The German Federal Constitutional Court as guardian of normative sovereignty in a complex European legal order.

The EU-legal order is a complex Legal order. Interactions and possible conflicts between its different components (EU-law in the strict sense, national constitutional law and the European Convention for the Protection of Human Rights and Fundamental Freedoms/ECHR) make up for the dynamic nature of the EU-legal order, characterized by the simultaneous validity of different, partly overlapping constitutions. Constitutional courtsare among the most important protagonists of this European constitutional theatre. They do not only act as judicial guardians of constitutional sovereignty in a purely internal context. In the complex European legal order, they often find themselves at the crossroads between the domestic legal order and the EU-legal order, exercising the difficult mandate to reconcile national constitutional demands (e.g. the Grundgesetz/Basic Law) and the principle of primacy of EU-law. Constitutional courts sometimes have to review national legislation assenting to new primary Treaty law, thus being placed at the centre of constitutional conflict. Furthermore, national constitutional courts are national courts against whose decisions there exists no remedy under national law. As such, article 267, 3 TFEU obliges them to refer questions for a preliminary ruling to the European Court of Justice (ECJ), should this obligation arise under the CILFIT and Foto-Frost conditions. The German Federal Constitutional Court (GFCC) offers one of the most interesting examples in this respect. The GFCC has been giving the European integration process impulses since Solange I, primarily through its case law on fundamental rights protection (Solange I and Solange II) and its case law on two primary Treaties (Maastricht and Lisbon). It has, however, not yet referred a question for a preliminary ruling to the ECJ up until now. In a first part of the thesis, the central question relates to the reasons of the absence of preliminary rulings to the ECJ by the GFCC on the one hand and the conditions and features of the review standards applied by the GFCC to the absence of preliminary references by the ordinary courts of last instance (“Fachgerichte”) under the perspective of the right to a lawful judge (article 101, 1 Basic Law and article 6, 1 ECHR). This part also allows to shed light on the continuing importance and influence of the Solange II case, more specifically within the context of the concept of “judicial dialogue”. As this part revolves around fundamental rights protection, the GFCC’s case law on the place and effect of the ECHR in the ECtHR’s interpretation is also dealt with. In a second part, the focus shifts to the GFCC’s case law on primary EU-law alleged to be in breach of the principle of attribution of powers, the “ultra vires” review. The ultra vires review was introduced in Maastricht and further elaborated in the Lisbon and Honeywell decisions. Lisbon introduced a new type of review: the identity review which was adduced to the already existing fundamental rights and ultra vires reviews. In this second part the relation between the different types of review is examined, as is the foundation ofthe ultra vires and identity review in the principle of democracy as enshrined in the right to take part in elections for the Bundestag (article 38 Basic Law). Here, the hypothesis is that the GFCC’s concept of democracy is not fully adapted to the post-national organizational structurewhich the EU has become. A third part zooms in on the GFCC’s recent case law on the different mechanisms put in place to remedy the Euro-crisis(EFSF, ESM and the TSGC). This case law serves as a concrete occasion for the GFCC to apply its previous decisions on the different types of review and on the principle of democracy in a complex European legal order. in a fourth and last part the topic of constitutional pluralism is taken recourse to, in order to assess the way in which the GFCC treats the different constitutions within this complex European legal order. Is itsjurisprudence pluralist? To what degree? The hypothesis boils down to the relatively pluralist nature of the GFCC’s European case law, which isnot completely deprived of a sense of German exceptionalism. The vocabulary, used by the GFCC to shape and describe interaction between the domestic legal order and the European legal orders bears testimony to a discourse characterized by the ambivalence between openness towards European law (article 23 Basic Law) and constitutional protectionism based on the tradional modern concept of sovereignty.