862.011/2–2549: Telegram

The United States Political Adviser for Germany ( Murphy ) to the Secretary of State


144. Personal for Saltzman and Hickerson. Re mytel 249 February 17 from Berlin.1 As consequence of further discussions held first in Berlin between US and UK representatives and during last two days in Frankfurt with French representatives, political advisers have prepared a second report to military governors concluding their examination of Bonn draft of constitution.2 Discussions in Berlin were exclusively US–UK and although establishing certain common positions were not given to French as joint agreement. In meantime French representatives had gone to Paris where they consulted Schuman. UK representative departed for London last night to discuss report with his government. It is expected that report will be considered at next meeting of military governors in Frankfurt March 1.

In view of wide divergence of opinion on constitution between French–US on the one hand and the UK on the other that became apparent in the military governors last meeting,3 the report represents considerable progress in reaching allied accord on what can be said to the parliamentary council preferably before the final reading of the constitution. Allied differences on financial powers of federal government were resolved and the principal issues on which differences still exist relate to Article 36 and to the incorporation of Berlin in Western Germany. Perhaps the most important compromise is the proposed additional sentence for Article 36 (2) which in effect would limit the federal government’s competence in the field of priority legislation to those matters affecting more than one Land. French representatives, however, still hold view that Article 36 confers too broad powers and would modify certain subparagraphs of this article.

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Both UK and French representatives make it clear that report does not commit their governments and both political advisers will consult their governments before meeting of military governors next week. While we are hopeful that UK and French military governors will receive instructions flexible enough to permit an agreement to be reached here this outcome cannot be definitely predicted as yet, particularly if French should desire to delay approach to parliamentary council by referring disputed points to governments.

Following is text of political advisers’ report:

“The political advisers have considered the basic law in conjunction with the letter of advice to the military governors (annex H of the London agreement) and the aide-mémoire of 22 November 1948 handed to the president of the parliamentary council.

While there are a number of points on which the text of the basic law may be held to deviate from the principles laid down by the allies, some difference of opinion exists between the political advisers on the extent to which these deviations are of importance sufficient to distort the basically federal and decentralized character of the constitution and to render it unacceptable as it stands. Nevertheless the political advisers have agreed upon a number of points in the basic law to which they recommend to the military governors that the attention of the Germans should be drawn with a view to their modification.

1. Distribution of powers between the federation and the Laender.

(a) It was agreed that the general effect of Articles 35, 36 and 36A was to concentrate too large a sphere of power in the hands of the federal government to the detriment of the competence of the Land governments. In particular, it was felt that the subjects listed in Article 36 in which the federal government had priority to legislate were too extensive in view of the fact that the definition of the federal government’s competence in regard to this priority legislation was vague. The political advisers therefore propose that the Germans should be invited to insert a clearer and more limiting definition in the first sentence of Article 36 (2) on the following lines:

‘In the foregoing fields the federation shall legislate only on those matters which so clearly, directly and integrally affect the several Laender as to render individual Land action thereon substantially ineffective or detrimental.’

(b) It was further agreed:

That the provisions of Article 35 (1) 2 ‘citizenship of the federation and the Laender’ should be transferred to Article 36;
That the words ‘in its entirety’ should be deleted from Article 36 (7);
The provision in Article 36 (2) with regard to the press should be deleted. [The French political adviser desires either to transfer Article 36 (3), (6), (10), (11) and (15) to Article 36 A or to make them subject to concurrent decision of the Volkstag and the Bundesrat in accordance with Article 105.]4 Fr.
That the first sentence of Article 36 A should be amended so as to include substantially the same qualifications as in Article 36 (2); and
That paragraph one of Article 36 A should be deleted.

2. Police powers.

It was agreed that Article 118 C was generally incompatible with the conditions of the allied occupation during which the occupying powers are responsible ultimately for security. The political advisers recommend that this article should be suspended during the occupation or until the military governors shall determine otherwise. The political advisers desire to draw the attention of the military governors to the desirability of an early decision on the general question of the federal police powers.

3. Limitation of federal financial powers.

It was agreed that in order to bring the German proposals into exact conformity with the allied aide-mémoire it would be necessary to redraft the financial clauses of the basic law. As this does not appear opportune for tactical reasons in dealing with the Germans, the financial advisers considered in separate committee what modifications could be made to the basic law as it stands in order to incorporate the essential principles of allied policy. The financial advisers reached agreement on the proposals at appendix A5 which they have incorporated, for the sake of brevity, as amendments to the relevant articles. The political advisers suggest that these proposals should be presented to the parliamentary council as an indication of the changes which would meet allied requirements, the actual drafting being left to the Germans.

