Die europarechtsfreundliche Verfassungsidentität in der Kontrolltrias des Bundesverfassungsgerichts

The relationship between the German Federal Constitutional Court and the CJEU has been constantly reformulated and reshaped since the inception of the European Union. As Karlsruhe is not willing to accept the unconditional supremacy of EU Law, it has developed constitutional thresholds concerning the application of EU Law in the national legal order. Starting with its Solange I and Solange II case law, the Constitutional Court held that EU Law and the jurisprudence of the CJEU have to provide for a certain level of fundamental rights' protection, which is required as a minimum by the German Constitution. It is the task of the CJEU to guarantee the protection of fundamental rights throughout the EU in every single case, while the Federal Constitutional Court would, in collaboration with the CJEU, restrict itself to only ensuring the general compliance with minimum requirements in fundamental rights' protection. Another constraint for the applicability of EU Law in the national legal order is found in the so called ultra vires review. The Federal Constitutional Court asserts the right to declare EU legislation not applicable, if it exceeds the competence of the EU in a manifest way (according to the Honeywell criteria). In its Lisbon decision, the German Constitutional Court formulated its third tool of constitutional judicial control over EU law: the identity control. While at first it was assumed that this was only a theoretical assertion of national limits to EU law, the Court finally activated this control method for the first time in its Identity Control I decision in December 2015. The Court asserted its function to review sovereign acts determined by Union law if this was indispensable to protect the constitutional identity guaranteed by Art. 79 para. 3 of the Basic Law (GG). Against this background, the article analyses the procedural and substantive requirements of this new constitutional control tool and contrasts it with the Solange II and ultra vires review. It suggests that the new identity control is not a re-shaped form of the former fundamental rights control and cannot be seen as a Solange III. This is because the Constitutional Court, by way of identity review, guarantees, unconditionally and in any individual case – not only generally – the protection of fundamental rights that is indispensable according to Art. 23 para. 1 sentence 3 in conjunction with Art. 79 para. 3 and Art. 1 para. 1 GG. However, the hypothesis is put forward that ultra vires control is only a special form of identity review. The former is also enshrined in Art. 23 para. 1 sentence 3 in conjunction with Art. 79 para. 3 GG and is justified by the mandatory requirements concerning democratic legitimacy and the rule of law posed in Art. 79 para. 3 GG. The criteria formulated in the Honeywell decision by the Constitutional Court can therefore also be derived from the substantive content of constitutional identity. However, the ultra vires control should nevertheless keep its role as a separate review method. It formulates the specific requirements set by the identity control in the area of transgression of competences and is therefore more easily applicable for constitutional judicial practice. The last part of the paper examines the latest decision by the Federal Constitutional Court dealing with the question of restricting the precedence of Union law due to constitutional thresholds, namely the OMT-Case. Unexpectedly, the court addresses the dogmatic question of the relationship between ultra vires control and identity review and the decision confirms the findings and conclusions in this article in essential parts. Both the OMT and the Identity Control I decisions are milestones in shaping the relationship between the European and the national legal order, which have, however, in the present cases not provoked a clash between the CJEU and the Federal Constitutional Court. Yet, it is still for the future constitutional court prac