Order of the Second Senate of 26 March 1957

Reasons:

A.

1

The subject-matter of the legal dispute is the disagreement between the Federation and the Land of Lower Saxony whether, by enacting the Act on the State School System in Lower Saxony (Gesetz über das öffentliche Schulwesen in Niedersachsen) of 14 September 1954 (Lower Saxony Law and Ordinance Gazette, Niedersächsisches Gesetz- und Verordnungsblatt ‒ Nds GVBl 1954 p. 89), the Land of Lower Saxony has infringed the Concordat entered into between the Holy See and the German Reich on 20 July 1933 (Reich Law Gazette, Reichsgesetzblatt – RGBl II p. 679) and thereby violated a right of the Federation to have the Länder respect international treaties that are binding upon it. The background to this disagreement is as follows:

2-6

1. […]

7

2. During the Weimar era, the Länder of Bavaria (1924), Prussia (1929) and Baden (1932) entered into concordats with the Holy See and, in connection with this, into corresponding treaties with the Protestant churches. Only the Bavarian Concordat contains provisions regarding the school system.

8

Repeated efforts to conclude a concordat between the Holy See and the Reich were not successful during the Weimar Republic – with a last failed attempt in 1931/32. Shortly after seizing power, the National Socialist Reich Government resumed negotiations with the Holy See on a Reich Concordat in the spring of 1933. On 20 July 1933, they led to the signing of the Concordat and its final protocol by Cardinal Secretary of State Pacelli for the Holy See and by Vice-Chancellor von Papen for the German Reich.

9

In the Reich Law Gazette of 18 September 1933 (II p. 679), the Concordat together with the final protocol was published by notice of 12 September 1933, and it was announced that the treaty had been ratified on 10 September and had entered into force on the same day. Furthermore, the Reich government enacted the Act on the Implementation of the Reich Concordat (Gesetz zur Durchführung des Reichskonkordats) of 12 September 1933 (RGBl I p. 625). It authorised the Reich Minister of the Interior to adopt the legal and administrative regulations necessary to implement the provisions of the Reich Concordat. Such regulations were not adopted.

10-19

[…]

20

The contractual obligations [of the Reich Concordat] did not prevent the National Socialist rulers from gradually abolishing most Catholic schools – as well as Protestant schools – and from making religious education more difficult or preventing it altogether.

21

3. Until the Act on the State School System in Lower Saxony came into force, different laws applied in different parts of Lower Saxony with respect to the ideological organisation of state elementary schools covering the first eight years of education (öffentliche Volksschulen):

22-25

[…]

26

Under the rule of the National Socialists, denominational schools were abolished and replaced by community schools.

27

After the end of the war, the British Military Government, through Education Order No. 1 (Erziehungsanordnung Nr. 1) of 14 January 1946, stipulated that in those parts of the territory where denominational state elementary schools had existed before 1933, parents should be asked whether denominational elementary schools should be reintroduced. The German authorities were instructed to comply with this request if it was compatible with the orderly running of the school. Subsequently, Catholic elementary schools in the sense of the aforementioned laws, which continued to apply, were reintroduced.

28

4. In September 1953, the Land government of Lower Saxony introduced a Draft Act on School Administration (Schulverwaltungsgesetz) to the Landtag (Land parliament). In the parliamentary debate on this act, the call was made for a reorganisation of the denominational set-up of elementary schools. The parliamentary group of the Freie Demokratische Partei (FDP) in the Landtag introduced a bill on this subject. The Land government of Lower Saxony thereupon decided to introduce the Draft Act on the State School System in Lower Saxony (Landtag document, Landtagsdrucksache – LTDrucks no. 1268), dated 4 February 1954, to the Landtag.

29

The apostolic nuncio objected to the Federal Government, and the latter to the Prime Minister of the Land of Lower Saxony, about a number of provisions of this draft act because of their incompatibility with the Reich Concordat. The written correspondence on this matter did not bring about any agreement. The Act on the State School System in Lower Saxony was passed by the Landtag, signed on 14 September 1954 and promulgated on 15 September 1954 (Nds GVBl 1954 p. 89). [...] The provisions regarding the denominational set-up of elementary schools in the Act on the State School System in Lower Saxony apply [...] in all parts of the Land of Lower Saxony with the exception of the territory of the former Land of Oldenburg.

30

The provisions of the Act on the State School System in Lower Saxony objected to by the Federal Government on the grounds of incompatibility with the Reich Concordat read as follows:

§ 2

31

The schools operated by the municipalities, districts, special-purpose associations and the Land (state schools within the meaning of this Act) are fundamentally Christian schools. Within those schools, pupils are educated together regardless of religious belief and ideology. In education and teaching, the sentiments of those with different beliefs must be taken into account.

§ 3

32

The schools have the task of preparing the young people entrusted to them for life and work and to educate and train them on the basis of Christianity, Western culture and German educational heritage to become citizens of a democratic and social constitutional state who think independently and act responsibly.

§ 5

33

(1) Religious education is a regular subject at state schools, with the exception of technical colleges. Religious education is provided separately according to denomination and in line with the principles of the religious communities.

34

(2) Guidelines and textbooks for religious education shall be determined in agreement with the religious communities. […]

35

(3) No teacher shall be compelled to teach religious education.

36

(4) The parents or legal guardians shall decide on participation in religious education. After reaching religious maturity, the pupil is entitled to make this decision. […].

37

(5) […]

38

(6) […]

39

[…]

 § 8

40

(1) On application by the parents or legal guardians, state elementary schools for pupils of the same denomination shall be established within the framework of this Act.

41

(2) […]

42

(3) […]

43-58

[…]

B.

59

In a brief dated 12 March 1955, which was received by the Court on 14 March 1955, the Federal Government, on behalf of the Federation, requested a decision by the Federal Constitutional Court on the disagreement which had arisen with the Land of Lower Saxony.

60

Initially, the Federal Government requested that the Federal Constitutional Court declare that:

61

1) the Reich Concordat of 20 July 1933 continues to apply unchanged in the Federal Republic of Germany;

62

2) by enacting §§ 2 ,3, 5, 6, 8, 9, 10, 11, 12, 13, 14 and 15 of the Act on the State School System in Lower Saxony of 14 September 1954, the Land of Lower Saxony has violated the Reich Concordat, which has been transposed into Reich law, and has thus violated the right of the Federation to respect international treaties that are binding upon it (Arts. 20(3), 32, 25, 123 of the Basic Law, Grundgesetz – GG).

63

In its brief of 19 July 1955 and in the further course of proceedings, the Federal Government stated that the first application was to be understood as a mere suggestion pursuant to § 67 sentence 3 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG).

64

The Government of the Land of Lower Saxony requested that the Federal Government’s application be rejected.

65

The Government of the Land of Hesse intervened in the proceedings on the part of the respondent and requested

66

that the applications of the Federal Government for a declaratory judgment be rejected. In the alternative, it also applied for a declaration that the Land of Hesse, through its constitution, has not violated a right or duty of the Federation under Arts. 20(3), 25, 32 and 123 of the Basic Law in conjunction with the Reich Concordat.

67

Likewise, the Senate of the Free Hanseatic City of Bremen joined the proceedings on the part of the respondent. It requested that

68

the application of the Federal Government be rejected.

69-74

[…]

75

The Federal Government requested that

76

the applications of the Government of Hesse and the Senate of the Free Hanseatic City of Bremen be rejected.

77-80

[…]

81

The oral hearing was held from 4 to 8 June 1956. […]

82-84

[…]

C.

85

1. There is a disagreement between the Federal Government and the Government of Lower Saxony on the rights and obligations of the Federation and the Länder arising from the Basic Law. Such disagreement shall be ruled upon by the Federal Constitutional Court (Art. 93(1) no. 3 of the Basic Law, § 13 no. 7 of the Federal Constitutional Court Act).

