DEPARTMENT OF THE ARMY

OFFICE OF THE CHIEF OF STAFF

WASHINGTON, D.C. 20310

16 April 1965

Professor Henry A. Kissinger
Center for International Affairs
Harvard University
Cambridge, Massachusetts

Dear Professor Kissinger:

Knowing how very burdened you are with academic and other work, I am reluctant to impose on you. I would, however, be very grateful if you could read the inclosed 1945-1962 chronology of events regarding Berlin.

This unclassified study was prepared as a background paper for use within the Army staff. Since during part of the 1961/1962 Berlin crisis you served, if I remember correctly, as an adviser to the President on Berlin, I would deeply appreciate it, if you were to give me your impression as to whether or not the paper actually reflects the intangibles and psychological reality of the situation. It is unnecessary to say that any other comments you might have would be more than welcome.

July 7, 1965

PERSONAL AND CONFIDENTIAL

Mr. Fritz Kraemer
4319 Fessenden Street, N.W.
Washington, D. C.

My dear Kraemer:

I thought you might like to see
some memoranda of conversation I had
with various German leaders on my visit
there. Needless to say, they should be
held in strictest confidence.

With warm regards.

Statement

[L] This crime, in a most benevolent description of a key important task

# "PROVN" STUDY OUTLINE

1. **Problem:** To develop new courses of action to be taken in South Vietnam which will, in conjunction with current actions, modified as necessary, lead in due time to successful accomplishment of US aims and objectives.

2. **Guidance:** The study will:

a. Be based on the broadest possible perspective.

b. Summarize by region the historical evolution of the cohesive and divisive influences of geography, climate, weather, religion, ethnics, politics, economics, military heritage and tradition, and culture.

c. Concisely and clearly define the situation as it is in South Vietnam.

d. Prescribe the process of evolution required to develop a reasonable cohesion within the country, set out by stages with the objectives to be accomplished during each stage.

e. Anticipate the obstacles that will complicate the attainment of d above.

f. Develop actions required to cope with the obstacles of e above and attain the objectives of d above on a practical time schedule.

g. Address specific problems and specific actions to alleviate them. Complex problems will be broken down into manageable proportions.

3. **Outline:**

a. **Historical perspective:** A concise summary of the historical evolution of South Vietnam, and to a limited extent Southeast Asia, highlighting the resultant strengths and weaknesses which affect prosecution of the war. Particular attention will be given to the cohesive and divisive influences of: religion (Buddhists, Catholics, Cao Dai, Hoa Hao, Animists, Protestants, Atheists); ethnic (Vietnamese, Cambodians, Chinese, Montagnards, Indians, Nungs, French, Cham); geographical spread (North, Center, South, rural vs urban, lowlander vs highlander); political evolution (governmental and bureaucratic effectiveness, relations with other Southeast Asia nations, free world, and communist countries plus internal activities of Viet Cong and Dai Viet and Nationalist political parties and sub-parties); climate and weather (emphasis on the two monsoons and debilitating effect of temperature and humidity by geographical region); economics (industry, agriculture, animal husbandry, fishing, services, standards of living by vocation); military (tradition, heritage, discipline, effectiveness, manpower); culture (education, aspirations, health, welfare, mass psychology; French, Chinese, US influences).

Incl 1

b. **Current Situation -- South Vietnam:** A concise statement of the existing situation in South Vietnam divided into the political (State), military, economic, and psycho-social fields. The situation should be expressed in terms which will allow application of yardsticks (see e below) for measuring future change.

c. **US Aims and Objectives -- South Vietnam or the Ultimate Situation:** A pictorialization of the kind of South Vietnam that will result ultimately if US aims and objectives are realized. The pictorialization should be organized in the same format as b above and should be an extension of b above by successive application of yardsticks of progress (see e below).

d. **Analysis:** An analysis of differences between b and c above, highlighting strengths and weaknesses whether inherent or likely to be introduced as either aid on our part or obstacles on communist part. The analysis will conclude with broadly stated requirements for overcoming obstacles and weaknesses and arriving at the ultimate achievement of US aims and objectives.

e. **Yardsticks:** The development of yardsticks by which progress can be measured in progressing from b to c above. The yardsticks are not limited in number or time span but must effectively measure the transition. While it is hoped that as many as possible will be objective in nature, subjective yardsticks must be developed when objective ones are infeasible.

f. **Specific Actions:** The development of a recommended list of specific actions attacking specific problems, the total effect of which is to move the situation from that of b above to that of c above by solving the broadly stated requirements of d above. The actions will be listed in order of priority so that progress is staged with sequentially correlated activity. (For example, progress in one area may have to be restrained to allow another to catch up -- economic aid cannot outstrip military security). Further progress in achieving the specific actions must be measurable by the yardsticks. Actions will show what is to be done, who is to do it, by when or in coordination with what it is to be done, and the major assets needed and how they are acquired.

2

Henry V. Krausader

Sincerely yours,

With warm regards.

Johnson.

a copy of the letter I sent to General
I thought you might like to see

My venerable Kraemer:

Washington, D. C.
4319 Feenenden Street, N. W.
Mr. Fritz Kraemer

February 11, 1966

# BASIC LAW

## Significance of the term Basic Law

The name Basic Law (Grundgesetz) instead of Constitution (Verfassung) was chosen intentionally by the Bonn Assembly to indicate the non-final character of the new order established by it. The PREEMBLE states, in fact, specifically, that the Basic Law was adopted "to organize Germany for a transitional period". The Preamble contains, furthermore, the following significant sentence: "The entire German people remains called upon to accomplish, by free self-determination, the unity and freedom of Germany". The language ("remains called upon" bleibt aufgefordert) is so striking from a grammatical point of view that it clearly points to a desire on the part of the makers of the law to imply that the real task of providing Germany with a Constitution remains to be done. The express reference to "free self-determination" is a subtle hint that according to German opinion the Basic Law was not prepared under circumstances guaranteeing such self-determination.

That this is, indeed, the background mood behind the preamble is also clearly revealed in the last of the 146 Articles of the Basic Law, which runs as follows:

"This Basic Law shall become invalid on the day when a Constitution adopted in a free decision by the German people comes into force".

The selection of the small provincial town of Bonn as the capital was also due to a desire to underline the temporary and provisional character of the new order.

TERRITORY TO WHICH BASIC LAW APPLIES

According to its 23rd Article the Basic Law "shall apply for the time being in the territory of the Laender (States)¹);

Baden²), Bavaria³), Bremen³), Greater Berlin⁴), Hamburg⁵), Hesse³), Lower Saxony⁵), North Rhine-Westphalia⁵), Rhineland-Palatinate²), Schleswig-Holstein⁵), "Huerttemberg-Baden³), "Huerttemberg-Hohenzollern²)".

Leaving the door wide open for the remaining German States in the Eastern Zone the Article declares that the "Law will become effective in other parts of Germany on their accession".

The reference to Greater Berlin is misleading. The Western Allies, so far, have refused to permit inclusion of Greater Berlin, or its Western Sectors, in the projected new Republic. Reluctantly the Germans accepted this verdict, but the Basic Law refers to the non-inclusion of Berlin, or parts of it, in an indirect manner only. Art. 144, par. 2 provides, in fact, that

"In so far as restrictions are imposed on the application of the Basic Law to one of the Laender enumerated in Art. 23, or to a part⁶) of one of these Laender, that Land or part of it, shall nevertheless have the right ..... (to send representatives to the two chambers of the Federal Legislature).

