German Unification and the European Community

Jean-Paul Jacqué ¹

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The rapid evolution of relationships between the two Germanies, marked particularly by the State Treaties of 14 June 1990 on economic, monetary and social union and of 31 August 1990 on political union, led naturally to the questioning of the position of the former German Democratic Republic, and of unified Germany, vis-à-vis the European Community.

Given that both the FRG and GDR felt that unification should be achieved within the framework of the Community, the essential question related to the method to be followed to extend the Community treaties to the territory of the ex-GDR. Could the theory of the geographical extension of the area of territorial application of the treaties find a place here, thus resulting in automatic application of Community law to the whole of the territory of the two Germanies immediately after unification? The answer depended partly on the way unification came about, but more particularly on Community law itself and on international law. Were we going to see an integration of the GDR into the FRG, or the creation of a new State resulting from the merger, or indeed the reappearance of Germany?

In internal respects, the line taken was to employ Article 23 of the Basic Law of the FRG, which is as follows:

For the time being, this Basic Law shall apply in the territory of the Länder of Baden, Bavaria, Bremen, Greater Berlin, Hamburg, Hesse, Lower Saxony, North Rhine Westphalia, the Rhineland Palatinate, Schleswig-Holstein, Württemberg-Baden, and Württemberg-Hohenzollern. In other parts of Germany it shall be put into force on their accession.

This was the procedure followed in 1956 for accession of the Saar. Its use has, in the present case, been preceded by negotiations leading up to a State treaty between the two Germanies that specified the details of accession, particularly the application of FRG legislation (including those provisions implementing Community law) on the territory of the ex-GDR. In this case, the Federal Republic of Germany has persisted, and united Germany does not constitute a new legal subject. The problem of the FRG's succession to the GDR's obligations does not even arise.

The other possibility would have been to apply Article 146 of the Basic Law, which provides for entry into force of a new constitution adopted by the free decision of the German people. Article 146 could have been, moreover, combined with Article 23, i.e. with a new constitution drawn up subsequently to accession achieved using Article 23. In this case, the question would be whether the State that would then have appeared would have been a new State or whether, in accordance with the case-law of the German Constitutional Court, united Germany would not have been distinguished from the former FRG.²

In any case, the German Basic Law postulates the existence, specifically in the Preamble, of a Germany not confined to FRG territory. This was also manifested firstly in the Treaty of 23 October 1954 between the Western Powers and the FRG, reserving to the Westerners the rights and responsibilities they had exercised and held regarding Germany as a whole, particularly in connection with the reunification or an act of the nature of a peace treaty, and, secondly, in the Treaty of 20 September 1955 between the USSR and the GDR, which refers to the obligations of both States under international agreements in respect of Germany as a whole. It would thus be possible to imagine two distinct but possibly consecutive situations: extension of FRG territory to East German territory and/or the reappearance of Germany. For practical reasons, it is the first case that eventuated.³

It seems hard to give answers to the various positions that might arise by referring exclusively to West German internal categories. These are only factual elements, undoubtedly important, within an analysis that has to be done with respect to both Community and international law.

At the present stage, the essential question has been whether after German unification extension of the territorial area of application of Community law to GDR territory required amendment to the Community Treaties. The answer has to be seen on two levels: principles and practical arrangements. As far as principles go, do Community law and international law authorize extension of the territorial area of application of Treaties without their amendment? If so, do the Treaties allow for the new situation created by unification?⁴

I. The Extension of the Territorial Area of Application of Community Law

In political terms, agreement has been reached to avoid any amendment to the Treaties. Here the interest of the Federal Republic, or more specifically of its governing coalition, coincided with that of other Member States. For the Federal Republic, the path of amendment would have made the extension of the area of application of the Treaties subject to completion by all Member States of national ratification procedures. This operation, naturally long in any case, could be lengthened still further by an adverse stance by a State or a national parliament, not because it opposed ratification, but because it would seek to link acceptance to the securing of advantages elsewhere. The German government did not want to leave achievement of unification to the mercy of some other Community member. It is, in this regard, easy to imagine the difficulties a united Germany would have encountered despite the protocol on German internal trade, if Community rules had not been applied to the whole of its territory, de facto imposing maintenance of a border. For other Member States, non-amendment implies acceptance by Germany of all the Treaty rules, particularly those regarding the institutions, avoiding renewed questioning of weighting at the Council of Ministers and the distribution of European Parliament seats. It is no doubt because of agreement reached on this point that no thorough legal analysis was done. The question could have been considered from the view points of both Community law and international law.