86

2. Pursuant to § 68 of the Federal Constitutional Court Act, only the Federal Government can bring an application on behalf of the Federation in such proceedings. A prerequisite for the assertion of rights of the Federation by the Federal Government in proceedings under §§ 68 ff. of the Federal Constitutional Court Act is a decision of the Federal Government as a collegial body. Whether this procedural requirement has been met had to be examined ex officio. According to the certified extract from the minutes of the 74th cabinet meeting submitted by the Federal Government, the resolution was passed on 9 March 1955 to apply to the Federal Constitutional Court to rule on the disagreement. The respondents have contested that this resolution was properly passed. The fact that such a resolution has been passed in accordance with the rules of procedure is evidenced by the submission of an extract from the minutes of the meeting of the cabinet. The Court has to presume that a resolution evidenced by submission of the minutes has been duly passed. […]

87-89

[…]

90

[...] It cannot be required that such a resolution specify in advance the exact wording of the requests to be made; rather, it suffices if it describes the subject-matter of the proceedings to be brought with sufficient clarity. […]

91

3. The applicant only has to maintain the original first application as a suggestion within the meaning of § 67 third sentence of the Federal Constitutional Court Act. If such a suggestion is not followed, no formal decision is required in that regard. Pursuant to § 67 sentence 3 of the Federal Constitutional Court Act, the Federal Constitutional Court may, in the operative part of the decision, also decide on a point of law that is relevant for the interpretation of the provision of the Basic Law and on which the declaration of whether the respondent’s contested act violates a provision of the Basic Law depends. It must therefore be a question of law that is relevant for the interpretation of a provision of the Basic Law or an unwritten constitutional principle. However, such declaration has not been suggested by the Federal Government. This is why the court was not able to grant the suggestion of the Federal Government.

92

The original second application, now the only application, seeks a declaration that provisions of the Act on the State School System in Lower Saxony violate the Reich Concordat that was ‘transposed into Reich law’. It appears that, in the wording of the application, the applicant has included a justification for its application which it considers to be correct. The Federal Constitutional Court interprets the application according to its spirit and purpose; however, the words ‘transposed into Reich law’ have no legal significance. Interpreted in that way, there are no objections to the admissibility of the application.

93

4. The Land governments of the Länder of Bremen and Hesse have joined the respondent. […]

94

5. There are no objections to the admissibility of the applications filed by the Länder requesting the Federal Government’s application be rejected. The subsidiary applications made by the Länder that have joined the respondent must be assessed differently. While the parties involved pursuant to § 65 of the Federal Constitutional Court Act are entitled to file independent applications even if this expands the subject-matter of the dispute, such applications must always be intrinsically linked with the applicant’s application. This does not apply to the subsidiary applications made by the Länder. The subject of this constitutional dispute is the question of whether, by enacting its School Act, the Land of Lower Saxony has violated a duty to observe the international treaties that are binding on the Federation. By contrast, Hesse’s subsidiary application for a declaration that Hesse did not violate a federal right by drafting the school-related provisions of its constitution, and Bremen’s application for a declaration that the Reich Concordat or, in any event, its school-related provisions do not apply or apply only to a limited extent in the Free Hanseatic City of Bremen introduce entirely new and different subject-matters into the legal dispute. Applications of this kind go beyond the limits of § 65 of the Federal Constitutional Court Act.

95

6. In objecting to the admissibility of the proceedings, the respondents argue that a decision on the application of the Federal Government would require the Federal Constitutional Court to rule on the validity of the Reich Concordat under international law – even if only as a preliminary question – but that the Court does not have the jurisdiction to do so. This objection is unfounded. Although the Federal Constitutional Court cannot decide on the validity of the Reich Concordat with binding effect on the parties to the treaty, it is not prevented from deciding on the validity of an international treaty with binding effect on the parties to the constitutional proceedings, i.e. with domestic effect, if this is of importance as a preliminary question for the judgment in constitutional proceedings. This view is consistent with the judgments of the Federal Constitutional Court in Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE 1, 371; l, 413; 2, 367).

96

[…]

97

Lastly, the respondent denies the admissibility of an incidental examination of the validity of the Concordat, also with reference to Art. 33(2) of the Reich Concordat. According to this provision, if any disagreement arises over the interpretation or application of any provision of the Concordat, the Holy See and the German Reich shall reach an amicable solution by common consent. This clause only applies to the relationship between the parties to the treaty. However, a difference of opinion between the Federation and a Land on the domestic consequences to be drawn from provisions of the Reich Concordat cannot be settled by friendly negotiations between the parties to the treaty. On the other hand, a decision on the domestic disagreement does not pre-empt any necessary or desirable friendly understanding between the parties to the treaty.

98

7. […]

99

8. The respondents argue that the violation of the principle of ‘loyalty to the Federation’ cannot be reviewed in court proceedings because the term ‘loyalty to the Federation’ is not defined in law and the violation of this principle cannot therefore be reviewed by judicial methods of determining the law. In that regard it should first be noted that although the Federal Government originally based its application on a violation of the general principle of loyalty to the Federation, in the course of the proceedings it went on to asserting a specific obligation to observe international treaties that are binding on the Federation. Whether a measure violates such an obligation falls within the jurisdiction of the Federal Constitutional Court (cf. BVerfGE 1, 315; 4, 140 f.). It is a constitutional question whether there is an obligation on the Länder to observe federal treaties. Whether statutory provisions enacted by a Land are compatible with the content of the treaty is also a matter of legal interpretation.

100

9. […]

101

10. Lastly, it was argued that the Basic Law only refers to what is known as dependent federal oversight (abhängige Bundesaufsicht) governed by Arts. 84 and 85, i.e. claims of deficiencies in the administrative execution of federal laws. The conclusion drawn from this, i.e. that the Federation is unable to claim that a Land has violated federal constitutional duties outside the context of this ‘dependent’ federal oversight, is unfounded. Rather, Art. 93(1) no. 3 of the Basic Law gives the Federal Constitutional Court general jurisdiction to rule on disagreements concerning the rights and duties of the Federation and the Länder, highlighting as only one group of disagreements (‘especially’) those that may arise in the implementation of federal law by the Länder and in the exercise of federal oversight.

D.

I.

102

1. The assessment of whether the complaint is well-founded must start with an examination of whether the Reich Concordat was validly concluded. This is because only the failure of the Federation to comply with a valid international treaty could constitute a violation of a constitutional duty of the Land.

103

The German constitutional basis for the power to conclude the Reich Concordat was the Act to Remedy the Distress of the People and the Reich (Gesetz zur Behebung der Not von Volk und Reich) of 24 March 1933 (RGBl I p. 141), known as the Enabling Act (Ermächtigungsgesetz). Art. 4 of the Act reads as follows:

104

Treaties of the Reich with foreign states which concern matters of national legislation do not require the consent of the bodies participating in legislation. The government of the Reich is empowered to issue the necessary provisions for the implementation of these treaties.

105

According to Art. 45(1) of the Weimar Constitution (Weimarer Reichsverfassung – WRV), the Reich President represented the Reich in international law and was empowered to conclude alliances and other treaties with foreign powers in the name of the Reich. On the basis of Art. 4 of the Enabling Act, the Reich President no longer required the consent of the Reichstag provided for in Art. 45(3) of the Weimar Constitution with respect to treaties with foreign states relating to subject-matters of Reich legislation. The question whether, under the Weimar Constitution, the consent of the Reichstag was required for concordats can be left open because the Enabling Act removed this requirement in any event. If the Enabling Act applied, then objections to the validity of the conclusion of the Reich Concordat cannot be derived from the lack of consent of the Reichstag.

