## Facts

- In 1933, Germany concluded the Reich Concordat with the Holy See, including provisions on Catholic religious instruction and denominational schools.
- The Concordat was validly concluded under international law and transformed into domestic law; it continued in force after 1945 and under the Basic Law unless terminated.
- In 1954, Lower Saxony enacted a public schools statute restructuring education on a non-denominational basis, departing from the Concordat’s school-related commitments.
- The Federal Government filed a Federation–Länder constitutional dispute against Lower Saxony, asserting the Land’s statute frustrated performance of a binding treaty and violated an unwritten constitutional duty of federal comity (*Bundestreue*).
- Lower Saxony, joined by Hesse and Bremen, argued the case was inadmissible and that education is within exclusive Länder competence, so the Federation could not enforce the treaty’s school provisions through constitutional litigation.

## Issues

1. Whether the court could decide, as a preliminary matter in a Federation–Länder dispute, the domestic validity and effect of an international treaty.
2. Whether the Reich Concordat remained valid in domestic law after 1945 and under the Basic Law.
3. Whether Article 123(2) of the Basic Law constitutionally bound the Länder to the Concordat’s school provisions, barring contrary Land legislation.
4. Whether *Bundestreue* imposed an enforceable constitutional duty on the Länder to legislate consistently with the Concordat’s school provisions.
5. Whether the Federal Government had to involve the Bundesrat before initiating the constitutional dispute.

## Decision

- The court held it could assess the treaty’s validity and effect within domestic law as a preliminary issue, while not adjudicating treaty validity between contracting parties.
- The court recognized the Reich Concordat’s continued validity as treaty and as transformed domestic law.
- The court held Article 123(2) did not constitutionally bind Länder legislation to the Concordat’s school provisions; those provisions continued only as ordinary law while still in force.
- The court rejected the claim that *Bundestreue* created an enforceable duty requiring a Land, in an area of exclusive Land competence, to legislate in conformity with specific treaty school provisions.
- The court found the proceeding admissible and held Bundesrat involvement was not a universal prerequisite for bringing such a dispute.
- The court denied the Federal Government’s requested finding that Lower Saxony violated constitutional duties by enacting the 1954 school statute.

## Legal Principles

- A constitutional court may determine an international treaty’s domestic validity and legal effect as a preliminary question in constitutional litigation, even if it cannot decide the treaty’s validity between states.
- Pre-constitutional treaty-derived rules may continue in domestic law after a constitutional transition, absent termination, but their domestic rank and effects depend on the constitution.
- A continuity clause for prior law (here, Article 123(2)) preserves pre-existing rules as ordinary law where applicable; it does not transform them into constitutional limits on legislative competence.
- Education and cultural affairs may remain within exclusive subnational legislative competence; federal treaty-making does not, by itself, create justiciable mandates overriding that allocation.
- Unwritten constitutional duties (including *Bundestreue*) can be asserted in a Federation–Länder dispute, but they do not automatically yield specific, court-enforceable legislative commands in areas of exclusive Land competence.
- Resort to the Bundesrat is not always required before initiating a Federation–Länder constitutional dispute; the necessity depends on the type of alleged violation.

## Conclusion

The court recognized the Reich Concordat’s continued domestic validity but refused to treat its school provisions as constitutionally binding on Länder legislation under Article 123(2) or *Bundestreue*, thereby preserving Länder autonomy over schooling against enforcement efforts by the Federal Government in this dispute.


Bundesregierung v. Land Niedersachsen (Concordat Case), 6 BVerfGE 309 (Ger. 1957)