A. Community Law

It cannot be maintained that the authors of the EEC Treaty clearly perceived that its area of application could automatically, and thus without amendment, be extended to the territory of the GDR after German unification. It is true that the issue of relationships between unification and European integration was not absent from their thinking; the preamble to the Bonn Convention of 26 May 1952 between France, the US, Britain and the FRG contained the following wording:

Whereas the Three Powers and the Federal Republic recognize that both the new relationship to be established between them by the present Convention and its related Conventions and the Treaties for the creation of an integrated European Community, in particular the Treaty on the Establishment of the European Coal and Steel Community and the Treaty on the Establishment of the European Defence Community, are essential steps to the achievement of their common aim for a unified Germany integrated within the European Community.

However, apart from the fact that this declaration of intent only defines the objective without stating ways to reach it, it never entered into force, failing French ratification, and the Paris Convention of 23 October 1954 replacing it did not contain any such clarification.

During negotiation of the EEC Treaty, the Federal Republic seemed concerned to ensure that the commitments it was about to make would not become a barrier to reunification in the future. This is why, in agreement with the other delegations, Ophüls declared at the meeting of heads of delegation on 28 February 1957 that the German Government regarded it as possible to amend the Treaties should Germany reunify. According to explanations given to the Bundestag, this formula left the German Government's hands free in the event of reunification, so that united Germany would retain the freedom to be in the EEC and EURATOM or not.⁵

At a political level it must be concluded that the EEC members were not unaware of the problem and undoubtedly had a preference for participation by a united Germany in Community Europe. For its part, the Federal Republic hoped to keep its hands free. In these circumstances, it has to be considered that the authors of the Treaty wished neither to exclude amendment nor impose it.

Considering the text of the Treaties themselves, it is evident that they covered only the territory of the contracting parties, the FRG among them (Article 227 EEC and 198 ECSC). The Protocol on German internal trade⁶ shows that the Treaties applied only to the territory of the FRG as it existed at the time at which they were concluded, and not to the territory of Germany. This is also the way the Court interpreted the Treaty when stating in connection with the Protocol that:

The dispensation thus granted does not have the result of making the German Democratic Republic part of the Community, but only that a special system applies to it as a territory which is not part of the Community.⁷

Thus nothing in the text of the Treaty allows us to infer that it could apply ipso facto to the whole of united Germany without amendment.

What of subsequent practice? First of all, any reference to the precedent of the Saar should be excluded. In fact, after the Saar became an integral part of the FRG through application of Article 23 of the Basic Law, the ECSC Treaty called for no amendment since, as Paul Reuter noted, it already previously applied to Saar territory because of the French Government's powers regarding Saar external policy and the position taken in this respect by the authorities of the Saar. The Franco-German exchange of letters of 18 April 1952 indicated that by signing the ECSC Treaty the French Government was acting on behalf of the Saar, but that its status would be settled subsequently.⁸

When Algeria became independent, the Treaty ceased to be applicable to Algerian territory without treaty amendment being required. The effect of independence operated, though with some delay.⁹ A number of other changes in the territorial area have been due to changes in the status of non-European territories of the Community, which shifted from overseas department to overseas territory status, for instance. But is this not merely application of the legal categories provided for by the Treaty?¹⁰ The precedent most often cited is the change made in 1984 when the Treaty ceased to apply to the territory of Greenland. Apart from the fact that this was a reduction, not an increase, in the area of territorial application of the Treaty, it may be asked whether it was really necessary to follow the procedure of Article 236, and if so, whether this was because of Greenland's `departure' or else because of the specific arrangements to apply to it thereafter.¹¹

Summing up, the inclusion of the GDR's territory in the area of application of Community law is not organized by the Treaties. Community law gives no obvious answer to the question whether the operation can only be accomplished by amending the Treaty. Failing a specific solution, it is appropriate to refer to international law.

B. International Law

There are precedents as to the effects of a merger of States on participation by the State resulting from the merger in international organizations. As in both the union between Egypt and Syria and the merger between Tanganyika and Zanzibar, the new State automatically replaced the old ones in world organizations. Where one of the merged States was not a member of those organizations, the State resulting from the merger was able to participate in world organizations without re-admission. However, the territorial application of ILO conventions was not changed by merger; union treaties contained specific clauses to this effect.¹² But these precedents are not of much use, firstly because in the German case unification does not give rise to a new State, and more particularly because of the difference in nature between the Community (as an organization of regional integration) and cooperation organizations on a universal level.