106

Measured against the provisions of the Weimar Constitution, the Enabling Act was invalid. However, there is no need to elaborate on this because the validity of the Enabling Act cannot be decided by reference to the provisions of the Weimar Constitution. The Enabling Act must be seen as a step in the revolutionary justification of the National Socialist dictatorship. It created a new division of powers in place of the previous one. At the time of the ratification of the Concordat (September 1933), this new division of powers had actually become established, both internally and externally. In accordance with the provisions of the Enabling Act, a number of international treaties had already been concluded by the German Reich prior to the conclusion of the Concordat, most notably the Four-Power Pact between Germany, France, Great Britain and Italy of 15 July 1933 (Politische Verträge, edited by Viktor Bruns, vol. l, Berlin 1936, p. 348). The new division of powers was thus internationally recognised. It also worked internally.

107

One cannot recognise the existence of a new division of powers brought about in a revolutionary way, while at the same time denying the validity of the acts of state and legal provisions enacted under this division of power. Rather, the recognition of the validity of a division of powers inevitably leads to the conclusion that valid law might arise under this division of powers (cf. also BVerfGE 2, 248, 253; 3, 90, 94 and Order of the Federal Constitutional Court of 19 February 1957 - 1 BvR 357/52 - ; Decisions of the Federal Court of Justice in Civil Matters, Entscheidungen des Bundesgerichtshofes in Zivilsachen – BGHZ 5, 96 ff.). However, the recognition of the new division of powers does not necessarily mean that laws and regulations enacted on its basis can be recognised as valid law. This depends on their content. They cannot be considered to be valid law if they violate the essence and possible content of the law. There are no objections against the Reich Concordat in this regard.

108

The Reich Concordat has therefore come into effect as a valid treaty that is binding on both parties. In view of the clearly expressed will of the two parties to the treaty, the motives and internal reservations of the Reich government put forward by the Länder who have joined the respondent are irrelevant.

109

2. There is no need in this legal dispute for a fundamental decision to be taken on where the limits of the possibility and necessity of the transposition of international treaties into domestic law lie, and above all on the question of whether and to what extent the rules on transposition are applicable to concordats. In any event, the school-related provisions of the Reich Concordat, which are the only ones that matter here, have become German law.

110

As was common practice in the Weimar Republic, the consent of the Reichstag according to Art. 45(3) of the Weimar Constitution had been granted by law which, according to the prevailing school of thought, meant the simultaneous transposition of treaty law into domestic law. Since the Enabling Act had eliminated the requirement of Reichstag consent for the conclusion of a treaty, the Reich government saw no reason to enact a law. Instead, it returned to the state practice of Bismarck’s Imperial Constitution (Bismarcksche Reichsverfassung), which provided that publication of the treaty in the Reich Law Gazette sufficed for the treaty provisions to enter into force domestically. The German Foreign Office and the Reich Ministries of Justice and the Interior occasionally exchanged views on the form of the domestic enactment of the Reich Concordat and correctly assessed the situation under constitutional law at the time to the effect that no law was required for transposition but that a simple announcement in the Reich Law Gazette was sufficient (cf. the note of 13 July 1933 on II Vatikan 274/275 in the files of the Foreign Office department II, Politik 2 no. 1 Vatikan vol. 9). Accordingly, at its meeting of 14 July 1933, the Reich government approved the conclusion of the Reich Concordat initialled on 8 July 1933, repeated its consent by resolution passed by circulation after the treaty had been signed, and resolved to publish the Reich Concordat in the Reich Law Gazette. In addition, an implementing law was passed authorising the Reich Minister of the Interior to issue the legal and administrative provisions necessary to implement 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) on 12 September 1933. […]

111-132

[…]

133

The Reich Concordat thus became domestically binding law in accordance with the constitutional framework in force at the time. The then applicable constitutional framework is still the decisive factor today when assessing the transposition process at that time.

134

[…]

135

3. The Reich Concordat remained in force under international and domestic law throughout the National Socialist regime.

136

a) The repeated serious violations of the Reich Concordat (e.g. of Art. 15, 17, 19, 23, 31) by National Socialist government and party authorities did not affect its legal validity, but only gave the injured party the right either to withdraw from the contract or to demand its fulfilment.

137

The Holy See, however, held on to the Reich Concordat and in numerous protests, culminating in the encyclical ‘With deep concern’ (‘Mit brennender Sorge’) of 14 March 1937, did not cease to protest against the National Socialist state’s ‘circumvention, undermining and finally more or less public violation of the treaty’. […]

138

[…]

139

b) The National Socialist state ‒ despite all its violations of the Concordat and its fight against the Church and Christianity ‒ never terminated the Concordat or declared it null and void. […]

140

[…]

141

c) Nor has the Reich Concordat become obsolete by way of repeal and replacement with customary law. There is a lack of a long period of time required for such repeal and replacement and a lack of complete disregard of the obligations arising from the treaty, as reflected in the declared or agreed will of both parties.

142

[…]

143

4. a) The Reich Concordat which according to its preamble aims to ‘permanently regulate the relationship between the Catholic Church and the state for the entire territory of the German Reich’ has not become inapplicable through the collapse of National Socialist dictatorship. The German Reich was the contracting party. Given that the parties to the treaties had intended a permanent arrangement, the argument that the Concordat only applied for the duration of the National Socialist regime is not convincing. The legal structure of the state party has, however, changed fundamentally. The dictatorship collapsed. However, according to the prevailing opinion, which is also shared by the Court, this did not change anything about the continued existence of the German Reich and therefore also about the continuation in force of the international treaties it had concluded, unless a treaty, according to its content, would not have been suitable to outlast the National Socialist dictatorship. This does not apply in the case of the Reich Concordat. […]

144

b) The occupying powers did not repeal the Reich Concordat. They could not have done so in a way that was valid under international law since the Concordat, same as the treaties with neutral states, was not subject to unilateral dispositions by the occupying powers. Dispositions by the occupying powers could, at most, have had domestic effects.

145-148

[…]

149

5. The establishment of a governmental organisation for the territory of the western occupation zones by the Basic Law for the Federal Republic of Germany did not change the validity of the Reich Concordat between the parties to the treaty. The German Reich, which had not ceased to exist after the collapse of the regime, continued to exist after 1945. Even if the organisation created by the Basic Law is provisionally limited in its validity to part of the territory of the Reich, the Federal Republic of Germany is nevertheless identical with the German Reich (BVerfGE 3, 319 f.). It follows from this that the Federal Republic of Germany is bound by the state treaties concluded by the German Reich. For the state treaties concluded by the German Reich which relate to matters for which the Land legislator is responsible under the Basic Law, Art. 123(2) of the Basic Law provides that they shall remain in force under the conditions stated therein, namely ‘until new treaties are concluded by the authorities competent under this Basic Law or until they are in some other way terminated pursuant to their provisions’.

150

None of these reasons for termination apply to the Reich Concordat. No new treaties have been concluded. The Reich Concordat was concluded for an unlimited period of time.

151

6. The argument according to which, for the school-related provisions, the Länder rather than the German Reich became parties to the Reich Concordat is wrong. Generally, only the contracting parties are entitled to rights and subject to obligations under a treaty. It is possible that, if a contracting party ceases to exist, another party takes its place as a contracting party. As has been set out above, however, the German Reich as a contracting party has not ceased to exist. The fact that, according to the Basic Law, the right to legislate in school-related matters lies with the Länder is of domestic significance only and does not mean that the Länder become contracting parties with regard to the school-related provisions of the Reich Concordat.

II.