While Berlin is not mentioned by name, the paragraph was written into the Basic Law only because of Berlin. In their official message to the Germans in which they announced Allied approval of the Basic Law, the Military Governors commented on the Berlin question as follows:

"We interpret Art. 23 and Art. 144, par. 2 as constituting acceptance of our previous request that, while Berlin may not

1) Laender (pronounced lender as in money lender) is a plural meaning States. The singular is Land (the a pronounced as in saga)

2) French Zone

3) US Zone

4) Not included in any "Zone"

5) British Zone

6) This, of course, is a reference to the Western sectors of Berlin

be accorded voting membership in (the two Houses of the Federal Legislature), she may nevertheless designate a small number of representatives to attend the meetings of these two legislative bodies."

## FUTURE CHANGES IN STATE BOUNDARIES

Art. 28 lays down in seven lengthy paragraphs the procedure by which new States may be formed, existing ones amalgamated, or their boundaries changed. Of particular importance is the provision that such changes must be confirmed by a plebiscite to be held in the areas involved.

Art. 113 provides that, as an exception to the rules set forth in Art. 28, "the reorganization of the territory comprising the Laender Baden, Wuerttemberg-Baden, and Wuerttemberg-Hohenzollern may be accomplished by (mere) agreement between the Laender concerned."

The above articles actually are a dead letter at present, since the Allies have declared their unwillingness to permit any changes in existing Land boundaries before a Peace Treaty with Germany would have been signed. The reason for this attitude must be found in the fact, that the present boundaries between the three Zones of Occupation follow Land boundaries throughout. A change of Land boundaries might easily, therefore, place parts of a Land in one Zone and other parts of the same Land in another Zone, which would be highly inconvenient. The Allies, on the other hand, are not prepared to modify present Zone boundaries in accordance with changes in Land boundaries that might take place in accordance with Articles 28 and 118.

As a result the Military Governors, in the letter in which they declared their approval of the Basic Law, made the following specific reservations regarding the two Articles in question: "Unless the (3) High Commissioners unanimously change this position, the powers set forth in these Articles shall not be exercised and the boundaries of all Laender, except those between Wuerttemberg-Baden and Wuerttemberg-Hohenzollern, shall remain as now fixed until the time of a Peace Treaty." Thus Art. 28 and 118 will be actually suspended in their practical application for the time being, except for the fact that the boundaries between the two Wuerttembergs may be changed in the manner indicated in Art. 118.

2

BASIC STRUCTURE OF THE NEW GERMAN STATE

The Problem:

The great problem facing the Bonn Assembly charged with the task of drafting a "Constitution" was to find a compromise between two opposite tendencies. The Allies, as well as certain German political forces, particularly the Conservatives, wanted a Federal State in which the powers of the Federal Government were reduced to a minimum and State rights as broad as possible. As far as the Allies were concerned this desire was most marked in the French. It was least strong with the British, while the Americans adopted an attitude somewhere in between. The German Social Democrats, on the other hand, backed in part by the British, strove for a strong Federal Government with State rights held to a minimum. Since the Conservative Christian-Democrats (known as Christian Socialists in Bavaria) and the Social Democrats together can count about 80 percent of the German electorate among their followers, with the remainder going to smaller parties, the struggle between these two tendencies was a struggle between the two main political groups of Western Germany.

A solution of the conflict had to be sought in a compromise which would provide for a central authority sufficiently strong to govern and administer the country effectively, but not too strong to make the rights of the single States illusory. The Basic Law as a whole and in detail is the result of such compromising. If the Law is complicated and, in parts, difficult to understand this is due to the unceasing struggle to combine what could only be combined with the greatest of efforts. Whenever the Basic Law grants certain powers to the Federal authorities we always find additional clauses intended to safeguard the rights of the States at the same time. It may be said that on the whole a certain balance has been struck between Federal powers and State rights, at least on paper. But the entire structure has become very cumbersome and many of the safety clauses inserted in the interest of the States may in the end prove of little real value, if there should develop in Germany a ground swell for greater unification and centralization.

General Character of New German State

The general character of the new German State is outlined quite
well in Art. 20 of the Basic Law:

"The Federal Republic of Germany is a democratic and social
federal state.

"All State authority emanates from the people and is exercised by
the people through elections and plebiscites and by means of
separate legislative, executive, and judicial organs.

"All legislation must remain within the limits set forth by the
Constitution; executive and judicial powers must be exercised in
accordance with the established legal order."

The Article not only emphasizes strongly the federal character of the
new Germany, it also states flatly that all power emanates from the
people and recognizes the classical division of power into three branches:
legislative, executive and judicial. The third paragraph must be under-
stood against the background of recent German experiences. It expressly
demands "rule in accordance with law" as opposed to the arbitrary and law-
less government by dictatorship.

While Art. 20²) states the overall principle, Art. 28 makes it un-
mistakably clear that not only in the Federation but in the single States
too "the constitutional order must conform to the principles of a ré-
publican³), democratic and social state based on the rule of law" and that
each State, each county, and each community, must have a representative
assembly, the members of which are chosen by universal, and equal suffrage
in free and secret elections. The Art. specifically "guarantees" the right
of the communities (towns, villages) to administer local affairs under
their own responsibility, with the provisions, however, that in (smaller)
communities a parish meeting may take the place of the elective body
through which democratic local self-government is normally effected.

1) Social State presumably means a State bent on improving social condi-
tions, and on creating equality of opportunity for all.

2) Considered of such vital importance that amendments to the Basic Law
affecting the basic principles laid down in Articles 1(Civil Rights)
and 20 were expressly declared inadmissible (Art. 79, par. 3).

3) The connotations of the word republican, as used by European politi-
cal scientists, are different from ours. Republican in the European
and German terminology simply means: not monarchical. We speak of
the first, second and third French Republic in the same manner to
indicate a regime not headed by a monarch i.e. a hereditary ruler.
Art. 28 would make it impossible, therefore, for the Bavarian
monarchists to carry into practice, legally, their favorite dream
of a restoration of the House of Wittelsbach (Ruling House of
Bavaria 1180-1918).

CIVIL RIGHTS

The first Section (Articles 1 thru 19) of the Basic Law is entitled
BASIC RIGHTS. The Section constitutes a very comprehensive and detailed
catalog of the rights of the individual. It is quite significant that
after 14 years of dictatorship the makers of the Basic Law considered it
advisable to place at the very beginning of their new "Constitution" the
clauses intended to protect the individual from infringements by the
State.

The first three Articles of Section 1 contain such general declara-
tions of principle as this:

"The dignity of man shall be inviolable.

"To respect and protect it shall be the duty of all State authori-
ties (Art. 1, par. 1).

"Everyone shall have the right to the free development of his per-
sonality in so far as he does not infringe the rights of others
or offend against the constitutional order or the moral code
(Art. 2, par. 1).

"No one may be discriminated against or privileged because of his
sex, descent, race, language, homeland and origin, faith, or
his religious and political opinions (Art. 3, par. 3)."

On the other hand there are specific provisions intended to safe-
guard:

freedom of religion and the position of conscientious objectors
(Art. 4)

freedom of speech, of press, movies, radio, of research and of
teaching (Art. 5)

the institution of marriage, the right of parents to educate their
children, and the rights of children born out of wedlock (Art. 6)

the right of parents to decide whether or not their children shall
have religious instruction, the right of citizens to establish,
under certain conditions, private schools (Art. 7)

freedom of assembly (Art. 8)

freedom of association (Art. 9)

security of postal- and telecommunications (Art. 10)

freedom of movement for all Germans throughout the federal terri-
tory (Art. 11)

freedom to choose one's occupation, place of work and place of
occupational training with forced labor being expressly for-
bidden (Art. 12)

inviolability of the home, freedom from unlawful searches or other "restrictions" (Art. 13) and the right of petition (Art. 17).