One must therefore ask whether German unification does not fall under one of the cases provided for in the 1978 Vienna Convention on Succession of States in respect of Treaties. As is known, this convention scarcely innovated in the matter, taking up existing customary rules. It is for this reason that we do not share Glaesner's doubts as regard the customary aspects of the various rules of the Vienna Convention dealing with these problems.¹³ In effect, unlike other parts of the convention, the provisions governing the union of States and the transferral of territory are limited to a codification of existing practice.

Can the provisions on annexation or partial transfer of territories be invoked? In this case, the principle of moving treaty boundaries can be applied. To the extent that the personality of the State benefitting from the transfer persists, treaties it concluded are extended to the transferred part. On the contrary, treaties previously applying to this territory cease to have effect. Applied to the German situation, these rules would imply automatic extension of the area of application of the Community treaties, but also the cessation from effect of all treaties concluded by the GDR. But in our opinion it is difficult to regard German unification as a territorial transfer. Article 15 of the Vienna Convention on the Succession of States in respect of Treaties specifies that the case of transfer covers situations `[w]hen part of the territory of a State or when any territory for the international relations of which a State is responsible, not being part of that State, becomes part of the territory of another State.' The GDR cannot be regarded as part of the territory of another State. Some have considered that it was part of the territory of Germany, which has not ceased to exist, but can it in this case be claimed that Germany is a third party in relation to the FRG? Moreover, in partial transfer of territory, the State from which the transferred territory is detached continues to exist, which is not the case in the German instance. The theory of moving treaty boundaries recognized by Article 15 is not, we feel, capable of being applied here.¹⁴

Must recourse be had to the rules on unification of States (Article 31 of the Vienna Convention)? In a union of States, the international personality of the components disappears in favour of the creation of a new personality, that of the successor State. But it is obvious that German unification, while leading to disappearance of the GDR, allows the international personality of the FRG to persist. Moreover, some would argue that it cannot be a union of States since the two Germanies were not States foreign to each other, but two parts of the German nation, united by specific links.¹⁵ But for third States, is it not a case of two States recognized as such, and both UN members? Whatever be the reservations that might be formulated because of the continued existence of the former Germany, the situation can be treated like a union of States.

However that may be, Article 31 of the Vienna Convention provides that, in the event of union, the treaties concluded by one of the States remain in force vis-à-vis the successor State but retain their previous area of territorial application. The successor State may decide to extend the area of application of a treaty to the whole of its territory. However, this rule of extension linked to the mere wish of the successor finds an exception in the case of restricted multilateral treaties, for which the consent of all parties is necessary.¹⁶ And the Community Treaties do constitute restricted multilateral treaties both because of their object and goal.¹⁷ Extending the Treaties to the territory of the GDR would only therefore be possible with the agreement of all EEC members.

To sum up, we are faced with two solutions, one in favour of automatic extension, the other subordinating extension to agreement by all parties. It should be noted that Treaty revision is not necessary in either case. Clearly, neither solution corresponds exactly to the actual situation; though the closest analogue is that of the union of States. This leads us to say that unanimous consent of the parties may render recourse to revision superfluous and allow extension of the territorial area of application of the Treaty. Even were the thesis of automatic extension adopted, ought determination of the territorial field of application not to be regarded as one of the essential bases of consent by the parties, given the specific nature of the Treaties, aimed at achieving an economic union? If so, any change in territorial area would be subordinated to the absence of objections by any of the parties.

It should also be noted that opting for application of Article 15 would automatically entail cessation of Treaties concluded by the GDR with third parties.

Having regard to the spirit of the Convention on these specific points, which runs against the tabula rasa line generally followed by the Convention, it would be best to assert the rule of continuity.

For in the event of transfer of part of the territory of a State, the personality of the State from which territory is detached persists. Treaties concluded by that State remain in force, but with restricted territorial application. This explains why the Convention can provide for both automatic extension and cessation of effects of previous treaties on the territory transferred. The rights of third parties are preserved by continuance of the same treaties on the part of the territory not affected by transfer. In the case of a union of States, the rule of continuation in force is explained by the disappearance of both States. Rights of third parties would be affected were continued effect not mandatory.

In our view, it should be concluded that in the context of German unification neither the FRG nor the GDR can put forward merger in order to terminate their previous obligations.¹⁸ Extension to the whole territory of the enlarged state of treaties concluded by either component is, as in the case of union of States, possible, with a reservation as to rules relating to restricted multilateral treaties, for which agreement of all parties is necessary to bring it about.