152

It has been argued that the school-related provisions of the Reich Concordat are in conflict with the Basic Law because they violate the principle of freedom of conscience laid down in Art. 4 of the Basic Law. A denominational school as per the Reich Concordat is – in the view of the Federal Government at any rate – a school in which children of the same denomination are taught, in which teachers of the same denomination teach and in which not only the religious instruction but the entire teaching and education correspond to the spirit of that denomination. According to the Reich Concordat, schools of this kind must be established – subject to certain conditions – upon application by the legal guardians. Meeting the request of the legal guardians, which is dictated by religious conviction and religious responsibility for the child, does not contradict the fundamental right of freedom of conscience, all the less so as the education system is structured according to the principles of state monopoly on schools, compulsory education and compulsory state school attendance. Under certain circumstances, this can lead to a situation where a town only has an elementary school, while the wishes of the legal guardians differ with regard to the type of school (interdenominational school, Protestant denominational school, Catholic denominational school, school with a certain non-religious ideology). This means that in order to avoid unreasonably long travel times to school in such circumstances, the respective minorities have to forego the school type of their choice and instead have their child educated and taught in an elementary school that does not meet their wishes. However, this does not amount to a restriction of the freedom of conscience. It is not possible to provide all parents with a type of school that suits their wishes. It is inevitable that parents may be forced to send their children to a school that does not correspond to the parents’ wishes in terms of its ideology. Therefore, it cannot be said that, taking into account state-imposed compulsory school attendance and the actual limitation of the number of different ideological arrangements of schools, the school-related provisions of the Reich Concordat unlawfully interfere with the freedom of conscience.

E.

153

The continuation in force of the Reich Concordat under international law means that the mutual obligations arising from it must be fulfilled by the parties to the treaty. Within the scope of application of the Basic Law, the Federal Republic of Germany – which under constitutional law means the Federation and the Länder as a whole – must be considered to be the contracting party of the Reich Concordat. However, according to the constitutional law of the Federal Republic of Germany, the obligations arising from the school-related provisions of this Concordat can only be fulfilled by the Länder because the Federation lacks the authority to legislate in the field of school law. The decision of the legal dispute at hand depends on the question of whether the Federation can demand that the Länder comply with these provisions. This is the case if it emerges that the Länder are constitutionally obliged vis-à-vis the Federation to comply with these provisions when implementing school law.

I.

154

In a first step it must be examined whether the Basic Law contains an explicit provision in this regard. Art. 123(2) of the Basic Law is the only provision of the Basic Law that explicitly mentions treaties concluded by the German Reich:

‘...

155

(2) Subject to all rights and objections of interested parties, treaties concluded by the German Reich concerning matters within the legislative power of the Länder under this Basic Law shall remain in force, provided they are and continue to be valid under general principles of law, until new treaties are concluded by the authorities competent under this Basic Law or until they are in some other way terminated pursuant to their provisions.’

156

The conditions for the application of this provision have been met here. When this provision refers to ‘treaties’, these mean the international treaties concluded by the German Reich, without regard to 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 history of the origin of Art. 123(2) of the Basic Law ([...]). The Länder are now responsible for legislating on school-related matters of the Reich Concordat (Art. 70 ff. of the Basic Law).

157

However, a constitutional duty of the Länder vis-à-vis the Federation to observe the school-related provisions of the Reich Concordat cannot be derived from Art. 123(2) of the Basic Law.

158

This provision does not determine whether the treaties mentioned therein remain in force. Such determination would be outside the scope of the Basic Law as a state constitution. Rather, Art. 123(2) can only deal with the continued application of the treaty content that has been transposed into domestic law. It therefore amounts to a provision on the applicability of law, i.e. a provision determining which law shall apply.

159

Such provisions on the continuation in force of old law can be found in every constitution and logically belong with the final and transitional provisions. [...] The stipulation in the transitional provisions of a new constitution that old law, which was enacted under the rule of a different constitutional order, continues to apply or remains in force can only have the purpose of excluding doubts as to whether old law should no longer apply because it was created under a different constitutional order that no longer applies; such doubts were particularly pressing after 1945. Beyond that, the provisions in Art. 123(1) and (2) have no legal significance.

160

According to its wording and semantic content, Art. 123(2) of the Basic Law does not mean that the legislator of the Land is constitutionally bound to the school-related provisions of the Reich Concordat, i.e. that the legislator may not enact any conflicting law. Rather, the only effect of Art. 123(2) on the school-related provisions of the Reich Concordat is that, insofar as they were still in force when the Basic Law came into force, they remain in force even if school-related matters are now within the exclusive legislative power of the Länder and the school-related provisions of the Reich Concordat originate from a treaty that was not concluded by the Länder.

161

This conclusion is justified by the following considerations:

162

1. Art. 123(2) of the Basic Law only provides that the provisions shall remain in force per se, and not that they shall remain in force as federal law. This is already evident from the wording of the provision, which makes express reference to the legislative power of the Länder. In addition, it is evident from the systematic connection of Art. 123(2) with Art. 123(1) of the Basic Law and the relationship between the whole of Art. 123 of the Basic Law with Art. 124 and 125 of the Basic Law. While both paragraphs of Art. 123 are limited to stipulating that laws shall remain in force, the two following articles divide the laws that remain in force into federal and Land law. Finally, the negotiations of the Parliamentary Council contain no indication that the introduction of Art. 123(2) of the Basic Law was intended as a special provision in relation to Art. 124 and 125 of the Basic Law.

163

Those parts of German law that correspond to the school-related provisions of the Reich Concordat cannot but have become Land law according to Art. 70 ff. and Art. 124 f. of the Basic Law, given that the subject-matter of the Reich Concordat falls within the scope of the exclusive legislative power of the Länder.

164

However, with reference to the provisions of Art. 140 of the Basic Law in conjunction with Art. 136 ff. of the Weimar Constitution, some take the view that, under the Weimar Constitution, the Reich Concordat was a constitutionally permissible and suitable means of supplementing Art. 136 ff. of the Weimar Constitution, which concerned state-church relations. According to such view, the whole of the Reich Concordat’s content became Reich law upon transposition into domestic German law. On the premise that, according to Art. 140 of the Basic Law, the provisions of the Weimar Constitution on state-church are part of the Basic Law, the argument is then made that the Reich Concordat still fulfils the same function today as it did in the German Reich. Proponents of such view further argue that the Reich Concordat’s provisions are a unified whole, which might be broken down into its individual components systematically, but not constitutionally, and therefore the Reich Concordat cannot continue in force today partly as federal law and partly as Land law. Rather, the argument concludes, the Reich Concordat has become federal law in its entirety.

165

The Court does not accept this argument. It need not be discussed whether the relationship between church and state in the Weimar Republic was taken over in its entirety by Art. 140 of the Basic Law, or whether, despite the adoption of the provisions of Art. 136 to 139 and 141 of the Weimar Constitution as part of the Basic Law, a completely different situation applies today in terms of state-church relations as a result of the reorganisation of that relationship. A considerable constitutional difference compared to the former constitutional law of the German Reich is that the Reich, according to Art. 10 no. 1 of the Weimar Constitution, had the power to establish principles for the rights and duties of religious communities by way of legislation and even regulate everything under the system of powers of the unitary state, whereas the Basic Law denies the Federation the power to legislate in this field. The function of the Reich Concordat can therefore no longer be the same today as it was at the time it came into being.

166

The question of the legal fate of the transposed content of the Concordat as a result of the entry into force of the Basic Law must only be answered here with regard to the school-related provisions. These provisions form a closed and coherent subject area which, according to the constitutional order created by the Basic Law, relates exclusively to the Länder. They can therefore be very clearly separated from the other provisions of this Concordat, not only systematically but also constitutionally, without any concern of any confusion arising from such separation.

167

2. It follows from the systematic position of the provision of Art. 123(2) of the Basic Law, from the need to bring it into line with other constitutional provisions and from its legislative history that it only stipulates that laws which correspond to an international treaty remain in force, without preventing the competent legislator from amending this law.

