Repository. Research Institute University European Institute. Cadmus, on THE DRAFT TREATY ESTABLISHING THE EUROPEAN UNION University Badia Fiesolana, San Domenico di Fiesole (FI) REPORT ON THE FEDERAL REPUBLIC OF GERMANY Access E.U.I. WORKING PAPER No. 85/147 European European University Institute Open UNIVERSITY OF STRASBOURG and In In Collaboration With The EUROPEAN POLICY UNIT Author(s). Available Carl Otto Lenz February 1985 The TEPSA 2020. © by in Library EUI the by produced EDI version Digitised Repository. Research Institute University A Critical Analysis of the Draft Treaty Establishing the without permission of the author. Bieber, Jacque, and Weiler (eds.), An Ever-Closer Union: European Union, in European Perspectives, Luxembourg. All rights reserved. No part of this paper may be reproduced in any form European This may paper This be cited as forthcoming in: Institute. Cadmus, on University Printed in Italy in February 1985 50016 S. Domenico di.Fiesole (FI) Access European University Institute (c) (c) European Policy Unit European Open Badia Fiesolana Author(s). Available Italy The 2020. © in Library EUI the by produced version Digitised Repository. Research Institute University European continue the development of the European University Institute as a Communities. Both as in-depth background studies and as policy research projectsscholars on of agenda. topicsEuropean of forum current interest affairs. for to • the Second, Third,European critical Institute,to to discussionenhancesponsor was of the createdindividual key documentationto items further availablethree on mainthe Communitygoals. to First, to examine in detail the Draft to CommunityTreaty policy-making. Establishing the European Union. This UniversityWorking of Paper, Strasbourg presented and at TEPSA, analysesthe organisedconference in a conference their and own right, to these projects should prove valuable revised in light of the discussion, will appear in book form later Unit can be obtained from the Director, at the European University in in 1985 along with other studies of the Draft Treaty. Institute in Florence. Institute. The The European Policy Unit, at the European University In In October 1984, the EPU, in collaboration with the Further information about the work of the European Policy Cadmus, on University Access European Open The The European Unit Policy Author(s). Available The 2020. © in Library EUI the by produced version Digitised Repository. Research Institute University European Institute. Cadmus, on University Access European Open Author(s). Available The 2020. © in Library EUI the by produced version Digitised Repository. Research A. CONSTITUTIONAL QUESTIONS Institute I. The Ratification Process University The Draft Treaty establishing the European Union, is, in the terminology of the Basic Law, a treaty "with foreign European States". It is therefore to be concluded by the Federal President. (Article 59(1)). To be valid, the relevant Institute. act of the Federal President requires counter signature Cadmus, on by the Federal Chancellor or the appropriate Federal University Minister (Article 58(1)). From these provisions, and Access from their position in Section 5 of the Basic Law, European headed "the Federal President", one may conclude that Open not only the competence to conclude treaties, but also Author(s). the preparation of the conclusion of the treaty, is a Available matter for the executive, i.e. for the Federal The 2020. © Government, responsible to Parliament. in Library Since the draft regulates the political relationships of EUI the Federation, and furthermore relates to objects of the federal legislation, it requires the agreement or by collaboration of the bodies competent for federal legislation, in the form of a federal law. This means produced that the Federal Government must first submit the draft version Digitised Repository. to the Bundesrat, in the usual procedure. The Bundestag Research and Bundesrat may of course call upon the Government to bring the Draft Treaty before them for debate, but this Institute call does not replace submission by the Federal Government. The draft goes back with the Bundesrat's University opinion to the Federal Government, which has a chance to comment on the opinion. It then goes to the Bundestag for the so-called First Reading, in which the Federal European Government and spokesmen for the parliamentary groups Institute. would set out their basic attitude towards the Treaty. Cadmus, on It is then referred to the committees; it may be taken University that the Foreign Affairs Committee will draw up the Access decisive report for the Bundestag, while a dozen or so European other committees will be called on to give opinions to Open the Foreign Affairs Committee (so-called joint Author(s). consultation). A special problem is presented by the Available participation of the Europe Committee, which the The 2020. © Bundestag has formed. This Committee, consisting half in of German Bundestag members and half of German members Library of the European Parliament, was set up in 1983 to advise EUI the German Bundestag on fundamental