The Federal Republic of Germany has concluded friendship, trade and settlement agreements with numerous countries. The aim of these international treaties, which contain so-called benevolent and most-favoured-nation clauses, is to favour nationals of one of the contracting states over other foreigners. It is often assumed that such treaties grant their nationals special privileges when entering or staying in Germany. But what is the actual legal situation?
Do international treaties include privileges for entry?
In particular, the question of whether existing friendship, trade and establishment agreements confer privileges under immigration law with regard to the Entry, the Residence permit or the Protection from deportation is repeatedly the subject of court decisions. According to current law and case law (as at November 2025), it can be stated that such international agreements are generally no claims beyond the national right of residence mediate. Rather, they merely oblige the contracting states to apply their existing laws favourably, without amending them.
Courts already shed light on these issues in the 1990s. For example, the Hessian Administrative Court (VGH) in a decision dated 24 March 1998 (Ref. 13 TZ 1048/98) that Art. II No. 5 of the Treaty of Friendship, Commerce and Navigation between the Federal Republic of Germany and the United States of America (in short FHSV D-USA) did not grant any protection against deportation that went beyond the provisions of the Aliens Act at the time. Accordingly, a US citizen could not successfully invoke the treaty in deportation proceedings - the national regulations took precedence.
VG Wiesbaden: Most-favoured-nation clause blocks enforceability of a refusal
Shortly beforehand, Anders had Wiesbaden Administrative Court in the first instance. In its decision of 23 March 1998 (case no. 4 G 1137/97), it took the view that the most favoured nation clause in Art. 3 para. 3 sentence 3 FHSV D-USA prevented the immediate enforceability of § 72 para. 1 AuslG (at that time the regulation according to which objections and legal action against the rejection of an application for the granting or extension of a residence permit had no suspensive effect). cancels out. The court reasoned that nationals of one contracting party should not be treated less favourably than nationals of a third country. The Wiesbaden Administrative Court used citizens of the European Union as a standard of comparison. For EU nationals, both under Community law at the time (Section 12 (9) Residence Act/EEC old version) and under the EU's freedom of movement regulations, the rejection of an application for residence not was immediately enforceable - their appeal therefore had suspensive effect. Following the logic of the Wiesbaden Administrative Court, this should also apply to US citizens due to the most favoured nation clause.
Supreme Court clarification: No automatic equality with EU citizens
However, the opinion of the VG Wiesbaden remained do not last long. Subsequently, higher courts have significantly corrected this view. As early as 2002 and 2004, the Hessian Administrative Court clarified in various rulings that US citizens are not successfully invoke the most favoured nation clause of the bilateral treaty in order to obtain procedural rights such as the suspensive effect of an appeal. The treaty with the USA cannot simply transfer benefits to which EU citizens are entitled under EU law to US citizens. In other words: Rights based on the free movement of persons within the EU are not covered by the most favoured nation clause of such bilateral treaties, as these clauses only cover benefits that a state grants to other third-country nationals on the basis of its own sovereignty. However, benefits that are granted on the basis of obligations in supranational communities (such as the EU) do not have to be granted to contracting states of a friendship treaty. The national regulations - now enshrined in the Residence Act (AufenthG) - retain unrestricted priority in these areas.
Specifically, this means: Even under current law, Section 84 (1) AufenthG stipulates that objections and legal action against the rejection of an application for the issue or extension of a residence permit must be lodged in writing. No suspensive effect have. This rule generally applies to third-country nationals, and the US-German Friendship Treaty does not change this. US citizens - just like other non-EU foreigners - must apply to the courts for urgent legal protection if their visa application is rejected, instead of invoking the treaty.
Hessian Administrative Court 2009: Priority check also necessary for US citizens
Another interesting decision concerned the question of whether US-Americans are privileged when it comes to labour market admission. In its decision of 28 October 2009 (case no. 9 A 2134/08), the Hessian VGH The following case: The plaintiff, an American citizen, already held a residence permit for gainful employment in accordance with Section 18 AufenthG. He wanted to change jobs and applied for a new residence permit. This was refused by the foreigners authority because the Federal Employment Agency refused to give the necessary approval - there were preferential employees (e.g. Germans or EU citizens) available for the new job, so that the so-called Priority check in accordance with Section 39 (2) sentence 1 no. 1b AufenthG was negative.
The plaintiff argued that as a US citizen he was subject to the protection of the German-American Treaty of Amity, Commerce and Navigation. Both the Most favoured nation principle as well as the National treatment clause (equal treatment with nationals) in this contract should mean that the approval of the Federal Employment Agency was not required or was wrongly refused. In his opinion, he should therefore either have been treated like an EU citizen (who is not subject to a priority check) or even like a German, so that no labour market check should take place at all.
However, the Hessian Administrative Court did not follow this reasoning. It clarified that a US citizen not exempted from the approval requirement of § 39 AufenthG not even in the light of the FHSV D-USA. Neither the most-favoured-nation principle nor the principle of equal treatment of nationals can lead to a better status under residence law of US citizens vis-à-vis other third-country nationals. In particular the contract does not exempt from the priority check on the German labour market.