168

a) The position of Art. 123(2) of the Basic Law in the vicinity of Art. 123(1), 124 and 125 of the Basic Law is significant. These provisions, in addition to Art. 126 of the Basic Law as a procedural provision, stipulate nothing other than that the body of law encountered by the Basic Law remains in force, without attributing to the law affected by the stipulation of continued validity a different level of binding force than that attributed to federal and Land law, respectively. The fact that Art. 123(2) of the Basic Law is placed in close proximity to these provisions and is not separated from them must mean that it, too, only stipulates that the law corresponding to the treaties remain in force and does not, in addition, prohibit or restrict the amendment of the treaty law.

169

This is made even clearer by the special relationship between the second paragraph of Art. 123 of the Basic Law and the first paragraph, which stipulates that old law shall remain in force insofar as it does not conflict with the Basic Law. The relationship is already very close in terms of actual proximity. The same can be said about the relationship between the two paragraphs in terms of content in that the second paragraph appears to be a special case of application of the general rule expressed in the first paragraph. Art. 123(2) of the Basic Law only highlights, by way of clarification, a case which in itself is already governed by the provision in Art. 123(1) of the Basic Law in terms of facts and legal consequences. The provision removes any doubt that could have arisen if the Basic Law had contented itself with the provision of Art. 123(1) of the Basic Law. The continued validity of the treaty law transposed into domestic law might then have been called into question on the grounds that the treaty content relates to a matter that today belongs to the exclusive legislative power of the Länder. The possible uncertainty as a result of the parties to the treaty ceasing to have legislative sovereignty is eliminated by the provision of Art. 123(2) of the Basic Law. This rule was necessary because its content is by no means self-evident after the collapse of the unitary state and the subsequent reorganisation of the Constitution. Such clarification was not necessary for Reich treaties that refer to matters that are subject to federal legislation as they are undoubtedly governed by the general rule of Art. 123(1) of the Basic Law.

170

When Art. 123(2) stipulates that the treaties in question, ‘provided they are and continue to be valid under general principles of law’, remain in force ‘until new treaties are concluded by the authorities competent under this Basic Law or until they are in some other way terminated pursuant to their provisions’, this can only be understood to mean that the legal validity of the treaties under international law is thus made a prerequisite for the continued domestic application of the treaty law. The continuation in force of the transposed treaty law is first subject to the condition that the treaties were still valid under international law when the Basic Law came into force. However, the provision also states that this law shall not remain in force when the treaties are no longer valid under international law. This clearly expresses that domestic law corresponding to the treaties depends on the continuation in force of the treaties under international law.

171

b) The assumption that Art 123(2) of the Basic Law intended to bind the Land legislator to treaty law by virtue of constitutional law, and to thus go beyond stipulating the continued validity of the law, would be in contradiction to the way the relationship between the Federation and the Länder is structured under the Basic Law in other respects.

172

The freedom of the Länder guaranteed by the Basic Law on matters in which they have exclusive legislative power would, according to this assumption, be considerably restricted for all those subject-matters for which treaty regulations exist. The Federation would largely be left to decide whether the contractual obligation and thus the restriction imposed on the Land legislator should remain in place or be removed. Insofar as the obligation under international law can only be eliminated if the contracting party issues a declaration that changes the law (e.g. a termination), only the Federation, in its capacity as a contracting party, would be able to eliminate the obligation under international law.

173

This concern is reinforced especially in terms of the school-related provisions of the Reich Concordat, because if the Länder were tied to the Federation in this field, this would result in a considerable encroachment on their cultural sovereignty. This would be in contradiction to the federalist structure of the Federal Republic of Germany, in which cultural sovereignty, and especially sovereignty in the field of education, is at the core of the sovereignty of the Länder.

174

These aspects are of particular significance because Art. 123 itself does not provide for the continued application of the transposed treaty law without regard to the new legal regime under the Basic Law, but only insofar as the previous treaty law does not contradict the Basic Law. Pursuant to Art. 123(2) in conjunction with Art. 123(1) of the Basic Law, treaty law is also governed by the Basic Law. It can be deduced from this general principle that the provisions of the Basic Law on the distribution of powers between the Federation and the Länder must also be taken into account when examining the question of whether the Länder are obliged vis-à-vis the Federation to comply with the content of the treaties. Therefore, it cannot be assumed that the provision, beyond stipulating the continuation of existing law, contains a rule addressed to the Länder, stipulating that ‒ contrary to basic decisions of the Basic Law on the sovereignty of the Länder ‒ treaty law may not be amended even if the treaty relates to a field in which the Länder have the exclusive power to legislate.

175

c) The legislative history of Art. 123(2) of the Basic Law confirms that this interpretation is correct.

176

The issue of the legal fate of the treaties concluded by the German Reich had been discussed in the Parliamentary Council when examining the question of whether the Reich Concordat concluded under National Socialist rule still continued to bind the state that was to be newly constituted ([...]). Some of the political forces involved in the deliberations of the Parliamentary Council demanded the inclusion of a provision in the Basic Law stipulating that the treaties concluded with the churches and in force on 8 May 1945 remain in force until the conclusion of new treaties to that effect by the Länder.

177-187

[…]

188

If the provision of Art. 123(2) of the Basic Law were to be understood as stipulating that the Land legislator be bound by treaty law as domestic law, there would be an irresolvable contradiction between the content of Art. 123(2) of the Basic Law and the prevailing view in the Parliamentary Council ‒ the body that was key in shaping the Basic Law ‒ according to which the Basic Law could not comment on the continued validity of treaty law under international law or under domestic law. This contradiction would also prevail if Art. 123(2) of the Basic Law were not interpreted as an unconditional stipulation for the Land to be bound by treaty law, but as a stipulation that treaty law be binding domestically in the event of the treaty’s validity under international law. By contrast, the view prevailing in the Parliamentary Council can be reconciled without contradicting the interpretation of Art. 123(2) of the Basic Law, according to which the provision has no effect other than establishing that the domestic law in accordance with the treaty does not cease to have effect merely by the entry into force of the new constitutional order, in particular its division of competences.

189

3. The opposing view, according to which Art. 123(2) of the Basic Law does not merely stipulate the continued application of domestic law which corresponds to international treaties, but seeks to ensure the implementation of existing obligations of the Federal Republic of Germany under international law by the Länder, is not convincing. According to this view, Art. 123(2) of the Basic Law, in terms of its spirit and purpose and unlike the first paragraph of the same Article, only affects the relationship between the Federation and the Länder and stipulates that treaty law concluded by the Reich on subject-matters where the Land has the exclusive legislative power is not subject to the free power of disposal of the Land legislator until the treaties binding the Federation have been amended or repealed in a manner that complies with international law. On that basis, the argument is made that while the Länder can legislate in a manner that is valid domestically, they are not permitted to do so as this would violate a constitutional obligation towards the Federation. Such interpretation concludes that the Länder are obliged vis-à-vis the Federation to repeal any laws that are in breach of the treaty.

190

a) The very wording of Art. 123(2) of the Basic Law is an argument against such an interpretation. Where this provision states that the treaties ‘remain in force’, this can only mean the continued application of domestic law because the Basic Law cannot and does not want to lay down any rules on whether treaties remain in force under international law. However, the fact that the Basic Law stipulates that treaties shall remain in force does not mean that the Land legislator is constitutionally bound by this. The Basic Law could have stipulated such binding effect but it only stipulated that the treaties shall remain in force and did not make any further provisions in that regard.