Art. 14 expressly "guarantees" the rights of property and inheritance adding, however, that "the contents and limitations of these two rights shall be determined by legislation" and that "property shall involve obligations and must be used so as to serve also the general welfare". Paragraph 3 of Art. 14 states that expropriation may be effected only for the well-being of the general public and only by or on the basis of a law regulating the extent and nature of the compensation due to the owner, such compensation to be determined after just consideration of the interests of the general public and the parties concerned, with the owner entitled to appeal to the ordinary courts regarding the extent of the compensation. Art. 15 declares specifically that real estate, natural resources, and means of production (industry 1) may, for the purpose of nationalization, be transferred to public ownership or other forms of publicly controlled economy under the safeguards, regarding compensation, laid down in Art. 14.

Art. 16 contains provisions protecting the citizen against being arbitrarily deprived of his citizenship, it also forbids the extradition of Germans to foreign countries, and establishes the "right of asylum (in Germany) for the politically persecuted".

Art. 19 lays down the limits within which Individual Rights may be restricted by law. Under the same Article "any person whose rights are being infringed upon by public authorities may appeal to the Courts".

Section I (Art. 1-19) of the Basic Law is supplemented by Articles 101, 103 and 104. Art. 101 protects individuals against being tried by any Court other than those lawfully established. Art. 103 guarantees a proper legal hearing to anyone brought before a Court; offers full protection against ex post facto laws; and declares that no one may be punished more than once for the same offense. Art. 104 specifies in detail the right of habeas corpus.

## Safeguards against abuse of Democratic Freedoms (Art. 18 and 21)

A most interesting proof that the new German state is unwilling to permit extremists to use the democratic freedoms for their subversive aims is to be found in Art. 18:

"Whoever abuses freedom of expression of opinion, in particular freedom of the press (Art. 5, par. 1); freedom of teaching (Art. 5, par. 2); freedom of assembly (Art. 7); freedom of association (Art. 9);

secrecy of mail, post and telecommunications (Art. 10); property (Art. 14) or the right of asylum (Art. 16, par. 2) in order to attack the free democratic basis and order shall forfeit these basic rights. Forfeiture and its extent shall be pronounced by a federal constitutional court."

The same general idea has also found expression in Art. 21 which deals with a particular aspect of freedom of association:

"1. Parties shall participate in forming the political will of the people. They can be freely formed. Their internal organizations must conform to democratic principles and, by disclosure of the sources of their funds, be assured against undemocratic influences.

"2. Parties which, according to their aims and behavior of their members, seek to impair or abolish a free and democratic basic order or to jeopardize the existence of the federal republic of Germany shall be unconstitutional. A federal constitutional court shall decide on the question of unconstitutionality.

"3. Details shall be regulated by federal legislation."

THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT

This Study Supplements
Column 2 of Chart I

INDEX

Introductory Note

The Federal Government (Concept)

The Federal Chancellor

Election of the Federal Chancellor

Termination of Federal Chancellor's Office

Diet majority expresses lack of confidence

Diet does not grant vote of confidence requested
by Chancellor

Office ends when a new Diet convenes

Chancellor resigns from his office

The Federal Ministers

The Chancellor and his Cabinet

Political limitations of Chancellor's power to choose Ministers

The Chancellor as Chairman of the Cabinet

Conclusions

## Introductory Note

Considering that in this country we have come to regard the terms "President" and "Chief Executive" as virtually synonymous, it is very important to note that under the German Basic Law the Federal President is not the Chief Executive.

Like the US President the German Federal President is Head of the State and as such he fulfills certain functions similar to those of our President (he particularly represents the Federation in its relations with other countries), but unlike the President of the United States he is not the Head, or even a member of, the Government's Executive Branch. The Federal President is a figurehead whose position, as far as actual power is concerned, is somewhat similar to that of the British King.

## The Federal Government

"Federal Government" (Bundesregierung) is the name used by the Basic Law for what in American terminology would be described as the Executive Branch of the Federal Government.

The "Federal Government" consists of the federal Chancellor and the federal Ministers (Art. 62).

### A. The Federal Chancellor

#### Election of the Federal Chancellor

Art. 63 (par. 1) provides that the "Federal Chancellor shall be elected by the Federal Diet on proposal of the Federal President". To be elected a candidate must obtain the votes of the majority of the members of the Diet (not merely the vote of the majority of those present and voting), and the Federal President is bound to appoint to the Chancellorship the candidate chosen by such a majority (Art. 63, par. 2).

If the individual nominated by the President is not elected, then the Diet, within 14 days from the unsuccessful ballot, may elect, always with the vote of more than half of its members, a person not nominated by the President (Art. 63, par. 3).

A possible election impasse is solved in the following manner (Art. 63, par. 4):

If no Chancellor is duly elected within the above time limit, a new ballot shall take place immediately in which he is elected who receives more votes than any other candidate.

If in such new ballot the person elected actually does receive the votes of more than half of the Diet's members, the Federal President is bound to appoint him Chancellor. If he does not obtain such a majority the Federal President has the choice of either appointing him or dissolving the Diet.

It results from the foregoing that Chancellors are made by the Federal Diet and not by the Federal President. Any individual elected by over half the Diet members must be appointed by the President regardless of whether or not that person was originally nominated for the Chancellorship by the President. Only if no such qualified majority for a Chancellor can be found does the President have a choice of either appointing a minority Chancellor or appealing to the people for election of a new Diet. Here we have one of the few instances where the otherwise rather powerless President is able to make, on his own, a decision of real political importance.

## Termination of Federal Chancellor's Office

Since the Chancellor is elected to his office by the Diet it is only logical that the Diet should have the power to force him out of office.

## Diet Majority expresses lack of confidence (Art. 67)

In Great Britain, France, Italy, Belgium and virtually all other European democracies, including incidentally the late Weimar Republic, Governments are bound to relinquish power, if a majority of the Legislative Assembly adopts a vote of no-confidence in their regard. This system, known as Parliamentary Government, has also been adopted by the new German Basic Law: The Chancellor must go if a majority of the Diet members expressly declare that they lack confidence in him (Art. 67). To prevent, however, an irresponsible and heterogeneous majority from overthrowing the Chancellor without any ability or willingness on their part to replace him, Art. 67 states in unequivocal terms that the Federal Diet may express lack of confidence in the Chancellor only by actually electing a successor with a majority of its members. Any successor thus elected must be appointed to the Chancellorship by the President. This provision is intended to make impossible a recurrence of the intolerable situation prevailing during the last years of the Weimar Republic when majorities composed of extreme rightists and extreme leftists were able to overthrow each and every Government of the more moderate center parties although the extremists, bitterly hostile to each other, were entirely unwilling to agree on a successor to the Government they had defeated by combining their forces of negation.

2

Diet does not grant vote of confidence requested by Chancellor (Art. 68)

Instead of waiting for a no-confidence motion to be adopted by the Diet the Chancellor may also force the issue himself by expressly asking the Diet to give him a formal vote of confidence. If, in the ensuing ballot, he does not obtain the support of a majority of the members of the Diet, he has suffered a defeat, but the defeat as such is not sufficient to force him out of office. In fact, the defeated Chancellor may simply stay on until, if ever, a majority of the Diet expresses their positive lack of confidence in him in the only way recognized as effective under the Basic Law i.e. by actually electing a new Chancellor.

