The Solange Decisions: German Constitutional Identity and EU Law
The Solange decisions of the German Federal Constitutional Court (Bundesverfassungsgericht) are foundational judgments in the constitutional architecture of the European Union. Solange I (1974, BVerfGE 37, 271) and Solange II (1986, BVerfGE 73, 339) established the conditions under which the German Court would review European Community law against the fundamental rights standards of the Grundgesetz. These decisions shaped the relationship between national constitutional law and supranational law, influenced the development of EU fundamental rights protection, and established a framework for constitutional dialogue between national courts and the European Court of Justice.
The Genesis of the Conflict
The Solange cases arose against the backdrop of the European Court of Justice’s assertion of the supremacy of Community law. In Costa v ENEL (1964), the ECJ held that Community law could not be overridden by national constitutional provisions. In Internationale Handelsgesellschaft (1970), the ECJ confirmed that the validity of Community measures could be judged only by Community law itself, not by national constitutional law. These assertions created a potential conflict between the absolute supremacy of Community law and the German Basic Law’s claim to protect fundamental rights as the supreme legal order.
In Solange I, the complainant was a German company challenging the requirement under EEC regulations to provide security deposits for export licences under the common agricultural policy. The company argued that the deposit requirement violated its fundamental rights under the Grundgesetz, particularly the freedom of occupation (Article 12 GG) and the right to property (Article 14 GG). The case required the Constitutional Court to determine whether it could review secondary Community law against German constitutional standards.
Solange I (1974): Conditional Review
In its Solange I decision of 29 May 1974, the Federal Constitutional Court held that, so long as (solange) the European Community lacked a codified catalogue of fundamental rights comparable to that of the Grundgesetz and a democratically elected parliament with legislative competences, the Constitutional Court would review Community measures for compliance with German fundamental rights. The Court acknowledged the primacy of Community law but asserted a residual jurisdiction to protect fundamental rights where Community law did not provide equivalent protection.
The Court’s reasoning was rooted in the constitutional structure of the Grundgesetz. The Court held that the Community was not a state but a supranational organization deriving its authority from the member states. Germany’s ratification of the EEC Treaty could not deprive German citizens of the fundamental rights guaranteed by the Constitution. The Court’s jurisdiction over Community measures was therefore not excluded by Article 24 GG, which authorized the transfer of sovereign powers to international organizations, because this provision did not authorize the transfer of the constitutional identity of the Federal Republic. The decision created a potential jurisdictional conflict between Karlsruhe and Luxembourg, but the Court expressed the hope that the ECJ would develop adequate fundamental rights protection.
Solange II (1986): Conditional Deference
In its Solange II decision of 22 October 1986, the Federal Constitutional Court reassessed the state of fundamental rights protection in Community law. The Court conducted a detailed analysis of the ECJ’s fundamental rights jurisprudence since Solange I, examining decisions such as Stauder (1969), Internationale Handelsgesellschaft (1970), Nold (1974), and Rutili (1975). The Court concluded that the ECJ had developed a standard of fundamental rights protection that was substantially comparable to that of the Grundgesetz.
The Court therefore reversed its position: so long as the European Community ensured effective protection of fundamental rights generally comparable to the protection afforded by the Grundgesetz, the Constitutional Court would no longer exercise its review jurisdiction over Community law. The burden of proof shifted — complainants would need to demonstrate that EU fundamental rights protection had fallen below the required standard, a burden that would be nearly impossible to meet. Solange II thus established a presumption of equivalent protection and resolved the potential jurisdictional conflict in favour of mutual deference.
The Doctrine of Equivalent Protection
The Solange II decision established the doctrine of equivalent protection (Grundrechtsschutz durch die Gemeinschaftsgerichte), later codified in the Constitutional Court’s Maastricht (1993) and Lisbon (2009) judgments. The doctrine does not require identical protection but rather a generally comparable standard. The Constitutional Court retains a residual jurisdiction to review EU acts where the general level of protection has fallen below the Grundgesetz standard, though the threshold is extremely high and has never been met.
The equivalent protection doctrine rests on mutual trust between the two courts. The Constitutional Court trusts the ECJ to protect fundamental rights adequately, and the ECJ trusts national courts to apply EU law faithfully within their spheres of competence. This relationship of cooperation has been largely maintained, despite occasional tensions in the Court’s subsequent jurisprudence.
The Impact on EU Constitutional Integration
The Solange decisions profoundly influenced the development of EU fundamental rights law. The implicit threat of national constitutional court review spurred the ECJ to expand its fundamental rights jurisprudence more rapidly than might otherwise have occurred. The ECJ responded to Solange I by developing fundamental rights as general principles of Community law, drawing on the common constitutional traditions of the member states and the European Convention on Human Rights. The Joint Declaration of 1977 by the European Parliament, the Council, and the Commission affirmed the importance of fundamental rights protection.
The Solange framework also shaped subsequent developments in EU constitutional law. The adoption of the EU Charter of Fundamental Rights in 2000, its proclamation of binding legal force by the Lisbon Treaty in 2009, and the planned accession of the EU to the ECHR (currently stalled following Opinion 2/13 of the ECJ) can all be understood as responses to the Solange imperative: the need for the EU to develop an autonomous and credible system of fundamental rights protection that satisfies national constitutional standards.
Solange and the Development of Constitutional Pluralism
Beyond its impact on EU law, the Solange doctrine has contributed to the development of constitutional pluralism in Europe. The decisions established that the relationship between national constitutional law and EU law is not a hierarchical relationship of supremacy but a heterarchical relationship of mutual recognition and cooperation. The Constitutional Court does not deny the primacy of EU law within its sphere of application but reserves the right to review EU acts against the irreducible minimum of German constitutional identity.
This pluralist framework has been adopted by constitutional courts across Europe. The Italian Constitutional Court, in its Frontini (1973) and Granital (1984) decisions, developed a similar doctrine of controlimiti (counter-limits). The Polish Constitutional Tribunal and the Czech Constitutional Court have also asserted residual jurisdiction to review EU acts against national constitutional standards. The Solange framework thus forms part of the common constitutional heritage of the European Union, defining the terms of engagement between national constitutional identities and the requirements of European integration.