191

b) According to Art. 123(2) of the Basic Law, treaties of the German Reich remain in force ‘provided they are and continue to be valid under general principles of law’. In order to establish that the only treaties remaining in force are those that were validly concluded and continue to exist pursuant to international law, no legal provision was needed since treaties that do not fulfil these requirements cannot be valid and, consequently, cannot remain in force. In truth, the wording of Art. 123(2) reflects the unresolved remaining doubt of the constitutional legislator as to whether the Reich treaties (and in particular the Reich Concordat) were concluded in a legally valid manner and whether they were still considered valid when the Basic Law entered into force. As is clear from its legislative history, Art. 123(2) of the Basic Law was created precisely with the Reich Concordat in mind. The constitutional legislator has not acknowledged its binding nature; however, it has not rejected it either. Rather, the question whether the Reich Concordat continued in force was left open because there had been doubts as to its validity and binding nature and because it was to be left to the parties involved to assert any rights and objections against the treaty content. It cannot be insinuated that the constitutional legislator wanted to bind the Land legislator to a treaty about whose validity the constitutional legislator itself had doubts.

192

By contrast, the Court is not convinced of the objection that Art. 123(2) leaves the decision on the continued validity of the Reich Concordat open in the sense that it establishes criteria according to which it should be decided at a later date, i.e. primarily by the Federal Constitutional Court, whether the Reich Concordat is still in force. In assessing this provision, due regard must be had to the duty of the legislator in terms of its responsibility for the continued existence of law. A constitution may very well leave open the question of the continued validity of law from an earlier constitutional order in the sense that, in cases of doubt, the courts shall decide according to certain criteria. Should there be any legal uncertainty that has a disruptive effect on the common good, it will always be the task of the legislator to clarify and safeguard the body of law by way of legislation. A constitutional obligation on the Land legislator – which has exclusive legislative competence in the matter at hand – to comply with a law about whose validity the constitutional legislator itself had doubts, can put the Land under pressure to legislate. This situation may persist for an indefinite time even if the matter falls within the jurisdiction of the Constitutional Court, given that it is completely uncertain whether and when the Constitutional Court will be called upon, and considering that the latter is only called upon to adjudicate in very specific types of proceedings and only under certain procedural conditions. It would therefore be impossible to foresee when and under what circumstances a court decision could clarify whether and to what extent the legislator is bound by the law in question. The existence of an indefinite period of uncertainty and lack of clarity about the limits of the legislator's lawmaking powers would be difficult to reconcile with the principles of the rule of law.

193

[…]

194

c) The conclusion that the objective is for the Land legislator to be bound can also not be inferred from the provision of Art. 123(2) stipulating that treaties remain in force ‘until new treaties are concluded by the authorities competent under this Basic Law or until they are in some other way terminated pursuant to their provisions’. If this interpretation were correct, the Länder would not be able to enact domestic law that contradicts such treaties without violating the existing right of the Federation vis-à-vis the Länder under Art. 123(2) of the Basic Law. The federal legislator could not make law in this field either, as it does not have the legislative power to do so. According to this view, the power of disposition over this body of law would formally belong to the Federation because, in principle, only the Federation would be able to determine, by way of binding declarations made on behalf of the Federal Republic of Germany in international legal relations, whether or not the treaty should remain in place or not. This result is untenable. It would lead to a situation where the Federal Government was able to determine Land law on its own. Not only would this violate the distribution of competences between the Federation and the Länder, it would also curtail the legislative power of a legislative body of a Land in favour of the Federal Government.

195

d) The assumption that Art. 123(2) constitutionally binds the Land legislator to the school-related provisions of the Reich Concordat until a new concordat is concluded between the Land and the Holy See would render a fundamental decision of the Basic Law, namely the guarantee of exclusive power of the Länder in the field of education, irrelevant for an indefinite period. […]

II.

196

The general extent of the obligation of the Länder towards the Federation to observe the treaties binding on the Federal Republic of Germany under international law does not need to be examined here. This is because, either way, a duty of the Länder towards the Federation to comply with the school-related provisions of the Reich Concordat in their legislation cannot be derived from the constitutional order created by the Basic Law. The assumption that such an obligation exists is countered by fundamental decisions of the Basic Law, which shape the relationship between the Federation and the Länder in the present context. These fundamental decisions are expressed in Art. 7, 30 and 70 ff. of the Basic Law. In contrast to the Weimar Constitution, they designate the Länder as the exclusive bearers of cultural sovereignty which, on the question of how the school system is structured in terms of religious faith, is limited only by the provisions of Arts. 7 and 141 of the Basic Law. This is an essential element of the federal structure of the Federal Republic of Germany.

197

1. It must be assumed that in areas where the Länder have exclusive legislative power, they alone are authorised to shape the law. This principle is expressed with great clarity in Art. 30, 70 ff. of the Basic Law. The legislative freedom of the Länder in this field is only limited by the obligations arising from federal constitutional law since other federal law cannot be enacted in the field of the exclusive legislative power of the Länder.

198

It must therefore be regarded as an essential principle of federal constitutional law that the Länder are not subject to any binding obligations in their legislative field other than the obligation to comply with the Basic Law. This principle also applies to the legislation of the Länder with regard to the law that continues to apply under Art. 123(1) and (2) of the Basic Law.

199

The Basic Law places school law exclusively within the sovereign power of the Länder. School law is not listed in the catalogue of competences in Art. 71 ff. of the Basic Law. In contrast to the constitutional order of the Weimar Republic, which granted the Reich the right to legislate in principle in the field of education pursuant to Art. 10 no. 2 of the Weimar Constitution, the Federation has no legislative power (Art. 70 ff. of the Basic Law) and no administrative sovereignty (Art. 30 of the Basic Law) with regard to this subject.

200

If the Länder were obliged to comply with the school-related provisions of the Reich Concordat, this would therefore be in obvious contradiction to the power of the Länder to freely structure school law within the factual limitations of the Basic Law.

201

2. The Basic Law contains a specific factual decision concerning the denominational organisation of the school system, which conflicts with the Länder being constitutionally bound to the school-related provisions of the Reich Concordat. Based on the freedom of the Länder to shape their own legislation, Art. 7, 141 of the Basic Law set out the limitations that are binding on the Land legislator in this field in particular. These provisions deviate significantly from the ‘school compromise’ in Art. 146 of the Weimar Constitution. They do not reflect the school-related provisions of the Reich Concordat. On the contrary, it does not contain any guarantee of state denominational schools, and only a limited guarantee – limited in terms of content and territory – of religious education as a regular school subject (Art. 7(3) first sentence and Art. 141 of the Basic Law).

202

Art. 7 of the Basic Law contains provisions on state supervision of schools, on religious education, which is a regular subject at state schools (with the exception of non-denominational schools), and on the right of parents to decide on their children’s participation in religious education. The provision also governs the right to establish private schools and the conditions for their approval.

203

Art. 7 of the Basic Law contains establishment guarantees, provisions containing fundamental rights and rules of interpretation on matters of school law. Its significance therefore goes beyond that of a fundamental right. It establishes principles for the denominational organisation of the school system. This provision does not guarantee that the will of the legal guardians is considered in the religious and ideological organisation of state schools. According to Art. 7(4) and (5), the will of the legal guardians is only to be taken into account in the approval of private denominational schools (including elementary schools). The provisions on private schools therefore do not restore the legal situation of the Weimar period. They go beyond this by explicitly guaranteeing the institution of the private school. The school-related provisions of the Reich Concordat are thus not taken into account in the structuring of state schools, but only in the establishment of private schools.

204

As the background materials to the Basic Law illustrate, the Basic Law is limited to the provision of Art. 7 because the political forces shaping the Basic Law predominantly rejected placing the Land legislator under a more extensive obligation for the denominational organisation of the school system. In the preliminary debates on Art. 7 of the Basic Law, motions were repeatedly put forward which sought to protect denominational schools and religious education in accordance with Art. 21 and 23 of the Reich Concordat ([...]). They did not succeed with regard to state denominational schools, nor with regard to religious education for the ‘non-denominational schools’ (Art. 7(3) first sentence of the Basic Law). Finally, with regard to religious education, an exception was granted under Art. 141 of the Basic Law in favour of those Länder in which, on 1 January 1949, there was a provision in place that deviated from Art. 7(3) first sentence of the Basic Law and, consequently, from Art. 21 of the Reich Concordat. In this context, it was repeatedly pointed out, both with regard to Art. 7 and Art. 141 of the Basic Law, that the power of the Länder to legislate on matters of school policy should not be diminished ([...]).