He may also, however, react to his defeat in a different manner. Under Art. 63 he may "propose" to the Federal President to dissolve the Diet that refused the Chancellor's request for a vote of confidence. If such proposal is actually made by the Chancellor then, and only then the President has a right, but no obligation, to dissolve the Diet within 21 days from the day when the balloting on the confidence vote occurred. If the President decides against dissolution - for example because he feels that a newly elected Diet would not differ in political composition from the one to be dissolved - the situation from a legal point of view is exactly as if the defeated Chancellor had never proposed dissolution to the President, which means that he may stay on until a new Chancellor is duly elected. It should be noted that the President's right to dissolve lapses automatically, if within the 21 day period the Diet were to elect a new Chancellor with the vote of more than half of its members (Art. 68, par. 1, last sentence).

Though the provisions of Art. 68, explained in the foregoing two paragraphs, may seem somewhat involved, the actual significance of the Art. is clear. It permits the Chancellor to say to the Diet in effect: either you support me unequivocally by a formal vote of confidence or else you will risk dissolution. Apart from the fact that it is left to the President to accept or refuse the Chancellor's eventual proposal to dissolve the Diet, this threat can be effective only if the Diet actually has reasons to view the possibility of dissolution with dismay. The Diet, moreover, even after having refused a vote of confidence to the Chancellor, may still prevent dissolution by duly electing a new Chancellor. In conclusion we want to reemphasize the very important fact that the Chancellor is not bound to relinquish power merely because he has failed to receive the vote of confidence he had been asking for. The explanation, of course, is to be found in the basic principle contained in Art. 67 and discussed above on page 2 that the Diet shall not be permitted to overthrow a Chancellor by any means other than an actual election of a replacement (successor).

3

Office ends when a new Diet convenes (Art. 69)

The office of a Chancellor ends when a new Diet, replacing the one which elected him, convenes (Art. 69, par. 2). Whether the new Diet is the product of ordinary elections, taking place every four years, or whether it was elected because its predecessor had been dissolved by the President before the end of the normal four year period, makes no difference.

Chancellor resigning from his office (Art. 69)

Although the Basic Law does not expressly say so, there can be no doubt that a Chancellor may resign from his office. It should be noted, however, that under Art. 69, par. 3 a Chancellor must, on the President's request, continue in his functions until a new Chancellor has been appointed.

B. The Federal Ministers

It will be remembered that according to Art. 62 the Federal Government consists of the Chancellor and the Federal Ministers (Heads of the various Government Departments, like Minister of the Treasury, Minister of the Interior, etc.).

The Federal Ministers "shall be appointed and dismissed by the President upon the proposal of the Federal Chancellor" (Art. 64). Taken at its face value this would seem to imply that appointments and dismissals of Ministers require an agreement between President and Chancellor, since neither of the two, under the above formula, could act without the other. In view of the general weakness of the President's position it seems more than probable, though, that in practice the President will have no choice but to accept the Chancellor's "proposals".

That the framers of the Basic Law thought of the Federal Ministers as being "the Chancellor's men", who owe their position to his choice rather than to Presidential appointment, is also revealed by the fact that the end of a Chancellor's tenure (election of a new Chancellor, death, resignation, etc.) means automatic termination of the appointment of all Ministers (Art. 69, par. 2). No Minister, in other words, can "survive" the Chancellor who selected him for his office, which does not exclude, of course, that the new Chancellor may "propose" his re-appointment to the President.

At the request of the President or the Chancellor a Federal Minister must continue to carry out the duties of his office until a successor has been appointed (Art. 69, par. 3). This provision, which makes it legally

4

impossible for a Minister to "desert" his office, may assume particular
practical importance in case a Minister has tendered his resignation.
That such resignation is possible must be assumed, as a matter of course,
although the Basic Law does not expressly mention the right of Ministers
to resign.

The Basic Law is utterly silent regarding the possibility and con-
sequences of a vote of no-confidence directed not against the Chancellor
(Art. 67) but against an individual Minister.

There are no provisions on the one hand which would make it appear
that votes of no-confidence against individual Ministers are inadmissible.
On the other hand, however, the Basic Law does not follow the example of the
Weimar Constitution which, in its 54th Article, provided expressly that
"a Minister has to resign, if the Legislative Assembly (Reichstag) adopts
a formal motion of no-confidence in his regard". It would seem, therefore,
that while a vote of no-confidence against a Minister may occur in the
parliamentary practice of the Diet, the Minister involved is not necessarily
bound to resign. Adoption of such a motion by the Diet would, however,
put the Chancellor under political pressure and he might decide to "propose"
to the President dismissal of the Minister concerned. Should the Chancellor
refrain from doing so, the Diet might, as a last resort, remove the
Chancellor himself by electing a new one; provided, of course, that the
issue is considered sufficiently important by the Diet.

## C. The Chancellor and his Cabinet

### Political limitations of Chancellor's power to choose Ministers

It will be clear from what has been said so far that Ministers,
although appointed and dismissed by the Federal President "on proposal"
of the Chancellor, actually assume and relinquish their offices on the
basis of a decision by the Chancellor. It is not the President, but the
Chancellor, in other words, who selects the members of the Cabinet.

The Chancellor, however, may be overthrown at any time by a Diet
majority electing a new Chancellor, which means that his political fate
depends on continued support by the Diet. Thus in choosing his Cabinet
members the Chancellor will have to listen most carefully to the Diet's
wishes. The political party or parties forming the majority that elected
the Chancellor will, beyond any doubt, insist that certain individuals be
selected for the various Cabinet posts. The bargaining among parties for
positions in the Cabinet will, in accordance with the tradition of the
Parliamentary Government system, have a much greater influence on the
actual composition of each Cabinet than personal desires of the Chancellor.

5

This situation contrasts sharply with the one prevailing in the US where the President is more or less free in the choice of Department heads, although his nominees require, technically, "confirmation" by the Senate. It must be particularly noted that once a US Cabinet member has been approved by the Senate, Congress has virtually no means of forcing him out of office. There is no such thing in our constitutional life as a vote of no-confidence, nor can the President be voted out of office by Congress, while the German Chancellor loses his position, if a majority of the Diet wants to replace him.

## The Chancellor as Chairman of the Cabinet

The first sentence of Art. 65 states flatly that "the Chancellor determines, and assumes responsibility for, the general course of policy". It is this provision which makes the Chancellorship the most important office in the new Republic. It confers on the Chancellor the role of political leader and Chief Executive.

However, "within the frame of the general policy laid down by the Chancellor each Minister directs his department independently and on his own responsibility" (Art. 65, 2nd sentence). In case of differences of opinion between Ministers the decision, moreover, will be made by the Government as a whole (Chancellor and all Ministers), and not by the Chancellor alone (Art. 65, third sentence). Thus, while Chancellor and Minister together form a body in many respects similar to the "US President and his Cabinet", the position of the Chancellor with respect to the Ministers is much less strong than that of the US President in regard to his Secretaries. The Chancellor, to some extent, is only "first among equals" (primus inter pares), the Ministers are his colleagues rather than subordinates. This results clearly also from the last sentence of Art. 65: "The Chancellor conducts Federal Government business in accordance with rules of procedure adopted by the Federal Government" (presumably by majority vote!) "and approved by the President of the Federation". The Chancellor, in other words, is bound by rules of procedure agreed upon by the Cabinet as a body and consented to by the President. It should also be noted in this connection that the Basic Law, intentionally or not, refrains from repeating the following provision contained in Art. 55 of the Weimar Constitution: "The Chancellor presides over the Federal Government".