The European Council was well aware of this since, without taking a position on the substance of the debate, it closed the dispute when at its special meeting in Dublin on 28 April 1990 it indicated that application of the Community Treaties to the FRG after unification would take place without revision. Whatever the assumption one may take, the Heads of State or Government, acting on behalf of the States they represented and not as a Community agent, accepted extension. Their declaration may be analysed either as the act necessary according to Article 31(2)(a) to bring about extension of the Community Treaties or as renunciation pursuant to Article 15 of their right to call for a formal amendment to the essential basis for their consent constituted by the territorial area of application of the Treaties as set in 1958.

But this renunciation of Treaty revision constrains the Community to settle the problems arising from application of Community law to the territory of the ex-GDR with the existing instruments.

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1 Professor, Robert Schuman University of Strasbourg. This is a revised version of an article which appeared in French in 94 Revue générale du droit international public (1990) 997-1018.

2 See the Federal Constitutional Court Judgment of 31 July 1972 and the article by Koenig, `Le traité fondamental entre les deux Républiques allemandes et son interprétation par le tribunal constitutionnel allemand', AFDI (1973) 147.

3 As is known, the path chosen was to use Article 23 of the Basic Law, with the clarification, designed to reassure the Polish State, that this was to be the final use of Article 23, which would be eliminated from the Basic Law. This elimination was expressly provided for in the Treaty of Political Union.

4 Cf. Glaesner, `Les problèmes de droit communaitaire soulevés par l'unification allemande', Revue du Marché Commun (1990) 647-654.

5 Deutscher Bundestag, 2. Wahlperiode, Drucksache 360, Nachtrag zu 3440, 3615, Verhandlungen des Deutschen Bundestages 2. Wahlperiode 1953, Stenographische Berichte 38, 5 July 1957, annex 2, p. 13386. On this point cf. H.J. Küsters, Fondements de la Communauté économique européenne (1990) 286.

6 Or similarly Article 82 EEC.

7 Case 14/74, Norddeutsches Vieh- und Fleischkontor v. Hauptzollamt Hamburg-Jonas, Judgment of 1 October 1974, [1974] ECR 899 at 907.

8 La Communauté européenne du charbon et de l'acier, (1953) 108.

9 The problem of relations between the EEC and Algeria after the latter's independence aroused controversy relating to the nullity, in respect of the new state, of Treaty Article 227(2) until such time as conclusion of an association agreement put relations into a new framework. Cf. Tavernier, `Aspects juridiques des relations entre la CEE et l'Algérie', RTDE (1972) 1.

10 Cf. Dewost et al., Le droit de la Communauté économique européenne, vol. 15, Les dispositions générales et finales (1987) 482.

11 The question of Greenland's `withdrawal' was complicated by the whole controversy over the impossibility of a State's withdrawing from the Community, which could have legitimated recourse to amendment; on the question, see Les dispositions générales... ibid., at 491, Harhoff, `Greenland's Withdrawal from the European Communities', CML Rev. (1983) 13 and Wiess, EL Rev (1985) 173.

12 Cf. H.G. Schermers, International Institutional Law (1980) 56ff.

13 Supra note 3.

14 On the Convention, see Z. Meriboute, La codification de la succession d'Etats aux traités (1984), particularly on Article 15, at 168 and on Article 31, at 186.

15 Cf. Koenig, op. cit.; The German Constitutional Court found that where law on relations between the Länder and the Federation had lacunae, recourse should be had to international law, thus legitimating recourse to the arrangements for succession in the event of a union of States.

16 Article 31(2)(a).

17 According to Article 30(2) of the Vienna Convention on the law of treaties, a treaty is regarded as a restricted multilateral treaty where it follows from the restricted number of States that have taken part in negotiating it and from the object and goal of the Treaty that its application in its entirety among all the parties is an essential condition for the consent of each of them to be bound by it.

18 Which of course does not rule out their re-negotiation. They could be terminated by application of Article 31(1)(b) on condition that it `appears from the treaty or is otherwise established that application of the treaty in respect of the successor State would be incompatible with the object and purpose of the treaty or would radically change the condition for its operation'. A German amendment aimed at providing for cessation of effects of treaties incompatible with other Convention obligations (particularly in commercial, customs and extradition respects) has been withdrawn (Meriboute, op. cit. at 202).

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