As long as I
In 1974 , in the Solange I decision , the Federal Constitutional Court first established criteria according to which proceedings regarding contradictions between legal norms of the European Communities (EC) and German constitutional law are assessed. As a result, the Federal Constitutional Court reserved the right to check the compatibility of European and German law in each individual case.
The procedure
In 1974 the Federal Constitutional Court passed the so-called Solange I decision (BVerfGE 37, 271 ff.). The reason was the submission of a court in a specific norm review procedure . That court held an EC regulation inapplicable because it violated the fundamental rights of the Basic Law. The European Court of Justice (ECJ) had previously confirmed the validity of the regulation on presentation of the court pursuant to Article 177 of the EC Treaty .
The Federal Constitutional Court affirmed the admissibility, although according to Art. 100 GG only German, formal, post-constitutional laws can be examined. The reason given was that Community law makes no distinction between formal laws and ordinances (Art. 80 GG). Ordinances work in the same way as formal laws. The problem of the German law was solved with the exercise of the provisions. The Federal Constitutional Court pointed out that the German state authority had to carry out the Community ordinances and was also bound by the fundamental rights (cf. Art. 1, Para. 3 GG).
The concentration of this review on the Federal Constitutional Court is required according to the basic idea of Art. 100 GG and is also in the interest of the community and its law.
Constitutional aspects
It was stated by the Federal Constitutional Court that it could not decide on the validity or invalidity of secondary Community law, because the ECJ alone has this power. However, it can decide whether a Community legal act may not be applied by the German authorities and courts and has no effect in the German legal area if it conflicts with German fundamental rights (priority of application, but not validity). A prerequisite, however, is a prior submission to the ECJ according to Art. 267 TFEU (Art. 234 EC).
Due to the transfer of sovereign rights according to Article 24.1 of the Basic Law, Community law must have its own catalog of fundamental rights corresponding to the fundamental rights, so that there is a reliable guarantee that the rights of the individual are observed or protected.
"As long as the integration process of the community has not progressed so far that Community law also contains a catalog of fundamental rights that has been adopted by a parliament and is in force and that is in line with the catalog of fundamental rights of the Basic Law, after obtaining the decision of the ECJ required in Art. 234 EC The submission of a court of the Federal Republic of Germany to the BVerfG in the norms control procedure is permissible and required if the court considers the provision of Community law relevant to the decision in the interpretation given by the ECJ to be inapplicable because and to the extent that it conflicts with one of the fundamental rights of the Basic Law. "
According to the case law of the Federal Constitutional Court, the priority of secondary community law found its limits in the basic rights of the Basic Law.
However, the case law later changed in the course of the Solange II decision .