## Conclusions:

In spite of the fact that the Chancellor is instrumental in appointing and dismissing Ministers, in spite of the fact, also, that it is he who determines the general course of policy, the Ministers, nevertheless, enjoy a considerable amount of independence. It is conceivable,

6

therefore, that a Minister with a strong personality and solid backing
in the Diet might, in administering his department, follow a very inde-
pendent course, barely in keeping with the general policy directives
laid down by the Chancellor. If such a Minister, in addition, wins
over a majority of the Cabinet, he may even force the Chancellor to
modify those general policies considerably. The Chancellor might be
very reluctant to propose his dismissal to the President, if there is
any reason to believe that the Diet might react to such dismissal by
overthrowing the Chancellor himself. The position, in the British
Cabinet, of Mr. Bevin who frequently seems to overshadow Prime Minister
Attlee, should perhaps be kept in mind to understand better the politi-
cal intangibles involved in such a situation.

DIVISION OF LEGISLATIVE POWERS BETWEEN FEDERATION AND STATES

## Basic Principle

Except where the Basic Law itself grants legislative power to the Federation, the right to legislate rests with the States (Art. 70, par. 1).

## "Exclusive" and "Concurrent" legislative powers of the Federation

The above basic principle seems simple enough, but a quick understanding of the actual distribution of legislative powers is made somewhat difficult by the fact that the Basic Law, instead of simply enumerating the fields in which the Federation can legislate - thereby leaving all other fields to the States by implication - operates with the traditional German concepts of "exclusive" and "concurrent" Federal powers of legislation.

Article 73 lists in fact eleven fields (Foreign Affairs; Federal Citizenship; Currency, Money and Coinage; Customs; Federal Railways); Post and Telecommunications; Patents and Copyrights; etc., etc.) in which the Federation has exclusive legislative powers. Art. 71 states that in those "exclusive" fields the States may legislate only "if and in so far as they are expressly empowered to do so by a Federal Law."

Art. 74, on the other hand, enumerates 23 fields in which the Federation has but a "concurrent" power to legislate. As was the case under the Weimar Constitution, the word "concurrent" is being construed to mean: concurrent with a right of the States to legislate on the same fields. Art. 72 explains the specific meaning of the term "concurrent" as follows:

> As regards the (23) fields of "concurrent" legislation the States shall have power to legislate only so long and so far as the Federation does not use its own legislative power in those fields.

In other words, as soon as the Federation does choose to legislate regarding any of the "concurrent" fields, the States immediately lose their chance of making laws on the same subjects. In practice, therefore, the Federation may at any time make the "concurrent" legislative powers of the States illusory simply by using to the limit its own right to legislate.

## Practical Significance of the "Concurrent" Powers

It must be admitted that paragraph 2 of Art. 72 does impose certain restrictions on the Federation regarding the use of "concurrent" legislative powers, but these restrictions are so vague and elastic that it is very difficult to label them other than "nominal".

1) All railways with the exception of some relatively unimportant small gauge railroads are Federal.

Art. 72, paragraph 2 says, in fact:

"The Federation shall have the power to legislate in these fields (of concurrent legislation) in so far as a necessity for regulation by Federal Law exists, because

1. A matter cannot be effectively regulated by legislation of individual States,

2. Regulation by a State law would prejudice interests of other States or of the Federation as a whole or

3. Preservation of the legal and economic unity of the Federation, in particular the preservation of the uniformity of living conditions, demands a Federal law".

"Who is to decide, however, whether the Federation is justified in claiming that enactment of a Federal law is necessary, because "the matter cannot be effectively regulated by legislation of individual States" or because "regulation by a State law would prejudice interests of other States" or finally because "preservation of the legal and economic unity of the Federation, in particular the preservation of uniformity of living conditions, demands such an enactment"? Art. 93, par. 2, provides, it is true, that a Federal Constitutional Court shall "decide on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and duties of the highest Federal organs", but it remains to be seen whether such a Court would actually offer any protection to the States against a tendency of the Federal Legislature to interpret its "concurrent" legislative power in the broadest possible sense. Any comparison with the US Supreme Court would be out of place, since the long tradition behind that Court is non-existent in Germany. The Weimar Constitution, too, had provided for such a Federal Constitutional Court to decide controversies between the Federation and the States, but when the Federal Government headed by von Papen forcibly evicted the lawful Prussian Government replacing it by a mere Federal High Commissioner, action initiated before the Court by the Prussian Government, and by the governments of other States, merely resulted in a court decision dodging the issue in such a manner that von Papen could consider himself justified in maintaining and retaining his rule by Commissioner. Which he did.

The Military Governors of the US, the UK and France obviously were quite aware of the fact that the rather vague formula used in Art. 72, paragraph 2 to circumscribe the use of concurrent legislative powers by the Federation, might be interpreted very broadly and sweepingly by the Federal Legislature. Art. 72, paragraph 2, subparagraph 3, seemed to arouse their special suspicion, since in their official message to the Germans, in which they announced Allied approval of the Basic Law, the Military Governors had this comment to make on the provisions concerned:

2

Fields of legislation left to the States

If we examine the list of eleven fields reserved for "exclusive"
Federal legislation, the additional list of 23 "concurrent" fields, which
might easily become objects of Federal legislation should the Federation
desire so, and finally the list of five fields of "normative" Federal
legislation, we may well ask: What, then, remains for legislation by the
States? The eleven, plus 23, plus five fields together embrace most of
the more important subjects that might require regulation by law. With
one very important exception: Education and Religion are not included,
which means that those matters are left to the States. Speaking in very
broad terms one might say, with some justification, that while the
Federation has jurisdiction over political and economic matters, the
States are in charge of cultural and spiritual affairs.

5

LEGISLATIVE AND EXECUTIVE (ADMINISTRATIVE) POWERS OF THE FEDERATION
AND THE STATES IN THE FIELD OF FINANCE

## Introductory Note

I. General structure of Section X (Finance) of the Basic Law (Art. 105 thru 115)

II. Legislative powers of the Federation and the States in regard to financial matters (Taxes and "financial monopolies") (Art. 105)

"Exclusive" and "concurrent" legislative powers of Federation

Exclusive legislative powers of the Federation

Concurrent legislative powers of the Federation

Practical Significance of the Federation's concurrent legislative powers

III. Distribution of Tax (and Monopoly) yields between Federation and States (Art. 106/107)

Tax yields accruing to Federation

Tax yields accruing to the States

Tax yields which, although assigned to the States in principle, may be claimed in part by the Federation

Distribution among the various States of Tax Yields accruing to the States (Art. 106, par. 4)

Temporary character of Provisions on Distribution of Tax Yields between Federation and States (Art. 107)

IV. Distribution of Administrative Powers in the Field of Finance between Federation and States (Art. 108)

Revenues directly administered by the Federation

Taxes administered partly by Federation and partly by the States

Taxes administered by the States (Art. 108, par. 3)

Taxes administered by the States on behalf of the Federation (Art. 108, par. 4)

General Administrative Regulations (Art. 108, paras. 5 and 3)

## Introductory Note

The tenth Section (Art. 105 thru 115) of the Basic Law is entitled Finances (Finanzwesen). The distribution of power between Federation and States in this field was the thorniest and most controversial of all the problems requiring solution by the frames of the Constitution. Then the Germans, finally, had drafted a number of provisions constituting a compromise between the "Centralists" (Social-Democrats), who wanted strong powers for the Federation and the "State Righters" (Conservatives), anxious to make the States as autonomous as possible, the 3 Western Allies demanded that further changes be made to guarantee more fully the right of the States to "adequate and independent revenues for the conduct of their affairs" (Memorandum of 2 March 1949, addressed by the Military Governors of the 3 Western Zones to the German Parliamentery Council at Bonn).

