FRANCESCA SINISCALCHI

Problemi costituzionali della riunificazione della Germania

N. 155

Summary — Last year’s events in Eastern Europe have played the role of "accelerator", with a decisive influence for the succesful outcome of East Germany’s "peaceful revolution". The incredible speed with which the reestablishment of German statal unity has been accomplished is due to the previous presence of adequate rules in the constitution (Grundgesetz) of the Federal Republic of Germany. The "Preamble" of the constitution and articles 23 and 146 were so formulated as to facilitate at any time free adhesion of the German Democratic Republic (in the form of its Länder) to the Federation (Bund). The reestablishment of statal unity was set as constitutional goal, on the presupposal of the continuity of the legal personality of the German Reich in the Federal Republic of Germany. Two different ways had been appointed: art. 23 of the Grundgesetz (GG) disposed that the "fundamental law" "had to enter into force" in "other parts of Germany" "after their adhesion"; art. 146 foresaw the duration of the Grundgesetz until the entry into force of a constitution, and reminded of the duty of the German people "to accomplish in free determination the unity and Freedom of Germany". The unity of Germany has actually been reestablished on the way of art. 23 GG; it was prepared from two treaties between the Federal Republic of Germany and the German Democratic Republic. This procedure had already been adopted in the case of the adhesion of the Saarland, that had been occupied by France, in 1957. The first treaty, signed on the 18th May 1990, created the basis for the economical, financial and social unification; it was anyway soon followed by the Treaty of unity (Einheitsvertrag), signed on the 31st August 1990: it provides the constitutional and international law regulation for the adhesion of the German Democratic Republic, in the form of its five Länder, to the Federal Republic of Germany, on the 3rd October 1990. The singular characteristic of this process is that a sovereign state (the German Democratic Republic) not only renounces at his souvereignity becoming member of a federation, but literally disappears. The Federal Republic of Germany maintains its identity, and its territory comprehends the five "east" Länder, that have been ad hoc reestablished just before the conclusion of the second treaty.The German reunification has been negotiated with the four Allied Forces; the definitive regulation on the retirement of the Allied forces from the German territory has been concluded in Moscow on the 12th September 1990. Germany recovers so its full sovereignity; another treaty with the Soviet Union regulates forms of help and cooperation between the two countries. The Treaty of Unity contains modification of the Grundgesetz: many of them are the result of international obligations ad agreements: art. 23 is repealed, since the unity of Germany has been accomplished; the treaties with the Allied Forces foresee the disavowal of Germany at any pretence on the territories east of the Oder-Neisse borderline with Poland. The regulation of property concerning the confiscations of personalities from communist authorities is to be constitutionalised in the new art. 143 GG: confiscations happened in the period 1945/1949 in the Eastern part of Germany are no more to be restored. This regulation has already given way to protests and been charged of incostitutionality; this charge was anyway refused by a first judgement of the Federal Constitutional Court.Art. 146 has not been repealed, but only integrated with a statement on the accomplishment of the unity and freedom of Germany: the possibility remains, that the actual constitution be replaced by another. The maintaining of this article has also been criticised, since the presupposals and procedures of its application are not clear. The treaties and international obligations of the German Democratic Republic are taken from the Federal Republic of Germany when it is possible and compatible with the latter’s international obligations. The essay analizes finally the legal and political implications of the unity of Germany for the European Community.