Solange I and II: EU Law and German Constitutional Identity
The Solange decisions of the German Federal Constitutional Court are among the most important constitutional judgments in European Union law. Solange I (1974) and Solange II (1986) established the conditions under which the Court would review EU measures against the standards of the Grundgesetz. These decisions shaped the relationship between EU law and national constitutional law and influenced the development of fundamental rights protection at the European level.
The Context
The case arose from a constitutional complaint against EEC regulations concerning export security deposits. The complainant, a German company, argued that the requirement to provide security deposits for export licences violated its fundamental rights under the Grundgesetz, particularly the freedom of occupation under Article 12 GG and the right to property under Article 14 GG. The question was whether the Constitutional Court could review secondary EU law against national constitutional standards, given the European Court of Justice’s claim of supremacy for Community law.
Solange I (1974)
In Solange I, the Court held that, so long as the European Community lacked a codified catalogue of fundamental rights comparable to that of the Grundgesetz and a democratic parliament with legislative competences, the Constitutional Court would review Community measures for compliance with the Grundgesetz. The Court acknowledged the primacy of Community law but asserted a residual jurisdiction to protect fundamental rights. This assertion challenged the absolute supremacy of Community law as claimed by the European Court of Justice in the Costa v ENEL case (1964) and created a potential conflict between the two courts.
Solange II (1986)
In Solange II, the Court reversed its position, holding that the European Court of Justice had developed an adequate standard of fundamental rights protection, particularly through its jurisprudence in cases such as Stauder (1969), Internationale Handelsgesellschaft (1970), and Nold (1974). The Court declared that, so long as EU law provided generally effective protection of fundamental rights comparable to the Grundgesetz, the Constitutional Court would no longer exercise its review jurisdiction. This decision resolved the potential jurisdictional conflict and established a relationship of cooperation between the two courts.
The Impact on European Fundamental Rights Development
The Solange decisions significantly influenced the development of fundamental rights protection in EU law. The threat of national constitutional court review spurred the European Court of Justice to develop its fundamental rights jurisprudence more rapidly than it might otherwise have done. The ECJ responded to Solange I by expanding its protection of 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 adoption of the EU Charter of Fundamental Rights in 2000 and its acquisition of binding legal force with the Lisbon Treaty in 2009 can be seen as the culmination of this process. The Solange II decision acknowledged that EU fundamental rights protection had reached a level comparable to that of the Grundgesetz, establishing a relationship of mutual trust between the two courts that has largely been maintained despite recent tensions. The Solange approach has been influential beyond Germany: constitutional courts in Italy, Poland, and the Czech Republic have adopted similar doctrines of conditional deference to EU fundamental rights protection, demonstrating the broader European significance of the German model.
The Honeywell Decision and the Right to Ultra Vires Review
In the Honeywell decision (2010), the Constitutional Court refined the ultra vires doctrine, holding that it would declare EU acts ultra vires only where the excess of competence was manifest and structurally significant. The Court emphasised that review must be exercised with restraint and in a manner open to European integration, giving priority to the preliminary reference procedure under Article 267 TFEU. The Honeywell decision clarified that the Constitutional Court would not lightly find an ultra vires act and would generally defer to the European Court of Justice’s interpretation of EU competences. This approach represents a balance between the Court’s residual constitutional role and its commitment to European integration, requiring a clear and serious breach of the competence limits before the Constitutional Court would intervene.
Subsequent Development
The Maastricht judgment (1993) introduced ultra vires review: the Constitutional Court would examine whether EU institutions acted within the limits of their conferred powers. The Lisbon judgment (2009) developed identity review (Identitätskontrolle): the Court would examine whether EU measures violate German constitutional identity as protected by Article 79(3) GG. The PSPP judgment (2020) applied the ultra vires framework for the first time, finding that the European Central Bank’s Public Sector Purchase Programme exceeded its mandate. These developments show the continuing evolution of the relationship between EU law and the German constitution, with the Constitutional Court maintaining its residual role as guardian of constitutional fundamentals while generally deferring to the European Court of Justice in the ordinary application of EU law.