International treaties do not provide better treatment
In its reasoning, the VGH stated that the Administrative Court had rightly referred to Art. II para. 1 FHSV D-USA. This states that the nationals of the other party to the agreement may enter the territory of the other party. „only in accordance with the laws on the entry and residence of foreigners“ enter, travel freely within and reside in places of their choice. The contracting parties have thus granted their nationals a right, that a decision on an application for a residence permit is made in accordance with the applicable law. At the same time, however, they have expressly stipulated that the respective national residence law remains fully applicable. This reservation applies without restriction to all provisions, which regulate the entry and residence of foreigners - this includes both formal procedural law (e.g. visa procedures, procedural deadlines) and substantive legal requirements (e.g. proof of livelihood, access to the labour market, security checks).
Neither the above-mentioned treaty provision nor the other content of the FHSV D-USA indicates that the national right of residence for nationals of the other contracting state amended or cancelled was to be changed. On the contrary: the contracting parties have deliberately reserved the right to continue to apply their laws on foreign nationals. The additional protocol to this agreement also contains no indication of an intended Better position of the respective nationals. Although there are references in the protocol to the „most liberal possible application“ of the work permit regulations, this is merely an appeal to interpret the existing national rules favourably and generously. Such a benevolent clause is to be understood as Discretionary control to be understood: The authorities should tend in favour of the applicant when making a decision, as far as the discretion allows this. Not This means that mandatory legal requirements - such as the priority review or other expressly standardised requirements - may be disregarded.
This view of the Hessian Administrative Court is in line with higher court rulings in Germany as a whole. For example, the Administrative Court of Baden-Württemberg argued similarly in a decision of 31 October 2006 (Ref. 13 S 1943/06). The Rhineland-Palatinate Higher Administrative Court (Koblenz) expressly stated in a decision dated 4 June 2007 (case no. 7 B 10282/07) that neither the call for liberal application of the law enshrined in the treaty nor the equal treatment clauses preclude the application of § 39 of the Residence Act and other provisions on foreigners.
OVG Lower Saxony 2010: No right of residence under the friendship treaty
This line of jurisprudence was consistently continued in the following decade. An important current milestone is the decision of the Higher Administrative Court of Lower Saxony of 26 March 2010 (Ref. 11 ME 33/10). In this judgement, the court confirmed that the German-American friendship treaty does not give rise to a right to a residence permit for employment without a priority check or a right to a residence permit for self-employment without proof of sufficient investment capital. In plain language: US citizens must also fulfil the general requirements of the Residence Act - the contract does not spare them the labour market check for a desired employment or the other conditions (such as proof of capital and economic interest) for a planned self-employed activity.
The Higher Administrative Court of Lower Saxony based its decision on the aforementioned judgements and rulings from Hesse, Baden-Württemberg and Rhineland-Palatinate, as well as on a ruling by the Federal Administrative Court from 2009. actual practice of both contracting states For decades, it has been the case that nationals of the other country are subject to a regular work permit requirement with a priority check. There was no deviating practice that could indicate a mutual waiver of such requirements. This emphasises that the contracting parties themselves never understood their treaty as an instrument to override national immigration regulations.
To summarise, it is clear from today's perspective: Bilateral friendship, trade and settlement agreements do not confer any special rights to residence permits or entry. Although they grant foreigners from the respective contracting states the right to Fair and benevolent treatment according to the respective national law and protect against arbitrary discrimination against other foreigners. However, there is no automatic equalisation with EU citizens or nationals with regard to entry and residence requirements. All basic requirements of German immigration law - from visa requirements and financial proof to labour market checks - also apply in principle to nationals of these contracting states. Only in the context of official Discretionary the existence of such a contract can be taken into account in favour of the applicant, for example by the authority deciding more positively in cases of doubt („goodwill“). However, a legal claim to privileged treatment cannot be derived from the contracts.
Examples of existing agreements under international law
By way of classification, here are some of the important bilateral agreements of the Federal Republic of Germany that contain benevolent or most-favoured-nation clauses for nationals:
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Dominican Republic: Treaty of Friendship, Commerce and Navigation of 23 December 1957
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Indonesia: Trade agreement of 22 April 1953
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Iran (Persia): Establishment agreement dated 17 February 1929
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Japan: Trade and shipping contract dated 20 July 1927
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Philippines: Agreement on immigration and visa issues of 3 March 1964
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Sri Lanka (Ceylon): Minutes of 22 November 1972 on general questions relating to trade
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Switzerland: Establishment agreement dated 13 November 1909 (supplemented by minutes dated 19 December 1953)
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Turkey: Establishment agreement dated 12.01.1927
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USA: Treaty of Friendship, Commerce and Navigation of 29 October 1954
These agreements have evolved historically and in some cases have been in force for many decades. Nevertheless - as shown - in the light of the current legal situation and case law, their practical significance for the right of residence is minimal. The provisions of the German Residence Act and the associated ordinances always apply. The friendship treaties do not change these rules, but only impose an obligation to benevolent application.
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. The content of this article has been compiled to the best of our knowledge and current state of knowledge (as at November 2025). Due to the complexity and constant change of the subject matter, all information is provided without guarantee. No liability can be accepted for the accuracy of this information.
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