Drafted, re-drafted, and re-drafted again, with every comma and every word debated during long drawn out negotiations, the final text of the Section on Finances bears all the marks of a somewhat artificial and painfully arrived at lawyers' compromise. It establishes a system of interlocking Federal and State powers in the financial field, which can only be described as inordinately cumbersome and complicated.

General structure of Section X (Finances) of the Basic Law (Art. 105 thru 115)

1. Art. 105 determines the respective legislative powers of the Federation and the States in regard to taxes and "financial monopolies".

2. Artt. 106/107 lay down the rules governing the distribution of tax and monopoly yields between Federation and States.

3. Art. 106 states which taxes shall be "administered" (Collected, etc.) by Federal and which by State authorities.

These 4 Articles (105 thru 108) are the most important of the entire Section.

4. Art. 109 announces the general principle that the Federation on one hand and the States on the other shall be "self-supporting and independent of each other in their budget economy".

5. Artt. 110 thru 113 deal with the Annual Federal Budget from a more or less technical point of view. The Budget must be established, by Federal law, at the beginning of each fiscal year. All revenues and expenditures of the Federation must be estimated for each fiscal year and shown in the budget with expenditures and revenues balanced (Art. 110). Expenditures exceeding the budget, and any "extraordinary expenditures", are subject to express approval by the Federal Minister of Finance, which may be given only in case of "unforeseen and irrefutable necessity" (Art. 112). Decisions of one of the two Houses increasing the budget expenditures proposed by the Federal Government are subject to approval by the Federal Government (Art. 113). Art. 111 provides for the (exceptional) case that at the end of one fiscal year the budget (law) for the following year has not yet been adopted.

6. Art. 114 assigns the task of auditing federal revenues and expenditures, assets and liabilities to a special Audit Office (Rechnungshof, literally: Court of Accounts) the members of which shall enjoy the same independence as judges.

7. Art. 115 states flatly that the federation may obtain funds in the form of credits only on the basis of a Federal Law, only in case of extraordinary need and, as a rule, only to make expenditures for "productive purposes".

Since Artt. 109 thru 115 are of somewhat lesser importance and, moreover, easy to understand the following detailed analysis will be devoted exclusively to the basic and highly complex Articles 105, 106, 107 and 108.

Legislative powers of the Federation and the States in regard to financial matters (Taxes and "financial monopolies") Art. 105

As in all other fields of legislation there exists also with regard to financial legislation (taxes, financial monopolies) the difference between "exclusive" and "concurrent" legislative powers of the Federation. As explained elsewhere (see Chapter "Distribution of legislative powers between Federation and States") matters reserved for exclusive federal legislation cannot be legislated upon by the States, except where the States are expressly empowered to do so by a federal law. On matters

2

in regard to which the Federation has "concurrent" legislative powers the
States may legislate as long and as far as the Federation does not use its
"concurrent" power to legislate. As pointed out earlier, this really means
that the Federation can make the legislative power of the States on "con-
current" matters illusory merely by using its own "concurrent" powers to the
limit! It will also be remembered that certain restrictions placed on the
use of concurrent legislative powers by the Federation, in Art. 72, par. 2,
are so vague as to be virtually meaningless.

## Exclusive legislative powers of the Federation

"The Federation shall have exclusive legislative power over Customs (duties) and Financial Monopolies" (Art. 105, par. 1)

The term Financial Monopolies (Finanzmonopole) covers certain special
taxes customarily imposed on the manufacturing and/or sale of spe-
cific commodities in Germany, as for instance the Match Monopoly
(Zuendwaren Monopol), the Alcohol Distilling Monopoly (Brauntweinmono-
pol). At present there are not many such monopolies and the result-
ing revenues are relatively unimportant.

## Concurrent legislative powers of the Federation

The Federation shall have concurrent legislative powers on (Art. 105, par. 2)

### 1. Excise Taxes

(Verbrauchssteuern i.e. taxes on consumption as for example:
Beer Tax, Coffee Tax, Tea Tax, Tobacco Tax, Sugar Tax) and
Taxes on Business Transactions

(Verkehrssteuern as for example: the Turnover Tax or Umsatz-
steuer, a tax on the total volume of business of an individual
or a corporation regardless of income resulting from such busi-
ness; the Tax on Negotiable Instruments or Jochselsteuer; the
Motor Vehicle Tax (Kraftfahrzeugsteuer); the Transportation Tax
(Befoerderungssteuer); the Insurance Tax (Versicherungssteuer);
the Amusement Tax (Vergnuegungssteuer).

"except such Excise and Business Transactions Taxes as are assessed
in regard to a local situation¹) as for instance the Tax on the Ac-
quisition of Real Estate (Crunderwerbssteuer), Incremental Value
Tax (Wertsuwachssteuer) and the Fire Protection Tax (Feuerschutz-
steuer)."

1) It must be emphasized that our translation "taxes assessed in regard to a local situation" is a very free one. The literal English translation of the German STEUERN mit CERTLICH bedingtem WIRKUNGSKREIS would be "taxes of localized application" which is, indeed, the translation used in the available semi-official English translations. The German terminology itself is rather vague and there may be doubts in the future as to what exactly are "taxes with localized application". The three taxes especially mentioned, by way of example, as falling in the category of "taxes with localized application" are minor ones, and so, in all probability, would be all others that could be considered as belonging to that category.

3

Tax yields according to Federation

The following are earmarked for the Federation (Art. 106, par. 1):

1. All Customs Duties and proceeds of Financial Monopolies
(It will be remembered that the Federation has "exclusive" legislative power in regard to customs and monopolies)

2. The yields of all Excise Taxes with the exception of
   a) The Beer Tax, traditionally a source of revenue for the States

b) the "localized" Excise Taxes (this follows from Art. 106, par. 21)
(It will be remembered that the Federation has "concurrent" legislative powers in regard to all Excise Taxes, including the Beer Tax, but except the "localized" Excise Taxes)

3. The yields of the following Transaction Taxes:

a) The Transportation Tax, the proceeds of which result largely from the operation of the Federal Railroads

b) The Turnover Tax (Umsatzsteuer), one of the most important Taxes, which lately yielded larger revenues than any other single Tax, see p. 3.
(the Transportation and Turnover Tax belong to those Transaction Taxes over which the Federation has "concurrent" legislative power)

4. The yields of any Non-Recurrent, Special Purpose Tax on Property,
as for instance a non-recurrent Property Tax imposed to obtain funds to pay war damages.

(this also is a type of Tax (Property Tax) in regard to which
the Federation has "concurrent" legislative powers)

Tax yields according to the States

This leaves to the States the yields of the following Taxes specifically enumerated in Art. 106, par. 2:

1. a) The Beer Tax and the excise taxes with "local application"

b) All Taxes on Business Transactions
(with the exception of the Transportation Tax and, very important, the Turnover Tax)

2. Taxes on Income, Property, Inheritance¹)
(with the exception of Non-Recurrent Special Purpose Taxes on Property)

1) This would seem to include the Tax on Donations, closely akin to the Inheritance Tax, although the Donations Tax is not specifically mentioned either among the Taxes accruing to the States or among those accruing to the Federation¹

6

3. The so-called "REALSTEUERN" i.e.
the Land Taxes (GRUNDSTEUERN) and
the Trade Tax (GE'ERBESTEUER)

Art. 106, par. 2 contains also the general statement that taxes with "localized application" shall accrue to the States.

