762A 00/12–2951: Telegram

The United States High Commissioner for Germany (McCloy) to the Secretary of State

confidential

906. Berlin’s comments in reply to Deptel 765 to Bonn rptd Berlin 2281 are quoted below. We agree in general with both comments and recommendations and have taken similar position here in respect of Fr objections to financial law (Bonn’s 859 rptd to Berlin 1252). It is true that both Fed Govt and Senate have recently been trying to extend fed law to include Berlin to maximum extent possible but as long as suspension of Arts 23 and 144 basic law remain in effect and specific provisions of fed law in question do not constitute security threat in themselves we see no objection to liberal interpretation of Mantelgesetz procedure.

Berlin comments follow.

“For Reber. Ref Deptel 765, Dec 21 rptd Berlin 228.

(1) Fed law for protection constitution requires FedRep and laender create agencies for protection constitutional order and directs that agencies render mutual assistance and exchange info. Berlin authorities desire enact law since they feel it will enable Berlin to demand assistance of federal and laender agencies in protection of constitutional order in Berlin. At present Berlin can only request such assistance but has no legal ground for demanding it. Berlin office for protection constitution is already in existence on basis purely Berlin law to which Kommandatura did not object.

Fr oppose adoption fed law allegedly because it provides no reciprocity for Berlin. They claim it would require Berlin to assist in protection of constitution and constitutional order of FedRep but gives Berlin nothing in return, we believe however, Fr objections actually based on their fundamental opposition to Berlin’s taking over law which permit fed agencies authority in Berlin. Noteworthy that their comments regarding this law have been directed primarily against Art V.

Re reciprocity aspect, Berlin authorities recognize possibility that adoption of law in its present form may not obligate FedRep and [Page 1968] laender to cooperate in protection Berlin’s constitutional order, since law was drafted before Berlin program for taking over fed legislation was in effect and does not include now standard clause making law valid for Berlin provided latter enacts it in accordance Berlin constitution. Berliners say, however, they foresee no difficulty persuading Fed Govt to amend law by inserting Berlin clause.

(2) Re this particular law: Berlin authorities maintain it is of basic importance to preservation constitutional order in Berlin. Whether or not this true seems depend on Ger interpretation of Ger law. We feel, in any case, utility of a law is not basis for Allied objections. Our view is that as law does not adversely affect Allied interests, no reasons for Allied objections exist.

Re broader issue raised by Fr (that Allied concessions re Mantelgesetz and Schaeffer law3 are inciting further demands by Berliners): This is justification to extent that Senate would like to see all fed legislation applicable in Berlin. This is in line with their desire that Berlin should be de jure 12th land and, so long as this not possible, de facto 12th land, with uniform laws, etc., at least in fields where Fed Govt, under basic law, has exclusive or concurrent legislative powers. They also argue, and rightly, that in many instances Berlin can reduce its budgetary costs by enacting in Berlin fed laws which provide for certain functions in Berlin to be performed by fed agencies or authorities (Schaeffer law is outstanding example).

Fr have finally, although reluctantly, admitted that Berlin may enact fed laws by means of Mantelgesetz (satisfactory formula for Mantelgesetz was recently agreed with Berlin authorities). They still maintain, however, that only in exceptional cases should fed agencies be permitted to function in Berlin under such Mantelgesetz. They also claim and Brit agree to some extent that Berlin and FedRep are following “policy of erosion” whereby each fed law enacted here brings Berlin closer to 12th land status. Combination of this plus operations of fed agencies in Berlin constitute threat to “security”, according to Fr, in that Berlin’s quadripartite status may thus be undermined, hence provoking some action by Soviets.

US element in Kommandatura has consistently argued as follows: Berlin cannot become 12th land by any German act so long as Allies continue suspension of Articles 23 and 144 of basic law and Article 1, paras 2 and 3 of Berlin constitution. Very fact that fed laws not applicable in Berlin until enacted by Berlin underlines city’s separate status. For [many?] financial and other practical reasons, we can perceive no objections to uniformity of Berlin–Federal Republic legislation and, in fact, many advantages are to be gained by uniformity and by resulting Berlin–FedRep cooperation. Operations of Federal agencies in Berlin are amply covered [BK/AHC?]/0(51)63 (see para 1 mydesp 498 Dec 174). In view these facts, US element sees no reason for objecting to any fed law adopted by Berlin Mantelgesetz unless provisions of law itself were such as to constitute real security threat here.

(3) Our recommendation re law for protection of constitution in [Berlin whether?] or not it serves practical purpose in Berlin is matter [Page 1969] for German decision and, since law poses no security threat, allies should not object.

On broader issue, we believe that showdown will have to come sooner or later and as French have broached subject at governmental level it might as well be thrashed out now. Since this subject involves considerable technical detail, however, with which Dept not familiar, you may wish suggest it be referred back to AHC (which French have by-passed) [possibly?] because French HICOM is less inclined to support French in Berlin than is Quai d’Orsay. Signed Lyon”.

McCloy
  1. Not printed; it reported that the French had presented an aide-mémoire to the Department of State requesting that the United States join in taking a firm stand against the continued efforts to integrate Berlin with the Federal Republic through the adoption of Federal legislation.(762A.0221/12–2151)
  2. Not printed; it reported that the British and French had recommended annulment of specific passages in the Federal Law regulating financial relations between Berlin and the Federal Republic in order to protect Allied policy with regard to the status of Berlin. (862A.10/12–2451)
  3. Presumably a reference to the Federal Law regulating financial relations between Berlin and the Federal Republic of Germany.
  4. Not printed.