questions of the European policy. According to the procedure developed by for this matter, the relevant report of the Europe Committee would go not to the full House, but only to produced the Foreign Affairs Committee, which is competent, and version Digitised Repository. to certain other committees for joint consultation. The Research Europe Committee would thus be not on the same level as the classical committees of the German Bundestag, but Institute subordinate to them; nevertheless, through it there would be a possibility of letting the views of German University members active in the European Parliament be included in the discussions. European On the basis of the Foreign Affairs Committee's report Institute. containing the opinions of the other consultative Cadmus, on committees and the result of the consultations on the University views of the Europe Committee, the second (and last) Access debate in the German Bundestag on the law agreeing to . European Open the Draft Treaty would be held. No motions for amendments to the Draft Treaty are admissible. The Author(s). Draft Treaty may only be accepted in toto, or rejected. Available If the act of acceptance is adopted, it is transmitted The 2020. © to the Bundesrat. The act of acceptance is passed if in the Bundesrat consents to it or another of the Library conditions laid down in Article 78 of the Basic Law is EUI met. It is not passed if an objection by the Bundesrat the is not overridden by the Bundestag, or if necessary by consent is not secured. Going into detail here would exceed the bounds of this paper. If the act of produced acceptance is passed according to these provisions, it version Digitised Repository. is then, after counter signature by the appropriate Research members of the Federal Government, signed by the Federal President and published in the Federal Law Gazette. Institute Summarizing, it may be said that the joint action of the University Federal Government, Bundestag, Bundesrat and Federal President is necessary, to pass an act of acceptance of the Draft Treaty establishing the European Union. European Institute. II. Is amendment of the Basic Law necessary in order to Cadmus, on implement the Treaty in the Federal Republic of Germany? University Access a) Preliminary remark: The Basic Law of the Federal European Republic of Germany is a very pro-integration Open constitution. Even the preamble states that "the German Author(s). People" is "animated by the resolve ... to serve the Available peace of the world as an equal partner in a united The 2020. © Europe". Again, Article 24 says that the Federation may in by legislation transfer sovereign powers to Library intergovernmental institutions, may enter a system of EUI mutual collective security for the maintenance of peace, the and in doing so will consent to limitations upon its by rights to sovereignty. produced version Digitised Repository. The text of the preamble, which designates equal Research partnership of the Federal Republic of Germany in a united Europe as the appropriate form of the promotion Institute of peace expected of the Federal Republic, constitutes not only an encouragement but also an empowerment for University the Federal Government, Bundestag and Bundesrat to advance along the path towards the unification of Europe, insofar as the goals of the Draft Treaty do not European contradict those of the Basic Law. On a reading of the Institute. relevant articles of the Basic Law, particularly the Cadmus, on preamble ("to serve the peace of the world"), Article University 1(2) (human rights as the basis of peace), Article 9(2) Access (ban on associations directed against the concept of European international understanding, Article 24(2) (maintenance Open of peace through entering a system of mutual collective Author(s). security), Article 24(3) (peaceful settlement of Available disputes between States), Article 26 (ban on acts The 2020. © tending to disturb the peaceful relations between in nations, Government responsibility for armaments Library production), Article 87a (armed forces only "for EUI defence") and the corresponding provisions of the Draft the Treaty (preamble "resolved to strengthen and preserve by peace and liberty by an ever closer union"), Article 9, 3rd and 4th indents, Article 63(1) and (2), the produced similarity of objectives and of language leaps to the version Digitised Repository. eye. From the viewpoint of promoting peace, then, the Research Basic Law and the Draft Treaty are not in contradiction. Institute b) The Draft Treaty does not contradict the duty of the constitutional bodies of the Federal Republic of University Germany to maintain the national and political unity of the German people and to achieve the unity and freedom of Germany in free self-determination, nor does it European withdraw this obligation from them. The existing legal Institute. position is to that extent maintained, in particular Cadmus, Article 7 of the Germany Treaty of 1952, whereby the on University three Western occupying powers undertake to support the Access reunification of the Germans in a democratic State.