It should be particularly noted that all the taxes the yields of which accrue to the States are taxes in regard to which the Federation has ("concurrent") legislative powers, with the sole exception of such Excise and Transaction Taxes as are considered of "localized application". It is also true, of course, that the Federation, in spite of the fact that it has concurrent legislative power over the REALSTEUERN, cannot fix the actual rates of the Realsteuern (see above p. 3).

Art. 106, par. 2 leaves it to the States to determine, by State legislation, what parts of the tax yields accruing to the States, shall be left to the communities (towns, villages).

While under Art. 106, par. 2 the yields of the Income Tax (i.e. of the Assessed Income Tax, of the Corporation Tax and of the Wage Tax, comp. p. 4) are assigned to the States, Art. 106, par. 3 provides as follows:

"The Federation may, by means of a federal law which shall require the approval of the Federal Council, make a claim to a part of the income and corporation taxes to cover its expenditures not covered by other revenues, in particular, to cover grants which are to be made to States to meet expenditures in the fields of education, public health and welfare."

This provision is of the greatest practical importance, since the Assessed Income Tax and the Corporation Tax together produce greater yields than any other single Tax, including even the Turnover Tax

German Tax Yields
(in Million Deutsche Mark)

<table><thead><tr><th></th><th>Aug - Oct 1948</th><th>Nov 1948 - Jan 1949</th></tr></thead><tbody><tr><td>Assessed Income Tax</td><td>532.7</td><td>756.09</td></tr><tr><td>Corporation Tax</td><td>229.7</td><td>368.29</td></tr><tr><td>Wage Tax</td><td>384.1</td><td>473.26</td></tr><tr><td>Turnover Tax</td><td>602.5</td><td>837.23</td></tr><tr><td>Customs and Excise Taxes</td><td>454.6</td><td>685.80</td></tr><tr><td>All other Taxes<br>(except Trade Tax)</td><td>220.8</td><td>272.04</td></tr><tr><td>TOTAL</td><td>2424.4</td><td>3392.71</td></tr></tbody></table>

7

The basic principle, considered self-evident and therefore not expressly mentioned in the Basic Law, is this that of the tax yields accruing to the States, each State obtaining what is collected within its own territory. In order to make sure, however, that all the States, including the poorer ones, will have sufficient revenues for the conduct of their affairs, the following provision was inserted, as paragraph 4, in Art. 106:

"In order to ensure the working efficiency also of the States with low revenues and to equalize the differing burden of expenditure of the States, the Federation may make grants and take the funds necessary for this purpose from specific taxes of those accruing to the States. A federal law, which shall require the approval of the Federal Council, shall determine which taxes shall be utilized for this purpose and in what amounts and on what basis the grants shall be distributed among the States entitled to equalization; the grants must be handed directly to the States."

According to Art. 107 the provisions of Art. 106 on the distribution of tax yields between Federation and State are temporary in character as regards the taxes subject to "concurrent" federal legislation.

It will be remembered that all taxes are subject to concurrent federal legislation except certain Excise and Transaction Taxes with "localized application" and except for the fact that the Federation cannot fix the rates of the so-called "Realsteuern". The provision of Art. 106 that the yields of the "Realsteuern" and taxes with localized application shall accrue to the States 1s, indeed, final (Art. 107, 2nd sentence).

The final distribution of the yields of all other taxes shall be determined, not later than 31 Dec 1952, by means of a federal law, requiring APPROVAL by the Federal Council, the distribution to be effected "in such a manner that tax yields will accrue to the Federation and to the States in accordance with their respective functions". The latter phrase means, presumably, that under the new and final distribution of tax yields the Federation and the States should each be granted sufficient revenues to fulfill the tasks assigned to them under the Basic Law.

It will be noticed that Art. 107 does not mention Customs Duties and Final -
cial Monopolies, both subject to "exclusive" federal legislation. The
provision of Art. 106 that custom and monopoly revenues accrue to the Federa-
tion is final therefore. It could only be changed by an amendment to the
Basic Law.

8

Art. 108 provides that certain taxes shall be administered directly by
the Federation, that others shall be administered "by the States on behalf
of the Federation", and still others "by the States". Some taxes, finally,
are to be administered by the Federation to the extent that the yields are
claimed by the Federation, but otherwise by the States.

Customs, Financial Monopolies, the Excise Taxes (except those with local-
ized application), the Transportation Tax, and the Turnover Tax, as well
as Non-Recurrent Special Purpose Property Taxes are to be admin istered
throughout by federal finance authorities. If one compares this enumera-
tion with the list of revenues which, according to Art. 106, par. 1, accrue
to the Federation, one will find that the two lists are identical with one
single exception: the Beer Tax, an Excise Tax, will be admin istered by
federal authorities although its yields accrue to the States.

The organization of these authorities, and the administrative procedures,
to be applied by them shall be regulated by Federal legislation. The
heads of the federal finance authorities at medium level (as opposed to
higher and lower level) can be appointed, however, by the Federal Govern-
ment only with the consent of the State Governments.

The Federation may delegate the administration of Non-Recurrent, Special
Purpose Property Taxes to State finance authorities which, then, are con-
sidered to administer them "on behalf of the Federation".

As pointed out on p. 7 the Assessed Income and the Corporation Taxes, while
in principle accruing to the States, may, nevertheless, on the basis of a
future federal law, be claimed, in part, by the Federation.

With this in mind Art. 108, par. 2 provides as follows:

"To the extent that the Federation has a claim to the yields of
the Assessed Income and Corporation Taxes it shall have the right
to administer them".

Thus, even if the Federation can claim, one day, parts of the yields of the
aforementioned two taxes, it could only administer them "to the extent" of
such claim. That precisely that might mean in practice, is difficult to
foretell. Art. 108, par. 2 expressly authorizes the Federation to delegate
to State authorities its eventual right to administer, in part, the two
taxes in question. In so far, however, as the State Finance authorities

9

then, act under powers delegated to them, they will be considered to administer the two taxes "on behalf of" the Federation".

### Taxes administered by the States (Art. 108, par. 3)

All other taxes i.e. all those not administered wholly or in part by federal Finance authorities, will be administered by State Finance authorities.

The Federation, however, may - by federal legislation requiring APPROVAL of the Federal Council - regulate the organization of these authorities, the procedures to be applied by them, and the uniform training of their personnel. The heads of the top and medium level State Finance authorities, moreover, can be appointed by the States only with the consent of the Federal Government.

The States are authorized to leave to the communities (tomás, villages), wholly or in part, the administration of taxes the yields of which, under State law, accrue to the communities.

### Taxes administered by the States on behalf of the Federation (Art. 108, par. 4)

"There the States administer taxes, accruing to the Federation, "on behalf of the Federation" (see above), the States shall be liable with their own revenues for an orderly administration of such taxes. The Federal Minister of Finance in these cases has rights of supervision which he does not have where the States administer taxes the yields of which accrue directly to them. He can, in particular, supervise and ensure an "orderly administration" through federal commissioners who are entitled to give direct orders and instructions to State finance authorities at medium and lower level.

### General Administrative Regulations (Art. 108, paras. 5 and 6)

Overall Administrative Regulations of a general character may be issued in the field of financial Administration by the Federal Government (Chancellor plus Federal Ministers). Insofar, however, as these Regulations would apply to State finance authorities, they require APPROVAL by the Federal Council.

