Are Americans Privileged for Residence Permits based on the Treaty on Friendship, Trade and Shipping?
Does the German-American Treaty on Friendship, Trade and Shipping of October 29, 1954 constitute privileges for Americans above other foreigners?
Sam with his wife and two minor children applied for a residence permit to indefinitely live in Germany. They claimed to be entitled to a work permit either for self-employment or employed profession solely based on this treaty. The Law of Nations and this treaty were to grant Americans a special and preferred consideration for any needed permission. The foreigners office denied them a permit and threatened to expel them.
They had no success in court whatsoever. Neither Sam nor his wife could receive a work permit because pursuant to §39 II AufenthG the Federal Labor Office was to grant or deny a permission. This office denied. The court held the Friendship Treaty does not grant any permissions to Americans. Whenever preferred persons are available for an intended job, they will come first. The treaty only says promises a "liberal" treatment of Americans in Germany - and vice versa. A liberal treatment is not an exemption.
This is also true for a self-employment pursuant to §21 AufenthG. Sam and his wife have no equity. The treaty has no differing regulation that exempts the need of funds to open and run a business in Germany. The Residence Act however requires starting capital. Sam argues that no. 2 cl. 2 of the Protocol to the Treaty demands liberal application of the law and therefore he is to be preferentially treated. The request for "liberal application" refers to the interpretation of national law when deciding whether to grant or not grant a work permit. Therefore, this provision only contains a rule in which direction discretion is to go but does not command disobey binding law of §39 II AufenthG. Art. 31 IIIb Vienna Convention on the Law of Contracts when Interpreting International Contracts does not prevent or even prohibit the preference testing of a foreign national to the domestic employment market.
Sam further argued that the Friendship Treaty prefers Americans because they are to be equally treated as domestic employees. When art. VII subsection 1 refers to equal treatment as if Sam were a German national, then he overlooks that such treatment requires the existence a residence and work permission and does not constitute such. In other words, this argumentation is illogical.
The court eventually held, Sam also had no grounds to be self-employed in Germany. He derives such claim from art. II subsection 1 cl. 2 b of the Treaty. However, this treaty requires that considerable equity is to be invested into one's German company. Since Sam's family is living off the welfare granted to asylum seeker, he does not have "considerable equity". This understanding of the treaty is also shared with the United States. When Germans want to have a permit to run their business in the U.S., they are expected to invest $ 150,000.
So what does the German-American Friendship Treaty mean in practice? It means that when the officer has discretion in granting certain permissions that an American is to be given one more chance. When his or her business plan is almost persuasive then the authorities have to decide in favor of the American but not when he does not hand in a business plan at all.