205

Seen in this light, Art. 7 must indeed be interpreted as covering the constitutional restrictions of the Land legislator in full, at least with regard to the denominational organisation of the school system. Art. 7 sets the maximum limitations that the Länder could be politically and legally expected to accept taking into account the unique specific situation at the time of the drafting of the Basic Law and the strengthening of the federalist principle expressed in it.

206

[…]

207

3. The meaning of Art. 7 of the Basic Law in the context to be discussed here can only be properly understood against the background of the overall situation encountered by the Basic Law in the field of school law.

208

From 1933 to 1945, the school-related provisions of the Reich Concordat had not been enforced and had been breached many times.

209

After the collapse of the German Reich in 1945, Germany’s new state was built with the help of the Länder. It was within the Länder that state life was newly constituted, at a time when the German state as a whole had not yet regained the power to act. It was in keeping with this situation that the Länder were able to amend earlier Reich law during this period. For this reason, the Basic Law also expressly recognised amendments to earlier Reich law by the Länder during this period (Art. 125 no. 2 of the Basic Law).

210

In many cases, the Länder, in whose state structure school-related matters were of particular importance and the subject of lively disputes, deviated from the school-related provisions of the Reich Concordat. For example, the constitutions of several Länder provided for Christian community schools as the only type of school (Art. 28(1) of the Constitution of the Land of Baden of 22 May 1947, Art. 32(1) of the Constitution of the Free Hanseatic City of Bremen of 21 October 1947, Art. 37(3) of the Constitution for Württemberg-Baden of 28 November 1946). The Land of Bremen even excluded religious education as a regular subject, contrary to Art. 21 of the Reich Concordat (Art. 32 of the Land constitution, etc.). Hamburg ran its schools exclusively in the form of interdenominational schools on the basis of § 35 of the Law Concerning Education (Gesetz betreffend das Unterrichtswesen) of 11 November 1870 ([...]). […]

211-212

[…]

213

According to the overall situation in terms of school law, the constitutional legislator therefore had to assume that the newly created school law of a considerable part of the scope of application of the Basic Law contradicted the school-related provisions of the Reich Concordat. The question of how these processes must be assessed from the viewpoint of international law cannot be at issue here. The Parliamentary Council was faced with this de facto situation, created by the dynamics of the circumstances, which also have legal relevance.

214

This legal situation and, factually related to it, the circumstance that the new constitutional order leaves school law to the exclusive legislative power of the Länder, would have made it necessary for the Basic Law to expressly stipulate it if the Länder were to be required to comply with the school-related provisions of the Reich Concordat. Given the inconsistent legal situation regarding matters relating to the school system in the Länder and the Basic Law’s own choices on this subject-matter (Art. 7 and 141), the Basic Law ‒ if its intention had been to oblige the Länder to comply with the school-related provisions of the Reich Concordat ‒ could not have afforded to remain silent about this. The Basic Law could also not have afforded to merely stipulate that, generally, domestic law corresponding to the state treaties of the German Reich shall continue in force. As explained above, such stipulation neither eliminated the conflicting Land law nor was the Land legislator bound by the continuing law.

215

4. The conclusion reached is made particularly clear by Art. 141 of the Basic Law. In contradiction to the provision of Art. 21 of the Reich Concordat, Art. 141 of the Basic Law exempts the Länder, in which religious education was not a regular subject on 1 January 1949, from the obligation to maintain religious instruction as part of the regular curriculum in all state schools with the exception of non-denominational schools, which is also stipulated in Art. 7 of the Basic Law. It cannot be assumed that the Basic Law, if it had wanted to make it obligatory for the Länder to comply with the school-related provisions of the Reich Concordat, would have granted an exception to this. Moreover, an exemption from a constitutional obligation, which partially coincides in content with an obligation under the Concordat, is made by way of a positive provision of the Basic Law, whereas an obligation to observe the school-related provisions of the Reich Concordat is at least not to be found in the written constitution. It is therefore impermissible to assume that the Basic Law, in contrast to its own positive provisions, has imposed such a duty on the Länder, not explicitly but implicitly.

216

5. In order to correctly understand the constitutional order of the Federal Republic of Germany, one must realise that the division of competences between the Federation and the Länder as provided for by the Basic Law was not the division of a unitary state authority that had been exercised without restriction until the federalist state was created. The events of 1945 to 1949 did not only entail a change in the form of state. They cannot be compared to the transformation of an uncontested unitary state into a federalist state. Instead, the German state authority within the Federation and the Länder was given a new order and form as part of a fundamental reconstruction to replace the governmental organisation that had completely collapsed and been completely eliminated in 1945 (cf. BVerfGE 3, 58 [85 ff., 115 f.]). The fact that this reconstruction gave priority in terms of timing on the development of the statehood of the Länder before establishing the overall German state presented the constitutional legislator with a fait accompli in two respects. On the one hand, the law in the Länder had largely developed independently, and – as the present case also shows – to such an extent that this particular legal development could not be ignored by the Basic Law. This is particularly expressed in Art. 125 no. 2 of the Basic Law. On the other hand, the powers of the Länder could not be arbitrarily curtailed given their inherent political weight at the time. The Basic Law also required ratification by the parliaments of two-thirds of the German Länder (Art. 144(1) of the Basic Law). Given these constitutional and political circumstances, the Federal Constitution could not guarantee the observance by the Länder of the obligations entered into by the Reich as comprehensively as it could have done ‒ considering the Federal Republic’s international commitments ‒ if the task incumbent on the Basic Law had been to divide the powers exercised by an uncontested unitary state between the Federation and the Länder.

217

The interpretation of the Basic Law must be based on the inner harmony of the Constitution, which gave the German state a new federalist and democratic order in place of a dictatorship in a unitary state. Any assumption that the Länder have an obligation towards the Federation to comply with the school-related provisions of the Reich Concordat would be incompatible with the basic decisions of this Constitution, which also include the allocation of sovereignty in school matters to the Länder.

III.

218

One of the constitutional provisions that are inherent to the Basic Law and regulate the relationship between the Federation and the Länder is the constitutional principle of loyalty to the Federation. This principle can only be properly understood in context with all the other constitutional provisions that govern this relationship.

219

The Länder, like the Federation, have the constitutional obligation to cooperate in accordance with the nature of the constitutional ‘alliance’ that connects them and to contribute to its consolidation and to the protection of the well-understood interests of the Federation and its members (BVerfGE 1, 299 [315]; see also BVerfGE 1, 117 [131]; 3, 52 [57]). This also involves a restriction of the powers of the Land legislator. If the effects of a legal provision are not limited to the territory of the Land, the Land legislator must take into account the interests of the Federation and the other Länder. If a Land legislator has obviously abused its freedom in violation of this duty of consideration, its conduct is unconstitutional (BVerfGE 4, 115 [140]).

220

It can be deduced from this that nothing may be done in the federalist state that harms the whole or one of its parts. Loyalty to the Federation therefore requires that each member consider the interests of and any tensions that arise in the Federation especially with regard to the Federation’s foreign policy interests. This warrants the conclusion that especially in foreign policy matters ‒ an area for which there is a presumption that the Federation is competent to act ‒ the duty of loyalty of the Länder towards the Federation must be taken particularly seriously.