The organization of Administrative Courts, having jurisdiction on financial matters, and the procedures to be followed by such Courts shall be regulated by federal law (express approval of the Federal Council not being required).

10

THE NEW GERMAN CONSTITUTION

1. Three Charts designed to show in some detail

I. The Organization of the Federal Government at Top Level

II. The Role of the Supreme Federal Organs in the Legislative Field

III. The Role of the Supreme Federal Organs in the Executive Field

These three Charts do not show the Legislative and Executive Functions of the Federation in the Field of Finances. The provisions of the Basic Law on Finance are particularly complex and difficult to understand, they have been explained therefore in a Special Study.

2. Special Memos on

A. Significance of Term "Basic Law"

B. Territory to which Basic Law applies

C. Basic Structure of New German State

D. Civil Rights

E. The organization of the Executive Branch of Federal Government (supplements Chart I, column 2)

F. Division of Legislative Powers between Federation and States

July 17, 1967

Prof. Dr. C. F. Frhr. Von Weizsacker
Universitat Hamburg
Philosophisches Seminar
Von-Melle-Park 6
Hamburg 13

Dear Professor Von Weizsacker:

I am taking the liberty of introducing to you a very good friend of mine, Dr. Fritz Kraemer who will be spending two months in Germany to gain an impression of the current German scene.

Dr. Kraemer holds a senior position in the Department of the Army, from which he is on a year's leave to do research at the Johns Hopkins Center for Advanced International Studies. He was born in Germany and left in the thirties because of his opposition to the existing regime. His political views are somewhat conservative and his manner a little flamboyant, but he is one of the most intelligent and thoughtful people I know. I know he would gain a great deal from talking to you.

He can be reached c/o Dr. Herbert Peipers, 53 Bonn, Humboldstr. 24.

Best regards.

Henry A. Krausder

Sincerely yours,

Best regards.

He can be reached c/o Dr. Herbert Peiberg, 53 Bou, Hampeldstr. 24.

gain a great deal from talking to you.
the most intelligent and thoughtful people I know. I know he would
conservative and his manner a little flampoyant, but he is one of
to the existing regime. His political views are somewhat
born in Germany and left in the thrifty because of his opposition
John Hopkins Center for Advanced International Studies. He was
Army, from which he is on a year's leave to do research at the
Dr. Kraemer holds a senior position in the Department of the
Germany to gain an impression of the current German scene.
mine. Dr. Fritz Kraemer who will be abending two months in
I am taking the liberty of introducing to you a very good friend of

Dear Professor Von Weiszacker:

Hampurg 13
Vou-Melle-Park 6
Philosophisches Seminar
Universität Hampurg
Prof. Dr. C. F. Fruh. Von Weiszacker

July 14, 1967

Henry V. Klaasen

Sincerely yours,

With warm regards,

own mind.

Perhaps you would like to meet Krämer first and make up your mind.

meeting? You might tell Meiner that I would appreciate it. I
respect more than Meiner. Do you think you could arrange such a
German political scene. There is' of course, no one whom I
ested in obtaining an understanding of the deeper trends in the
intelligent and thoughtful people I know. He is particularly inter-
and his manner a little flippant, but he is one of the most
existing regime. His political views are somewhat conservative
in Germany and left in the thirties because of his opposition to the
Hopkins Center for Advanced International Studies. He was born
from which he is an year's leave to do research at the John
Dr. Krämer holds a senior position in the Department of the Army,
Germany to gain an impression of the current German scene.
mine. Dr. Fritz Krämer, who will be absent two months in
I am taking the liberty of introducing to you a very good friend of

My dear Jürgen:

Germanturtsraße 60
Bad Godesberd
Mr. Jürgen Weichert

July 14, 1967

Henry V. Klauder

Bicercely honne,

With warm redsda.

It has been much too loud since I last saw you.

He can be resorted to. Herbert Peiberg, 53 Boun, Humboldtstr. 54.

thought that you could be helpful to him.
He is particularly interested in meeting German writers and I
know. He is particularly interested in meeting German writers and I
flamboyant, but he is one of the most intelligent and thoughtful people
His political views are somewhat conservative and his manner a little
and left in the thirties because of his opposition to the existing regime.
Center for Advanced International Studies. He was born in Germany
from which he is on a years leave to do research at the John Hopkins
Dr. Kraemer holds a senior position in the Department of the Army.

His own impression of the current German scene.

Dr. Fritz Kraemer, who will be abending two months in Germany to
I am taking the liberty of introducing to you a very good friend of mine.

My dear Herrmann:

8 Munich 13
Admeastrasse 48
Mr. Hans Edouard Hoffmann

July 17, 1967

July 17, 1967

Mr. Siegfried Unseld
Suhrkamp Verlag
Gruneburgweg 69
6 Frankfurt Am Main

Dear Siegfried:

I am taking the liberty of introducing to you a very good friend of
mine, Dr. Fritz Kraemer, who will be spending two months in
Germany to gain an impression of the current German scene.

Dr. Kraemer holds a senior position in the Department of the
Army, from which he is on a year's leave to do research at the
John Hopkins Center for Advanced International Studies. He was
born in Germany and left in the thirties because of his opposition
to the existing regime. His political views are somewhat conser-
vative and his manner a little flamboyant, but he is one of the most i
intelligent and thoughtful people I know. He is particularly interested
in meeting German writers and I thought what you could be helpful
to him.

He can be reached c/o Dr. Herbert Peipers, 53 Bonn, Hummboldstr. 24.

It has been much too long since I last saw you.

With warm regards.

JUL 27. 1967.

SV

Suhrkamp Verlag

am 25. Juli 1967

Lieber Henry,

schönsten Dank für Deinen Brief vom 17. Juli. Ich schreibe
an Herrn Dr. Kraemer und werde versuchen, ihn mit Schrift-
stellern zusammenzubringen.

In diesen Tagen wird wieder ein Seminarkurs laufen, ich wünsche ihm einen guten Verlauf.

Wann kommst Du nach Europa? Vielleicht werde ich im Spät-
herbst oder im April nach Amerika kommen.

Herzliche Grüsse

Dein

6 Frankfurt am Main, Grüneburgweg 69, Postschließfach 2446. Telefon 720881. Telex 413972. Telegramme Suhrkampverlag Frankfurtmain. Konten: Deutsche Bank Frankfurt am Main 95/7100. Postscheck Frankfurt am Main 115761

Château de Muzot, Veyras sur Sierre, Valais,

den 25. Juli 67.

JUL 28 1967

Mein Lieber,

vielen Dank für Ihre Nachricht vom 17. Juli. Ich bin gerne
bereit, Ihren Freund Kraemer kennen zu lernen und ihm behilflich
zu sein, auch andere Leute, die ihn interessieren könnten, kennen
zu lernen. Ich muss hinzufügen, dass ich im Augenblick nicht in Mün-
chen bin und erst gegen den 10. August dorthin zurückkehren werde.
(Ich werde ihm eine Zeile nach Bonn schicken.) Am 5. September flie-
ge ich nach Montreal, um an einer World Poetry Conference teilzuneh-
men, am 15. September werde ich für ein Semester in Bloomington,
Indiana, sein (bis Ende Januar 1968). Vielleicht ergibt sich dann
auch eine Chance, Sie zu treffen?

Muzot: erinnern Sie sich? Sie waren im Sommer 1955 (im Juni, glaube ich) einen Abend hier zu Gast (von Rom kommend), wir sassen auf der Terrasse und tranken Pinot Noir...

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