Resistance to European Law and Constitutional Identity in Germany: Herbert Kraus and Solange in its Intellectual Context

• Date: 01 July 2015
• Published date: 01 July 2015
• DOI: http://doi.org/10.1111/eulj.12141
• Author: Bill Davies

Resistance to European Law and

Constitutional Identity in Germany:

Herbert Kraus and Solange in its

Intellectual Context

Bill Davies*

Abstract: This article recasts our understanding of the Federal Constitutional Court’s

Solange decision by tracing its lineage within the domestic context and as part of a

new history of EU law. The external dynamic of the decision, a moment of judicial

discourse between two of Europe’s highest panels, has been the focus of many studies.

Much rarer are attempts to embed the decision within its internal context: the struggle

within the German legal academy to accept the primacy of EU law. Central to this

contextualisation is the reinvigoration of the ‘structural congruence’ theory of Herbert

Kraus, which long shaped the German reception of EU law. This article recounts Kraus’

theory, tracing the struggle for the German legal consciousness between three positions:

constitutionalists, traditionalists, and the congruence advocates. While Hallstein’s con-

stitutionalism is most closely associated with Germany’s early Europhilia, even he admit-

ted by 1975 that Kraus had won the day.

‘A constitutional diktat’.1‘An aggressive . . . direct attack not only on supranational

supremacy but also, in some sense, on its legitimacy’.2‘Deceptive, superf‌icial and

legally erroneous’.3A reassertion of the Federal Constitutional Court’s (FCC) ‘ulti-

mate authority’.4The German FCC’s Solange decision of 19745has aroused some of

the strongest opinions on any matter in the history of EU law. The FCC was ruling

on a case already decided by the European Court of Justice (ECJ),6and so much

subsequent scholarship has focused on the external dimension of the decision, as a

* Associate Professor, Dept. of Justice, Law and Criminology, American University.

1G. Martinico and O. Pollicino, The Interaction between Europe’s Legal Systems. Judicial Dialogue and

the Creation of Supranational Laws (Edward Elgar, 2012) 76.

2P. Lindseth, Power and Legitimacy: Reconciling Europe and the Nation State (Oxford University Press,

2010) 159.

3H.P. Ipsen, BVerfG v. EuGH re ‘Grundrechte’. ‘Zum Beschluß des Zweiten Senats des

Bundesverfassungsgerichts vom 29 Mai 1974’, (1975) 10 Europarecht 1.

4K. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in

Europe (Oxford University Press, 2001) 94.

5BVerfGE 37, 271 Solange decision of 29 May 1974.

6The ECJ’s ruling Case 11/70, Internationale Handelsgesellschaft v. Einfuhr- und Vorratsstelle für

Getriede und Futtermittel [1970] ECR 1125.

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moment of ‘bad tempered inter-jurisdictional’7dialogue between two of Europe’s

highest judicial panels. This was, after all, one of the f‌irst and most high-prof‌ile

examples of a national court placing clear limits on the acceptance of the ECJ’s

aspirational constitutional jurisprudence of the previous decade.8

Far fewer attempts have been made to fully embed the decision in the internal

discussions had within Germany about the primacy of European law and its conse-

quences for the German legal order.9There appears to be suff‌icient evidence to

warrant a more detailed revisiting of the forces informing and driving the judges

choices in this case. The Solange ruling saw one of the court’s very earliest dissenting

opinions, with the FCC strongly polarised in a 5-3 vote. The lines drawn in the court

cut across traditional political boundaries: the court in 1974 was f‌inely balanced

between four conservative judges (Geiger, Wand, Rinck, Schlabrendorff), two social

democrats (Seuffert, Hirsch) and two liberals (Rupp, Rottman). The three dissenting

judges came equally from these groups (Wand, Hirsch and Rupp).10 The FCC was

renowned by some for its sensitivity to academic discourse and has a tendency to wait

on major pronouncements for an academic consensus to emerge on the issue, even if

this reputation is under threat in more recent times.11 Clearly there was a struggle

within Germany about the nature of EU law and its relationship to the nature

constitutional order that was affecting judicial behaviour in this case.

By employing a historical methodology, this article will retrace the struggle for the

German legal consciousness on EU law, painting a divided FCC trying to make sense

and articulate a maelstrom of competing views prevalent in mid-1970s Germany.

Three perspectives on the relationship between European and national legal orders

emerged remarkably rapidly (predating even the activation of the European Coal and

Steel Community (ECSC)) and forcefully: a constitutionalist view that saw the Trea-

ties as a new constitutional home for Germany; a traditionalist view that regarded the

new Communities as a complex but ultimately standard part of international law; and

7M. Everson, ‘An Exercise in Legal Honesty: Re-writing the Court of Justice and

Bundesverfassungsgericht’, (2015) 21 European Law Journal 474–499.

8In particular, Case 26/62, Van Gend v. Nederlandse Administratie der Belastingen [1963] ECR 1; and

Case 06/64, Costa v. ENEL [1964] ECR 585. Phelan makes the interesting case for the addition of Cases

90&91/63, Commission v. Luxembourg and Belgium [1964] ECR 625 to these foundational cases in

Phelan, Will, 2014, ‘The Troika: The Interlocking Roles of Commission v. Luxembourg and Belgium,

Van Gend en Loos and Costa v. ENEL in the Creation of the European Legal Order’, (2015) 21

European Law Journal 116.

9Even the most thorough handling of the European ‘version’ of this case does not attempt to cover what

was really driving the German response in the domestic ruling. See the four essays on the ECJ’s

Internationale Handelsgesellschaft ruling in M. Maduro and L. Azolai, The Past and Future of EU Law:

The Classics of EU Law Revisited on the 50th Anniversary of Rome (Hart Publishing, 2009). Alter, above

n 4, made an excellent preliminary attempt at greater historicisation of the decision, inspiring the more

detailed narrative in B. Davies, Resisting the European Court of Justice: Germany’s Confrontation with

European Law 1949–1979 (Cambridge University Press, 2012), which this article moves beyond. See also

D.H. Scheuing, ‘The Approach to European Law in German Jurisprudence’, (2004) 5 German Law

Journal 703–719. A.K. Mangold, Gemeinschaftsrecht und deutsches Recht. Die Europäisierung der

deutschen Rechtsordnung in historisch-empirischer Sicht (Mohr Siebeck, 2011).

10 An analysis of generational and geographical factors equally shows no discernible pattern in voting.

11 For the early assessment, see C.J. Mann, The Function of Judicial Decision in European Economic

Integration (Martinus Nijhoff Publishers, 1972) 184, 420–1. For a more recent critical appraisal,

B. Schlink, Die Entthronung der Staatsrechtslehre durch die Verfassungsgerichtsbarkeit (1989) 28 Der

Staat 161, and the chapters in Möllers et al., Das entgrenzte Gericht—Eine kritische Bilanz nach sechzig

Jahren Bundesverfassungsgericht (Suhrkamp, 2011).

July 2015 Germany, Europe and Solange

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