories, which today largely belonged to Poland ). The two German states at the time undertook to shape the constitution of the unified Germany in such a way that it does not contradict these principles, and in particular to adapt the preamble and Articles 23 and 146 of the Basic Law accordingly. Art. 23 old version became according to Art. 4 No. 2 EV, which came into force on September 29, 1990 with mutual ratification according to Art. 45 EV , with the accession of the GDR to the Federal Republic of Germany, which came into effect on October 3, 1990 canceled.

Development after the article was canceled

From October 3, 1990, there was initially no longer Article 23 in the Basic Law. By a law of December 21, 1992, which came into force on December 25, 1992, today's Article 23 of the Basic Law , the so-called Europe Article , was inserted in its place.

Individual evidence

  1. ^ A b Dieter Hesselberger : The Basic Law - Commentary for political education . 13th ed .; Special edition for the state centers for political education . Wolters Kluwer, Munich / Unterschleißheim 2003, pp. 39, 207.
  2. ^ Letter of approval from the military governors of the British, French and American occupation zones for the Basic Law of May 12, 1949
  3. ^ Hans Heinrich Mahnke: Documents on the Berlin question, 1967–1986, Volume 2. Writings of the research institute of the German Society for Foreign Policy. International Politics and Economy series; 52, 2. Oldenbourg Wissenschaftsverlag, Munich 1987, ISBN 3-486-54311-3 , p. 271 ( limited preview in the Google book search).
  4. ↑ Quoted from Dieter Blumenwitz in: NJW 1988, pp. 607, 612, fn. 61  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. .@1@ 2Template: Dead Link / www.krr-faq.net  
  5. ↑ Quotation from: Ingo von Münch , Philip Kunig (ed.): Basic Law Commentary. Volume 2, 3rd edition. CH Beck, Munich 1995, ISBN 3-406-38483-8 , Rn 8 to Art. 23 GG (old version) ( online  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the Link according to the instructions and then remove this note. ).@1@ 2Template: Dead Link / www.krr-faq.net  
  6. ↑ Knut Ipsen : War weapons control and foreign business. In: Ulrich Beyerlin u. a. (Ed.): Law between upheaval and preservation. Festschrift for Rudolf Bernhardt . (= Contributions to foreign public law and international law; vol. 120), Springer, Berlin / Heidelberg / New York 1995, ISBN 3-540-58130-8 , p. 1043 f. ( limited preview in Google Book search).
  7. ↑ a b A long way to Europe. The special role of the Saarland until 1955. ( Memento from February 26, 2014 in the Internet Archive ) State Parliament of Saarland, accessed on August 24, 2012.
  8. ↑ Saarland's declaration of membership in accordance with the Basic Law of the Federal Republic of Germany of December 14, 1956, Saarland Official Gazette 1956, p. 1645 (PDF; 233 kB).
  9. ^ Law on the integration of the Saarland of December 23, 1956
  10. ↑ Article 23 of the Basic Law. In: Chronik der Wende , glossary
  11. ^ Robert Leicht : Unity through joining. In: Die Zeit , February 23, 1990.
  12. ↑ Ursula Münch : 1990: Basic Law or New Constitution? (September 1, 2008), Federal Agency for Civic Education / bpb.
  13. ↑ a b A. Jeschke, W. Malanowski: Königsweg or Holzweg. Professor Ernst Benda on constitutional issues relating to German unification . In: Der Spiegel . No. 18 , 1990, pp. 75-85 ( online ).
  14. ^ Manfred Görtemaker : Shaping the reunification. In: Information on Political Education No. 250/2009.
  15. ↑ Article 1 of the treaty on the final regulation with regard to Germany
  16. ↑ Art. 1 Para. 1 EV
  17. ^ AA Horst Dreier , The Basic Law - a constitution on demand? , in: From Politics and Contemporary History (APUZ 18–19 / 2009). Printed in: Federal Center for Political Education, 60 Years of the Basic Law , Bonn 2009. Dreier assumes that Art. 23 old version (or its deletion) will expire on September 29, 1990. Likewise, H. H. Klein , in: Josef Isensee / Paul Kirchhof (ed.), Handbuch des Staatsrechts der Bundes Republik Deutschland , Vol. VIII, Heidelberg 1995, § 198, p. 560 f .; see. also Peter Lerche , in: Handbuch des Staatsrechts VIII, § 194, Rn 52.
  18. ^ German Bundestag: Changes to the Basic Law since 1949 ( Memento of December 2, 2013 in the Internet Archive ) (PDF; 872 kB)