4. Independence of the judiciary.

[The British political adviser considers that the provisions of article 129–1 (2) were generally inadequate to protect the independence of federal judges and recommends that the attention of the parliamentary council should be drawn to this fact.] Br.

5. Powers of the federation to establish its own agencies.

[The French political adviser considers that the possibility of the federation to establish its own administrative agencies is clearly defined, but in an extensive manner. Article 116 (3) gives to the federation the possibility to establish new administrations with substructure [Page 210] at lower levels with the approval of a two-thirds majority of the Bundesrat; Article 112–2 (5) permits it in certain cases to give detailed instructions to the authorities of the Laender. By the interplay of these two provisions the federation could extend its administrative powers in all the fields of its legislative competence. The French political adviser considers that the powers of the federation in this field must be more exactly limited and that, in any case, paragraph 5 of Article 112–2 should be deleted.] Fr.

6. Freedom of access to public service of a non-political character.

It was agreed that there should be some provision in the basic law for the institution and maintenance of a democratic civil service. The political advisers recommend that the parliamentary council should be informed that the law should contain provisions on the following lines:

  • ‘(a) Appointments to and promotions in the public service shall be based solely upon the individual’s fitness to discharge the responsibilities of the position as determined by broad tests of the knowledge and ability required to discharge the responsibilities of the position.
  • (b) The privileges and emoluments of public office shall be based upon the requirements of the position only.
  • (c) Security of tenure shall be extended equally to all members of the public service excepting those engaged in temporary and manual employment.’

7. Ineligibility of civil servants to simultaneous membership in the Volkstag.

The political advisers recommend that Article 62 (1) should at least be amended so as to exclude holders of public office from membership of the Volkstag. They consider that the possibility exists of an agreement with the Germans on this point by restricting the category to which this would apply.

8. Land boundaries.

The French and US political advisers proposed that the military governors should request the deletion of Article 25 on the subject of Land boundaries. They consider that the provisions of this article are generally too centralist, in particular paragraph 4. In view of the statements already made by the military governors to the ministers president it was agreed that this question was one which is intimately connected with inter-allied arrangements and that the best procedure would be for the latter to be discussed by the military governors at their meeting as it has implications outside the immediate question of the basic law.

9. Berlin.

The policy of the occupying powers towards the incorporation of Berlin in the West German federation is still under consideration by the British and French Governments but the following compromise formulae were proposed and submitted for consideration.

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US formula.

Add at the end of Article 22 (1):

Insofar as it applies to greater Berlin, this paragraph shall be suspended until legislation providing for such participation has been adopted by the federal parliament. In the meantime; representatives of greater Berlin shall participate in the federal parliament as non-voting observers.

French formula.

Reference to Berlin in the preamble should be deleted.
Article 22 (1) should be drafted as follows: ‘Pending the accession of other parts of Germany, and particularly of greater Berlin, the basic law shall apply to the territory of the following Laender: Baden, et cetera, et cetera.’”

Sent Department 144, repeated London 19, Paris 19.

  1. Not printed; it reported the discussion of the Military Governors, February 16, concerning the introduction of the West mark in Berlin. For documentation on the Berlin currency conversion, see pp. 643 ff.
  2. For the text of the first Political Advisers’ report, see telegram 271, supra. For the text of the draft Basic Law passed by the Main Committee of the Parliamentary Council on February 10, see Documents on the German Federal Constitution, pp. 88–105.
  3. For a report on the Military Governors’ meeting on February 16, see Murphy’s letter to Saltzman, February 17, p. 199.
  4. Brackets in this telegram are in the source text.
  5. Appendix A was transmitted in telegram 145, February 25, from Frankfurt, not printed. It proposed (a) redrafts of Articles 122A, 122B, and 123 to define more clearly and limit federal taxation powers, (b) deletion of Article 138C–4 concerning common taxes and distribution of federal taxes among the Laender. The U.S. financial adviser proposed the deletion of Articles 124A and 124B, while the British financial adviser considered them inconsistent with the needs of parliamentary control. The French financial adviser considered the value of the proposed amendments dependent on the solution to the problem of federal expenditures. (862.011/2–2549)