221

However, the principle of loyalty to the Federation does not result in an obligation of the Länder towards the Federation to observe the school-related provisions of the Reich Concordat.

222

1. The decision of the Basic Law, according to which the Länder are constitutionally limited with respect to the denominational organisation of the school system only by Art. 7 of the Basic Law, excludes any further obligation of the Länder towards the Federation in this area.

223

2. Concordats do not fall under the provision of Art. 32 and 59 of the Basic Law. It follows that the power to conclude concordats is based on domestic legislative powers. The Länder can thus shape their contractual relations under concordats regarding matters for which they have exclusive power to legislate without the interference of the Federation. It follows from this legal situation that even in the case of obligations arising from the Reich Concordat in matters which, in domestic terms, fall within the exclusive legislative power of the Länder, the Federation has no constitutional option of enforcing its interests against the Länder. It must be left to the agreement of the Federation and the Länder, on an equal basis, to create a workable balance in the event of tension between interests of the Federation and those of the Länder.

IV.

224

1. It cannot be argued against the conclusion arrived at that it is incompatible with the Basic Law’s openness to international law expressed in Art. 25 of the Basic Law. Such a view would fail to recognise that the Basic Law, in its openness towards international law, does not go so far as to ensure compliance with existing international treaties by dictating that the legislator be bound to the law corresponding to them. The Basic Law does not deem it necessary for legislators to be constitutionally bound to treaty law ‒ neither to treaties whose subject-matter is governed by federal legislation, nor to Land treaties whose subject-matter is governed by Land legislation according to the Basic Law. The Basic Law leaves the fulfilment of existing treaty obligations under international law to the responsibility of the competent legislator. Art. 25 of the Basic Law only grants the ‘general rules of international law’ the character of domestic law and priority over the laws. This provision has the effect that these rules enter the German legal order directly, i.e. without requiring a law transposing them, and take precedence over German ordinary domestic law – but not over constitutional law. In this respect, these legal principles take precedence over any provision from a German legal source that falls short of them or contradicts them. Special treaty agreements, even if they set objective law, do not enjoy this prerogative. The legislator therefore has the power to dispose of the body of law even where there is a treaty obligation, provided that the latter does not concern general principles of international law.

225

2. It has been argued that the constitutional obligation of the Länder to comply with the school-related provisions of the Reich Concordat derives from the fact that they are parts of the treaty-bound German Reich, with which the Federal Republic of Germany is identical. However, this argument cannot justify such a federal obligation on the part of the Länder.

226

However, the legal assessment of the questions connected with the implementation of the Reich Concordat must proceed from the assumption that the legally validly concluded Reich Concordat obliges the German Reich as a state unity. The German Reich did not cease to exist as a subject of international law. However, it lost its governmental organisation after 8 May 1945. In the scope of application of the Basic Law, the state unity is embodied by the Federal Republic of Germany as a federalist state whose members are the Federation and the Länder. Today, the rights and obligations arising from the Reich Concordat are still related to this state unity.

227

The present proceedings do not, however, concern the question of whether and to what extent the fulfilment of the obligations of the Federal Republic of Germany towards the Holy See under international law is incumbent on the Länder as constituent members of the federalist state. The applicant asserts a violation of its constitutional rights by the Land of Lower Saxony because in the applicant’s view the Act on the State School System in Lower Saxony does not respect the school-related provisions of the Reich Concordat. It is only by making this assertion that the applicant can bring its case before the Court, given that the assertion of a violation of federal rights is the condition for the admissibility of the proceedings (§§ 64(1) and 69 of the Federal Constitutional Court Act). Therefore, in this context, the only matter at issue is whether the Länder have such an obligation towards the Federation, i.e. whether it is a constitutional obligation on whose fulfilment the Federation can insist.

228

The question raised can only be answered with reference to the overall content of the constitutional order of the Federal Republic of Germany. The answer to the question raised does not result from the notion that, with the enactment of the Basic Law, the Federal Republic of Germany, which is identical with the German Reich, becomes a contracting party to the Reich Concordat and, on this basis alone, is bound by international law. For it does not necessarily follow that the Länder, as members of the whole, are now obliged under constitutional law to comply with the school-related provisions of this Concordat. Such a view draws inadmissible constitutional consequences from the fact that the Federal Republic of Germany is identical with the German Reich. As far as treaty obligations under international law are concerned, a state transformed from a unitary state into a federalist state can bind its members to its own obligations or grant them the appropriate powers for the fulfilment of these obligations and grant them the same freedom that it also enjoys under constitutional law. There can be no doubt that both solutions are permissible under constitutional law since the constitutional legislator is free in this respect. If one wanted to cast doubt on this, one would have to prove the existence of a legal principle binding the constitutional legislator to the effect that, if it creates a new constitution after a collapse of the political system, it would have to ensure that obligations under international law that the unitary state had assumed could now be fulfilled by the newly constituted federalist state. Whether the constitutional legislator violates or endangers existing contractual obligations by choosing one or the other solution is a different question, but one that does not affect the validity of the constitution.

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As has already been explained, the Basic Law decided to deny the Federation legislative and administrative power in matters of school law and to assign this subject area to the Länder under their exclusive responsibility. In doing so, the Basic Law did not renounce the school-related provisions of the Reich Concordat, but left it up to the Länder to be solely responsible for and freely decide on how they wanted to structure their school law in view of the commitment of the Federal Republic of Germany to the Reich Concordat under international law. The Basic Law also refrained from granting the Federal Government the power to intervene, by virtue of constitutional law, in the formation of the will of the Länder when meeting this responsibility.

230

3. Some voices in international law doctrine argue that a federalist state cannot rely on the argument vis-à-vis its contracting party under international law that its constitution does not give it any means to take action against its constituent states who make it impossible for the federalist state to fulfil its obligations under international law. According to the prevailing school of thought, in such a case a federalist state is obliged under international law to obtain the appropriate constitutional means to be able to fulfil all the obligations it has assumed.

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This school of thought within international legal scholarship cannot be directly applied to the present case. It primarily concerns the case where a federalist state has assumed obligations under international law by concluding a treaty in line with its powers, but which it cannot fulfil according to its domestic law. However, this is not the case with the Reich Concordat. While this international treaty was concluded by the German Reich in line with its powers, the obligations arising from the Reich Concordat are not assumed by the Federal Republic of Germany but are inherited by it given that, under international law, ‒ because the Federal Republic of Germany is identical with the German Reich ‒ the former must take responsibility for the obligations under state treaties concluded by the latter. The Basic Law did not provide the Federation with the means to either fulfil the school-related provisions of the Reich Concordat itself or to ensure their fulfilment.

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However, if the aforementioned finding under international law could be applied to the obligations of the Federal Republic of Germany with regard to the Reich Concordat, then this would only result in a presumption that the Basic Law wanted to ensure the fulfilment of the treaty to the greatest possible degree. However, this presumption cannot apply where – as is the case here – it is clear that the constitutional legislator was not prepared to provide the Federation with the appropriate means of power to ensure compliance with the school-related provisions of the Reich Concordat. An international treaty that is binding on the federalist state only gives rise to legal consequences for the constituent states if constitutional law so requires. This domestic relationship cannot be judged under international law but is governed exclusively by the federal legal system.

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It is not necessary to examine whether the Federal Republic of Germany is liable to the Holy See for the conduct of a Land contrary to the Concordat. Even if the Federal Government were liable under international law, this could not change the constitutional situation vis-à-vis the Land.

F.

234

The application of the Federal Government is unfounded. Should the Act on the State School System in Lower Saxony violate the school-related provisions of the Reich Concordat, this would not violate the Federal Government’s rights vis-à-vis the Land. This means that it is not necessary to review the factual compatibility of the Act on the State School System in Lower Saxony with the provisions of the Reich Concordat. The Federal Government’s application therefore had to be rejected.